Bill Text: NY S08474 | 2023-2024 | General Assembly | Introduced
Bill Title: Incorporates the city of Staten Island; enacts a city charter; provides for all necessary technical changes for the establishment of such city; provides for a transition period prior to such establishment.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced) 2024-02-02 - REFERRED TO FINANCE [S08474 Detail]
Download: New_York-2023-S08474-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8474 IN SENATE February 2, 2024 ___________ Introduced by Sen. LANZA -- read twice and ordered printed, and when printed to be committed to the Committee on Finance AN ACT to incorporate the city of Staten Island; to enact a charter for the city of Staten Island; to provide a period of transition prior to the establishment of the city of Staten Island; to amend the education law, in relation to the establishment of the city school district of the city of Staten Island; to amend the education law, in relation to the transfer of the college of Staten Island of the city university of New York to the state university of New York; to amend the judiciary law, in relation to providing for the judiciary within the city of Staten Island; to amend the public housing law, the education law, the public authorities law and the private housing finance law, in relation to providing membership on certain authorities for the city of Staten Island; to amend the executive law, the elder law and the social services law, in relation to probation and social services within the city of Staten Island; to amend the county law, in relation to the treatment of the county of Richmond in similar fashion to coun- ties within a city having a population of one million or more; to amend the election law, the state finance law and the surrogate's court procedure act, in relation to making conforming changes relating to the establishment of the city of Staten Island; to amend the gener- al municipal law, in relation to the city of Staten Island industrial development agency; to amend the local emergency housing rent control act, the emergency tenant protection act of nineteen seventy-four, the general business law and the real property tax law, in relation to the continuation of existing housing regulations for the city of Staten Island; to amend the tax law, the state finance law, the public authorities law and the New York state financial emergency act for the city of New York, in relation to applicability of the authority of the financial control board; to amend the general city law, chapter 772 of the laws of 1966 relating to imposition of a city business tax and the tax law, in relation to providing authority for the city of Staten Island to continue presently applicable taxes within such city; to enact the administrative code of the city of Staten Island, in relation to procedures and administration of essential city services and the authority of such city to impose taxes; and making appropri- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13972-01-4S. 8474 2 ations to advance moneys for the establishment of the city of Staten Island and the city school district of the city of Staten Island The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 THE CITY OF STATEN ISLAND ACT 2 CONTENTS 3 SECTION(S) SUBJECT 4 1-001 Short title. 5 1-002 Legislative history, findings and intent and statement of 6 purposes. 7 1-003 Definitions. 8 1-004 Incorporation. 9 2-001 Charter of the city of Staten Island. 10 3-001 Legislative findings and declaration of purposes. 11 3-002 Elections. 12 3-003 Staten Island city government-transition. 13 3-004 Employees of the city of Staten Island. 14 3-005 Assistance to the city of Staten Island. 15 3-006 Provision of municipal services on the city of Staten 16 Island. 17 3-007 Debt, property, obligations and other allocations. 18 3-008 Continuance of municipal services. 19 3-009 Powers of the city of Staten Island to adopt and amend 20 local laws. 21 3-010 Powers of the city of Staten Island relating to home 22 rule powers. 23 4-001-4-020 City school district of the city of Staten Island. 24 5-001-5-003 Transfer of The College of Staten Island. 25 6-001 Interim court structure for the city of Staten Island. 26 7-001-7-002 New York city housing authority. 27 7-003-7-005 New York city construction fund. 28 7-006-7-008 New York city municipal water finance authority. 29 7-009 New York city housing development corporation. 30 7-010 Dormitory authority act; court facilities and combined 31 occupancy structures. 32 7-011 New York city school construction authority. 33 8-001-8-023 Municipal powers; authority of the county of Richmond 34 and the city of Staten Island. 35 9-001-9-017 Municipal services; city of Staten Island. 36 10-001-10-008 Landlord-tenant relationships. 37 11-001 Constitutional real property tax limitations; city of 38 Staten Island. 39 12-001-12-020 Municipal assistance corporation for the city of New York; 40 revenues. 41 13-001 Taxes; tax collection authority. 42 14-001 Administrative code of the city of Staten Island. 43 15-001 Appropriations; transition government and establishment of 44 the city of Staten Island. 45 15-002 Appropriation; city school district of the city of StatenS. 8474 3 1 Island. 2 16-001 Severability. 3 17-001 Effective date. 4 Section 1-001. Short title. This act shall be known and may be cited 5 as "The City of Staten Island Act". 6 § 1-002. Legislative history, findings and intent and statement of 7 purposes. 1. The legislature hereby finds, determines and declares: 8 (a) that Article IX, section 1 of the New York State Constitution 9 states that "effective local self-government and intergovernmental coop- 10 eration are purposes of the people of the state" and subdivision (a) of 11 section 2 of Article IX, further declares that "the legislature shall 12 provide for the creation and organization of local government;" 13 (b) that consistent with these constitutional provisions and in order 14 to provide for an effective republican form of government in accordance 15 with the constitution of the United States of America, the people of the 16 state of New York, represented in the senate and assembly, did enact 17 chapter 773 of the laws of 1989, as amended by chapter 17 of the laws of 18 1990, which authorized the borough of Staten Island, upon approval by 19 referendum to consider formally separating from its existing municipal 20 government, authorized the creation of a charter commission for the city 21 of Staten Island, authorized, upon approval of a subsequent referendum, 22 the adoption of a charter, and most importantly, required that within 23 three months of adoption of the charter by the voters of Staten Island, 24 the charter commission submit to the governor and the legislature, 25 proposed legislation enabling the borough of Staten Island to disengage 26 and separate from its existing municipal government, and that only upon 27 enactment of such enabling legislation, could the charter for the city 28 of Staten Island take effect; 29 (c) that the legislature, in requiring the subsequent enactment of 30 enabling legislation before a charter for the city of Staten Island 31 could take effect, reaffirmed its paramount constitutional authority to 32 distribute the powers of local government, as between city and county 33 governments, as it deems best; 34 (d) that preserving historical and natural boundaries, as well as the 35 integrity of political subdivisions of the state, and providing meaning- 36 ful representation of the smaller boroughs in the city of New York 37 affairs, are among those legitimate state interests and policies which 38 have been validated by the federal courts; 39 (e) that the people of the state of New York enacted chapter 773 of 40 the laws of 1989, as subsequently amended, to provide a process by which 41 the people of Staten Island could carefully study and consider the legal 42 disengagement and separation of the borough of Staten Island from the 43 city of New York as an acceptable means of implementing the substantial 44 state interest in providing effective local self-government for the 45 citizens of Staten Island; and 46 (f) that the issues of legal disengagement and separation of the 47 borough of Staten Island from the city of New York raise concerns of 48 statewide importance, not limited to Staten Island residents or New York 49 city residents. 50 2. The legislature further finds, determines and declares: 51 (a) that the New York State Constitution entitles the people of Staten 52 Island to "effective local self-government;" 53 (b) that the existing charter of the city of New York does not provide 54 meaningful representation to the borough of Staten Island, therefore 55 precluding "effective local self-government;"S. 8474 4 1 (c) that given the constraints of the United States Supreme Court 2 articulated in Board of Estimate of the City of New York v. Beverly 3 Morris, 489 US 103 (1989), the only viable alternative to providing 4 "effective local self-government" is legal disengagement and separation 5 from the city of New York and the creation of the new city of Staten 6 Island; 7 (d) that such legal separation of Staten Island from the city of New 8 York is economically feasible, with minimal fiscal impact on the state 9 of New York; 10 (e) that the city of New York should have a meaningful role and the 11 opportunity to provide significant input in the process by which Staten 12 Island legally disengages and separates from the city of New York, 13 including participation in a transition period, but the city of New York 14 should not in the exercise of the aforesaid role, be permitted to unila- 15 terally prevent the legal disengagement and separation of Staten Island; 16 and 17 (f) that in connection with the process of legal disengagement and 18 separation, there is hereby specifically delegated to a group of repre- 19 sentatives from both the city of New York and the proposed city of 20 Staten Island the task of evaluating and accounting for the allocation 21 of all assets and liabilities, as well as the provision of municipal 22 services during the transition period, all of which shall be determined 23 in the context of the overall best interest of the state of New York. 24 3. The legislature further finds, determines and declares: 25 (a) that by virtue of the authority vested in the legislature by the 26 New York State Constitution to provide for the "creation and organiza- 27 tion of local governments" as well as for "effective local self-govern- 28 ment" and "intergovernmental cooperation," the interests of the people 29 of the state would be served and promoted by the separation and creation 30 of a new municipality to be called the city of Staten Island; and 31 (b) that in furtherance of such purposes, the recommendations of the 32 charter commission shall be implemented in connection with the creation 33 of the city of Staten Island. 34 4. The legislature further finds, determines and declares that the 35 establishment of the city of Staten Island is authorized by the New York 36 State Constitution, constitutes a state purpose for the benefit of the 37 people of the state of New York and therefore the city of Staten Island 38 Act is hereby enacted. 39 § 1-003. Definitions. As used in this act, the following terms shall 40 have the following meanings: 41 1. "Effective date of this charter" shall mean the first of November 42 next succeeding the date on which this act shall have become a law. 43 2. "Date of incorporation of the city of Staten Island" or "date of 44 incorporation" shall mean the date on which the city of Staten Island is 45 incorporated, the first of January next succeeding the date on which 46 this act shall have become a law. 47 3. "Date of establishment of the city of Staten Island" or "date of 48 establishment" shall mean the date on which the city of Staten Island is 49 first authorized to exercise full municipal authority, except for judi- 50 cial authority, over the citizens and territory of the city of Staten 51 Island, the first of July in the second year next succeeding the year in 52 which this act shall have become a law. 53 4. "Transition period" shall mean the period of time between the date 54 of incorporation and the first of July in the second year next succeed- 55 ing the year in which this act shall have become a law from and includ- 56 ing the date of incorporation until the date of establishment.S. 8474 5 1 5. "Preceding municipality" shall mean the city government for the 2 geographical area of the city of Staten Island existing immediately 3 prior to the incorporation of the city of Staten Island and which shall 4 exercise full municipal powers and duties for such area during the tran- 5 sition period. 6 6. "Judiciary transition period" shall mean the period of time between 7 the date of incorporation of the city of Staten Island and December 8 thirty-first in the fifth year following such incorporation or until the 9 provisions of article 5-C of the judiciary law are specifically super- 10 seded by state law. At the conclusion of the judiciary transition peri- 11 od, the city of Staten Island shall be authorized to exercise full judi- 12 cial authority over the citizens and territory of the city of Staten 13 Island. 14 § 1-004. Incorporation. The city of Staten Island is hereby incorpo- 15 rated on the first of January next succeeding the date on which this act 16 shall have become a law. The boundaries of such city shall be as 17 described in section 1-02 of the charter of the city of Staten Island as 18 set forth in section 2-001 of this act. During the transition period 19 such city shall not have the powers or duties of a municipality except 20 those which are provided for pursuant to this act to provide for the 21 transition of government and the establishment of such city. During the 22 transition period, the preceding municipality shall possess and exercise 23 full municipal powers and duties for the area to become the city of 24 Staten Island except for those powers and duties as may be provided by 25 the provisions of this act. Powers and duties of the city of Staten 26 Island not yet in effect shall remain with the preceding municipality 27 until such time as those powers and duties are transferred to the city 28 of Staten Island pursuant to the provisions of this act. Except as 29 otherwise provided by this act, full powers and duties shall devolve to 30 the city of Staten Island on the first of July in the second year next 31 succeeding the date on which this act shall have become a law. The 32 following powers, duties and functions regarding the judiciary during 33 the judicial transition period and other matters as jointly determined 34 by the city of Staten Island and the preceding municipality in accord- 35 ance with the provisions as outlined elsewhere in this act, will be 36 shared by both municipalities. The city of Staten Island shall be estab- 37 lished on the first of July in the second year next succeeding the date 38 on which this act shall have become a law, on which date the city of 39 Staten Island shall possess full municipal powers and duties as are 40 provided under law and the preceding municipality shall cease to possess 41 municipal powers and duties regarding the city of Staten Island. 42 § 2-001. Charter of the city of Staten Island. The city charter of 43 the city of Staten Island is enacted to read as follows: 44 Charter of the City of Staten Island 45 Table of Contents 46 Preamble 47 Chapter 1 General Provisions 48 Chapter 2 Powers of the City 49 Chapter 3 Mayor 50 Chapter 4 Common Council 51 Chapter 5 Comptroller 52 Chapter 6 The Budgetary Process: Expense and Capital 53 Chapter 7 Planning Department 54 Chapter 8 Franchises 55 Chapter 9 ContractingS. 8474 6 1 Chapter 10 Referendum and Amendment 2 Chapter 11 Property of the City 3 Chapter 12 Personnel Management 4 Chapter 13 Equal Employment Practices Commission 5 Chapter 14 Collective Bargaining 6 Chapter 15 Transitory Provisions 7 Chapter 16 Labor Relations 8 CHARTER OF THE CITY OF STATEN ISLAND 9 Preamble 10 The People of Staten Island, exercising their right to propose a 11 government of their choosing through which all people can be effectively 12 represented, do hereby adopt this Charter. 13 The birth of a city, must, of necessity, take place in an aura of 14 excitement and great expectations. When it occurs at a time when society 15 is experiencing strong institutional challenges in a climate of skepti- 16 cism, it places heavy burdens on those responsible for leadership to 17 sustain a commitment by the people to live and function together as a 18 community. 19 The provision of a structure of governance at the local level is an 20 extraordinary and crucial responsibility. Sophocles wisely observed that 21 "the city is the people." The City of Staten Island must place a high 22 premium on assuring meaningful participation of its citizenry in the 23 governmental decisions affecting their lives. 24 We must respect the principles of equality and of the social dignity 25 of all of our residents and provide for the complete development of the 26 individual, promoting actions which favor the advancement of men and 27 women in realizing their fullest potential. We must embrace policies 28 that promote and give effectiveness to the rights of every person, with 29 particular attention to those who face special challenges, in striving 30 for a full life. 31 We must assert a policy of favoring equal opportunity employment for 32 all women and men. We must foster a culture that is peaceful and non- 33 violent and that safeguards the rights of all inhabitants to carry out 34 their lawful activities on Staten Island. 35 We should give strong supportive efforts for the conservation and 36 defense of the environment along with the advancement of the cultural 37 and natural values that sustain them. We consent to be governed by the 38 new municipality in the belief that a smaller, localized city government 39 may effectively and responsibly balance the needs of the people with the 40 cost of providing municipal services. 41 The City of Staten Island can serve as a model for the promotion of 42 the common welfare, the guarantor of individual liberties and the guard- 43 ian of the social, spiritual, economic and cultural concerns of its 44 inhabitants. 45 We believe this act of self determination to be in the best interests 46 of the people of Staten Island and the people of the City of New York 47 and we hope that together, as sister cities, we can work cooperatively 48 in efforts of regional concern and for the betterment of New York State. 49 Chapter 1 50 General Provisions 51 § 1-01. Incorporation. 52 The citizens of the State of New York from time to time inhabitants of 53 the territory in the County of Richmond, included in the boundaries set 54 forth in section 1-02 of this chapter, shall be known as the City ofS. 8474 7 1 Staten Island, and shall be a municipal corporation in perpetuity under 2 the name of "The City of Staten Island." 3 § 1-02. Boundaries. 4 The City of Staten Island shall consist of all the territory known as 5 Richmond county, which shall contain all that part of the state, bounded 6 on the north by the center line of the Kill Van Kull which center line 7 would extend easterly to the extension of the center line of North River 8 and Upper New York Bay, then on the east by the extension of the afore- 9 mentioned center line of Upper New York Bay running southerly through 10 the Narrows between Richmond county and Kings county and continuing 11 through Lower New York Bay to the Atlantic Ocean, and bounded on the 12 south east by the Atlantic Ocean to the boundary of the state of New 13 York and the state of New Jersey at Raritan Bay, and on the west follow- 14 ing the center line of the Kill Van Kull and the center line of the 15 Arthur Kill which is the boundary between the state of New York and the 16 state of New Jersey, including Staten Island, Island of Meadows, Pralls 17 Island, Hoffman Island, Swinburne Island, that part of Shooters Island 18 within the state of New York, and all other islands or parts thereof 19 situated within the aforedescribed bounds. 20 Chapter 2 21 Powers of the City 22 § 2-01. Powers. 23 The city shall have and may exercise all powers necessary for local 24 self-government and any additional powers and authority which are now or 25 may be hereafter granted to it under the Constitution or laws of this 26 State, as fully and completely as though such powers were specifically 27 enumerated in this Charter and no enumerations of particular powers in 28 this Charter shall be held to be exclusive but shall be held to be in 29 addition to this general grant of powers. 30 § 2-02. Purposes. 31 All city powers shall be used to serve and advance the general 32 welfare, health, happiness, safety and aspirations of its inhabitants, 33 present and future, and to encourage their full participation in the 34 process of governance. 35 Chapter 3 36 Mayor 37 § 3-01. Executive power. 38 The executive power of the city shall be vested in and exercised by 39 the mayor as chief executive officer. 40 § 3-02. Election; term. 41 The mayor shall be elected at the first general election following the 42 effective date of this charter and every fourth year thereafter. The 43 mayor shall hold office for a term of four years commencing on the first 44 of January after each such election. 45 § 3-03. Qualifications. 46 The mayor shall be a citizen of the United States, a qualified elector 47 of the city, and shall have been a resident of the city for at least one 48 year immediately preceding his/her election. 49 § 3-04. Deputy mayor. 50 The mayor shall appoint and at pleasure remove a deputy mayor who 51 shall have such powers and duties as may be assigned by the mayor and 52 who shall act temporarily as mayor in case of the mayor's temporary 53 inability, absence or illness as is provided by this charter. 54 § 3-05. Removal of the mayor. 55 The mayor may be removed from office by the governor upon charges and 56 after service upon him or her of a copy of the charges and an opportu-S. 8474 8 1 nity to be heard in his or her defense. Pending the preparation and 2 disposition of charges, the governor may suspend the mayor for a period 3 not exceeding thirty days. 4 § 3-06. Succession. 5 (a) In case of the suspension of the mayor from office, the mayor's 6 temporary inability to discharge the powers and duties of the office of 7 mayor by reason of sickness or otherwise, or the mayor's absence from 8 the city, the powers and duties of the office of mayor shall devolve 9 upon the deputy mayor or an acting mayor in case of a vacancy in the 10 office of deputy mayor pending a special election to fill the vacancy in 11 the office of mayor as provided in subdivision (c) of this section. 12 While so acting temporarily as mayor the deputy mayor or acting mayor 13 shall not exercise any power of appointment to or removal from office; 14 and shall not, until such suspension, inability or absence shall have 15 continued nine days, sign, approve or disapprove any local law or resol- 16 ution, unless the period during which the mayor can act thereon would 17 expire during said nine days in which case the deputy mayor or acting 18 mayor in case of a vacancy in the office of deputy mayor shall have the 19 power to disapprove the same within forty-eight hours before the time to 20 act expires. 21 (b) In case of a failure of a person elected as mayor to qualify, or a 22 vacancy in the office caused by the mayor's resignation, removal, death 23 or permanent inability to discharge the powers and duties of the office 24 of mayor, such powers shall devolve upon the deputy mayor or acting 25 mayor in case of a vacancy in the office of deputy mayor pending a 26 special election to fill the vacancy for the remainder of the unexpired 27 term in the office of mayor as provided in subdivision (c) of this 28 section, such special election to take place thirty days after the proc- 29 lamation that such vacancy exists. 30 (c) Within seven days of the occurrence of a vacancy in the office of 31 mayor, the council shall proclaim the date for the special election to 32 fill the vacancy required by this subdivision and such election shall 33 take place thirty days after said proclamation. The council shall 34 provide notice of such proclamation to the city clerk and board of 35 elections and publish notice thereof, and the board of elections shall 36 mail notice of such election to all registered voters within the city 37 and shall conduct such special election thirty days after the proclama- 38 tion. 39 (d) A party nomination of a candidate for the special election to fill 40 a vacancy in the office of mayor for the remainder of the unexpired term 41 shall be made in the manner prescribed by the rules of the party. 42 (e) An independent nominating petition for the nomination of candi- 43 dates to fill the vacancy must be signed by registered voters numbering 44 five per centum of the total number of votes cast for governor at the 45 last gubernatorial election in the city of Staten Island, excluding 46 blank and void votes, except that not more than two thousand signatures 47 shall be required upon any such petition. 48 (f) Any vacancy in the office of mayor that occurs after July tenth 49 and on or before September nineteenth in any year shall be filled at the 50 general election held in such year. 51 (g) Any vacancy that occurs on or after September twentieth in any 52 year and not later than thirty-seven days before the first Tuesday in 53 December shall be filled at a special election to be held on the first 54 Tuesday in December in such year.S. 8474 9 1 A person elected to fill a vacancy in the office of mayor at a special 2 election shall take office immediately upon qualification and fill the 3 vacancy for the remainder of the unexpired term. 4 § 3-07. Appointment and removal of officers and employees. 5 (a) The mayor shall appoint the heads of administrations, departments, 6 all commissioners, and all other officers not elected by the people 7 including a city clerk, except as otherwise provided in this charter or 8 by law. 9 (b) The mayor, whenever in his or her judgment the public interest 10 shall so require, may remove from office any public officer holding 11 office by appointment from a mayor of the city, except officers for 12 whose removal other provision is made by law. No public officer shall 13 hold his or her office for any specific term, except as otherwise 14 provided by law. 15 § 3-08. General Powers. 16 (a) The mayor, subject to this charter, shall exercise all the powers 17 vested in the city, except as otherwise provided by law. 18 (b) The mayor shall have the power: 19 1. to supervise, direct and control, subject to law, the administra- 20 tive services and departments of government; 21 2. to see that the ordinances of the city and laws of the city and 22 state are properly administered and enforced; 23 3. to prepare and submit to the council an annual report of his or her 24 work, which shall be made public and which shall include a summary of 25 agency service goals, performance measures and actual performance rela- 26 tive to goals for each service delivery program and an appendix of those 27 programs which provide abatements or reductions of taxes for businesses 28 in the city; 29 4. to prepare and submit a budget message and an expense budget and 30 capital budget annually to the council for its consideration and neces- 31 sary action in accordance with this charter and the city code; 32 5. to call special sessions of the council; 33 6. to approve or to veto acts of the council in the manner prescribed 34 by this charter; 35 7. to inquire into the conduct of any city department, agency, board 36 or commission, except elected officials and their offices; and to make 37 investigation as to municipal affairs and, for that purpose, may subpoe- 38 na witnesses, administer oaths and compel production of books, papers 39 and other evidence. Failure to obey such subpoena or to produce books, 40 papers or evidence as ordered under this section shall be punishable as 41 a misdemeanor; 42 8. to create or abolish bureaus, divisions or positions within the 43 executive office of the mayor or city departments as he or she may deem 44 necessary to fulfill mayoral duties; 45 9. to delegate to or withdraw from any member of said office, speci- 46 fied functions, powers and duties, except the mayor's power to act on 47 local laws or resolutions of the council or to appoint or remove offi- 48 cials; 49 10. to perform all such duties as may be presented for the mayor in 50 this charter, or other law, or by act of the council. 51 (c) Notwithstanding any other provision of law, the mayor shall have 52 the powers of a finance board under the local finance law and may exer- 53 cise such powers without regard to any provision of law prescribing the 54 voting strength required for a resolution or action of such finance 55 board, provided, however, that whenever the mayor determines that obli- 56 gations should be issued and the amount thereof, the mayor shall certifyS. 8474 10 1 such determination to the comptroller who shall thereupon determine the 2 nature and term of such obligations and shall arrange for the issuance 3 thereof. 4 Chapter 4 5 Common Council 6 § 4-01. Legislative power. 7 The legislative power of the city shall be vested in and exercised by 8 the common council, hereinafter referred to as the council, except as 9 otherwise provided by this charter. 10 § 4-02. Number, election and terms of office of council members. 11 (a) The council shall consist of fifteen members each elected from 12 separate council districts. Eight council members shall be elected from 13 districts denominated "A" districts and seven council members shall be 14 elected from districts denominated "B" districts. The eight council 15 members who represent "A" districts shall be elected at the general 16 election to be held in the years ending in seven, one and five. The 17 seven council members who represent "B" districts shall be elected at 18 the general election to be held in the years ending in seven, nine and 19 three. 20 (b) The boundaries and designations of the council districts shall be 21 drawn and specified pursuant to section 5 of chapter 773 of the laws of 22 1989 and shall remain in effect until altered or changed in accordance 23 with the provisions of this charter. Council members shall be elected at 24 the first general election following the effective date of this charter, 25 except as otherwise provided by transition provisions. The term of 26 office of a council member shall begin on January first following such 27 election and shall be for either a four-year or two-year period as 28 provided in subdivision (a) of this section or until a successor is duly 29 elected and qualified. 30 § 4-03. Qualifications. 31 Each council member shall be a citizen of the United States and shall 32 have been resident of the city for one year immediately preceding his or 33 her election and shall reside in the district from which elected while 34 serving as a council member. Removal of residence from the city or from 35 the council district following election or during the term of office 36 shall constitute immediate forfeiture of office and a vacancy shall 37 exist in the district from which the council member was elected. 38 § 4-04. Organization. 39 The council shall determine the rules of its own proceedings at the 40 first stated meeting of the council in each year. The council by majori- 41 ty vote of all its members shall elect one member as speaker and such 42 other officers as it deems appropriate. 43 § 4-05. Vacancy. 44 (a) The office of a council member shall become vacant upon the 45 member's death, resignation, removal from office or forfeiture of office 46 in any manner authorized by law. A council member shall forfeit that 47 office if the council member violates any express prohibition of this 48 charter or lacks at any time during the term of office for which he or 49 she was elected any qualification for the office prescribed by the char- 50 ter or by law. 51 (b) Within seven days of the occurrence of a vacancy in the council, 52 the mayor shall proclaim the date for a special election to fill the 53 vacancy required by this subdivision and such election shall take place 54 thirty days after said proclamation. The mayor shall provide notice of 55 such proclamation to the city clerk and board of elections and publish 56 notice thereof, and the board of elections shall mail notice of suchS. 8474 11 1 election to all registered voters within the district in which the 2 vacancy has occurred and shall conduct such special election thirty days 3 after the proclamation. 4 (c) A party nomination of a candidate for the special election to fill 5 a vacancy in the council for the remainder of the unexpired term shall 6 be made in the manner prescribed by the rules of the party. 7 (d) An independent nominating petition for the nomination of candi- 8 dates to fill the vacancy must be signed by voters numbering five per 9 centum of the total number of votes cast in the district for governor at 10 the last gubernatorial election in the city, excluding blank and void 11 votes, or as provided by the New York state election law. 12 (e) Any vacancy that occurs in the council after July tenth and on or 13 before September nineteenth in any year shall be filled at the general 14 election held in such year. 15 (f) Any vacancy that occurs on or after September twentieth in any 16 year and not later than thirty-seven days before the first Tuesday in 17 December shall be filled at a special election to be held on the first 18 Tuesday in December in such year. 19 A person elected to fill a vacancy in the council at a special 20 election shall take office immediately upon qualification and fill the 21 vacancy for the remainder of the unexpired term. 22 § 4-06. Powers. 23 (a) All legislative power shall be vested in a council. 24 (b) The council shall have the following additional powers: 25 1. to employ or retain its own staff and consultants including a clerk 26 of the council; 27 2. to conduct investigations in accordance with the provisions of this 28 charter; 29 3. to designate an acting mayor within seventy-two hours of the occur- 30 rence of a vacancy in both the office of mayor and the office of deputy 31 mayor; 32 4. to approve appointments as provided in this charter, except as 33 otherwise mandated by law; 34 5. to exercise the power of removal as provided in this charter; 35 6. to override the veto of a mayor by a two-thirds vote of all the 36 members; 37 7. to disapprove within thirty days any proposed designation by the 38 department of city planning of a landmark, landmark site, interior land- 39 mark, scenic landmark or historic district, provided however, that in 40 the absence of any such disapproval the proposed designation shall 41 become effective thirty days after having been referred to the council 42 by the department of city planning; 43 8. to call a meeting at any time between the council and the mayor 44 jointly to discuss legislation or business of the city in general, and 45 by a two-thirds vote of all the members to compel the attendance of the 46 mayor at a council hearing; and 47 9. to exercise other powers conferred by this charter. 48 § 4-07. Clerk of the council. 49 (a) The council shall appoint a clerk who shall perform such duties as 50 may be prescribed by law. The clerk so appointed shall be the clerk of 51 the council and shall serve at the pleasure of the council. The clerk 52 shall attend the meetings of the council, keep a journal of its 53 proceedings and discharge such other duties as may be prescribed by this 54 charter or other law. 55 (b) The clerk shall keep each local law passed in a book provided for 56 that purpose, with proper indices, which book shall be deemed a publicS. 8474 12 1 record of such local laws, and each local law shall be attested by said 2 clerk. The clerk shall cause to be published all notices, advertising 3 matters or proceedings as required by the provisions of this charter or 4 by other law. It shall be the duty of the clerk to keep open for 5 inspection at all reasonable times the records and minutes of the 6 proceedings of the council. 7 § 4-08. Investigations. 8 The council shall have the power to investigate any matters within its 9 jurisdiction relating to the property, affairs, or government of the 10 city, or to any other powers of the council, or to the effectuation of 11 the purposes or provisions of this charter or any laws relating to the 12 city, and to incur expenses therefor which shall be a general city 13 charge in the absence of an appropriation. The council shall have the 14 power to require the attendance and examine and take testimony under 15 oath of such persons as it may deem necessary and to require the 16 production of books, accounts, papers and other evidence relative to the 17 inquiry kept by any person which may relate to such investigation or the 18 attendance of any person having knowledge of the subject matter of the 19 investigation. 20 § 4-09. Local laws. 21 (a) Except as otherwise provided by law, all legislative action by the 22 council shall be by local law. Every local law shall contain only one 23 subject. The title shall clearly refer to the subject matter. 24 (b) The council shall take no final action on any legislation until a 25 minimum of three days, exclusive of Sundays, has elapsed from the date 26 of its introduction, unless the mayor shall have certified as to the 27 necessity for its immediate passage and such local law be passed by the 28 affirmative vote of two-thirds of all the council members; provided 29 however that general plans, development plans and amendments and 30 revisions thereto shall not be so certified. 31 (c) Every local law passed by the council shall be certified by the 32 clerk of the council and shall be presented to the mayor for approval 33 prior to its effective date. The mayor shall sign the legislation within 34 ten days if approved, but, if not, shall return it to the council 35 together with a written statement of his or her objections. The council, 36 within thirty days may reconsider any legislation disapproved by the 37 mayor and may pass it by a two-thirds vote of all the members. If the 38 mayor fails to sign or return legislation to the council with reasons 39 for disapproval, it shall become law as of its effective date, thirty 40 days after submission to the mayor. 41 (d) No proposed local law or budget modification shall be voted on by 42 a council committee or the council unless it is accompanied by a fiscal 43 impact statement containing the following information: 44 1. the fiscal year in which the proposed law or modification would 45 first become effective and the first fiscal year in which the full 46 fiscal impact of the law or modification is expected to occur; 47 2. an estimate of the fiscal impact of the law or modification on the 48 revenues and expenditures of the city during the fiscal year in which 49 the law or modification is to first become effective, during the 50 succeeding fiscal year, and during the first fiscal year in which the 51 full fiscal impact of the law or modification is expected to occur; and 52 3. a list of sources of information used in its preparation. 53 (e) All agency heads shall promptly provide to any council committee 54 any information that it requests to assist it in preparing a fiscal 55 impact statement. 56 § 4-10. Districting commission.S. 8474 13 1 (a) There shall be a districting commission consisting of seven 2 members appointed as provided in this section. 3 (b) Each member of the commission shall be a citizen of the United 4 States and shall have been a resident of the city for one year imme- 5 diately preceding his or her appointment. 6 (c) The majority leader in the council shall appoint three members of 7 the commission. 8 (d) The minority leader in the council shall appoint two members of 9 the commission. 10 (e) If only one political party has a council delegation, then the 11 chairpersons of the county committees of the political party with no 12 council delegation which, at the time of the last general election for 13 council preceding the time at which such appointments are required to be 14 made, had the second and third highest number of votes cast in that 15 election, shall each appoint one member of the commission. 16 (f) The mayor shall appoint two additional members who shall not be 17 members of the same political party. 18 (g) In the event of a vacancy by death, resignation or otherwise, a 19 new member enrolled in the same political party from which his or her 20 predecessor was selected shall be appointed in the same manner as the 21 member whose departure from the commission created the vacancy and shall 22 serve for the balance of the term remaining. 23 (h) The members of the commission shall elect one of the seven members 24 to serve as the chair of the commission. 25 § 4-11. Powers of the districting commission. 26 (a) Following each decennial census, the commission shall prepare a 27 plan for dividing the city into districts for the election of council 28 members. 29 (b) The commission shall submit its plan to the council for its final 30 adoption and such plan shall not be subject to any mayoral action in 31 order to become effective. 32 § 4-12. Community advisory boards. 33 (a) The common council is hereby authorized to create, by local law, 34 one or more community advisory board districts and corresponding commu- 35 nity advisory boards to consider the needs of such districts, and to 36 cooperate with, consult, assist and advise members of the common coun- 37 cil, as well as any public officer, agency, and local administrators of 38 such agencies, with respect to any matter relating to the welfare of the 39 residents of such districts. 40 (b) The number of community advisory boards and the number of members 41 appointed to serve on such board or boards shall be determined by the 42 common council as it deems appropriate. 43 (c) In addition, the boundary lines of the community advisory board 44 districts created hereunder shall be coterminous with the boundary lines 45 of one or more council districts so that no council district shall be 46 included in more than one community advisory board district. 47 (d) Members of the community advisory boards shall serve without 48 compensation and shall serve for not more than two (2) consecutive two- 49 year terms so as to maximize the opportunities for meaningful partic- 50 ipation in local government for all city residents, and to preserve the 51 spirit and long-standing tradition of excellent voluntarism on Staten 52 Island. 53 Chapter 5 54 Comptroller 55 § 5-01. Election; term.S. 8474 14 1 The comptroller shall be elected by the electors of the city at the 2 same time and for the same term as this charter prescribes for the 3 mayor. The comptroller shall serve for a term of four years commencing 4 on the first of January following such election and until a successor is 5 elected and qualified. 6 § 5-02. Powers and duties. 7 (a) The comptroller shall have the following powers and duties: 8 1. to advise the mayor and the council on the financial condition of 9 the city or any phase thereof; 10 2. to make recommendations, comments and criticisms in regard to the 11 operations, fiscal policies and financial transactions of the city as he 12 or she may deem advisable; 13 3. to audit and investigate all matters relating to or affecting the 14 finances of the city, including without limitation the performance of 15 contracts and the receipt and expenditure of city funds, and for such 16 purpose shall have the power to require the attendance and examine and 17 take the testimony under oath of such persons as the comptroller may 18 deem necessary; 19 4. to submit an annual report to the mayor and the council showing 20 revenues, receipts and expenditures, the sources from which the revenues 21 and funds are derived and how they have been disbursed; 22 5. to inspect, revise and prescribe the form of reports and accounts 23 of the agencies, trusts, the council and units of government; 24 6. to audit all agencies, trusts, the council and units of government 25 whenever the comptroller decides it is necessary or is directed to 26 conduct such an audit either by the mayor or by the council. The comp- 27 troller shall be entitled to obtain access to agency records required by 28 law to be kept confidential, other than records which are protected by 29 the privileges for attorney-client communications, attorney work 30 products, or material prepared for litigation, upon a representation by 31 the comptroller that necessary and appropriate steps will be taken to 32 protect the confidentiality of such records. 33 (b) The comptroller shall establish a regular auditing cycle to ensure 34 that one or more of the programs or activities of each city agency, or 35 one or more aspects of each agency's operations, is audited at least 36 once every four years. The audits conducted by the comptroller shall 37 comply with generally accepted government auditing standards. In accord- 38 ance with such standards, and before any draft or final audit or audit 39 report, or portion thereof, may be made public, the comptroller shall 40 send a copy of the draft audit or audit report to the head of the audit- 41 ed agency and provide the agency, in writing, with a reasonable deadline 42 for its review and response. The comptroller shall include copies of any 43 such agency response in any draft or final audit or audit report, or 44 portion thereof, which is made public. The comptroller shall send copies 45 of all final audits and audit reports to the mayor and the council. 46 (c) The comptroller shall establish for his or her office and for all 47 city agencies a uniform system of accounting and reporting based on 48 generally accepted accounting principles. 49 (d) The comptroller shall perform such other functions and duties as 50 may be required by other provisions of this charter or by law. 51 § 5-03. Qualifications. 52 The comptroller shall be a citizen of the United States, a qualified 53 elector of the city, and shall have been a resident of the city for at 54 least one year immediately preceding his or her election. 55 § 5-04. Deputy comptroller.S. 8474 15 1 The comptroller shall appoint and at pleasure remove a deputy comp- 2 troller who in case of a vacancy in the office or in case of the illness 3 or inability of the comptroller to act shall have the same powers and 4 perform the same duties as the comptroller. The qualifications of the 5 nominee for the position of deputy comptroller shall be submitted to the 6 council by the comptroller and the nominee may be requested to appear in 7 person before the council to respond to questions concerning those qual- 8 ifications. 9 § 5-05. Vacancy. 10 (a) Any vacancy in the office of comptroller shall be filled by 11 special election in accordance with the provisions of this charter. In 12 the event of a vacancy in the office of the comptroller or whenever by 13 reason of sickness, absence from the city or suspension from office, the 14 comptroller shall be prevented from attending to the duties of the 15 office, the deputy comptroller shall act as comptroller. 16 (b) Within seven days of the occurrence of a vacancy in the office of 17 comptroller, the mayor shall proclaim the date for the special election 18 required by this subdivision and such election shall take place thirty 19 days after said proclamation. The mayor shall provide notice of such 20 proclamation to the city clerk and board of elections and publish notice 21 thereof, and the board of elections shall mail notice of such election 22 to all registered voters within the city and shall conduct such special 23 election thirty days after the proclamation. 24 (c) A party nomination of a candidate for the special election to fill 25 a vacancy in the office of comptroller for the remainder of the unex- 26 pired term shall be made in the manner prescribed by the rules of the 27 party. 28 (d) An independent nominating petition for the nomination of candi- 29 dates to fill the vacancy must be signed by registered voters numbering 30 five per centum of the total number of votes cast for governor at the 31 last gubernatorial election in the city, excluding blank and void votes, 32 except that not more than two thousand signatures shall be required upon 33 any such petition. 34 (e) Any vacancy in the office of comptroller that occurs after July 35 tenth and on or before September nineteenth in any year shall be filled 36 at the general election held in such year. 37 (f) Any vacancy that occurs on or after September twentieth in any 38 year and not later than thirty-seven days before the first Tuesday in 39 December shall be filled at a special election to be held on the first 40 Tuesday in December in such year. 41 A person elected to fill a vacancy in the office of comptroller at a 42 special election shall take office immediately upon qualification and 43 fill the vacancy for the remainder of the unexpired term. 44 Chapter 6 45 The Budgetary Process: 46 Expense and Capital 47 § 6-01. Budgetary responsibilities of the mayor. 48 (a) The mayor shall annually prepare and submit to the council prelim- 49 inary and executive budgets, each of which shall present a complete 50 financial plan for the city and its agencies for the ensuing fiscal year 51 and the three succeeding fiscal years. Each such budget shall consist of 52 three parts: the expense budget, which shall set forth proposed appro- 53 priations for the operating expenses of the city including debt service, 54 and interfund transfers; the capital budget and program, which shall set 55 forth proposed appropriations for capital projects; and the revenueS. 8474 16 1 budget, which shall set forth the estimated and anticipated revenues and 2 receipts of the city, as well as any other anticipated sources and uses 3 of funds. 4 (b) The mayor shall appoint the director of the budget who shall 5 assist the mayor in the preparation and the administration of the budg- 6 et. The director shall perform all such duties in regard to the budget 7 and related matters as the mayor may direct. The director shall have the 8 power personally or through representatives, to survey each agency for 9 the purpose of ascertaining its budgetary requirements. The director may 10 require any agency, or any officer or employee, to furnish data and 11 information and to answer inquiries pertinent to the exercise of any of 12 the director's duties in regard to the budget and related matters. 13 § 6-02. Spending pursuant to appropriations. 14 (a) No money, except for grants or gifts from private entities, shall 15 be paid from any fund under the management of the city, or any fund 16 under the management of any agency or officer of the city, or any other 17 entity the majority of the members of whose board are city officials or 18 are appointed directly or indirectly by city officials, except in 19 pursuance of an appropriation by the council or other specific legal 20 authorization provided, however, that: 21 1. if at any time the council shall fail to make an appropriation for 22 the payment of debt service on any debts of the city as they fall due, 23 or for the payments to the several sinking funds, the officer responsi- 24 ble for the collection of taxes shall set apart, from the first revenues 25 thereafter received applicable to the general fund of the city, a sum 26 sufficient to pay such amounts and shall so apply such sum; and 27 2. money, the ownership and equitable title of which belongs to an 28 individual, corporation, organization or government other than the city 29 and which is being held by any agency or officer of the city pending 30 transfer of such money to such individual, corporation, organization or 31 government in accordance with the terms and conditions pursuant to which 32 it was placed in the custody of such agency or officer, may be trans- 33 ferred to such individual, corporation, organization or government by 34 such agency or officer without an appropriation by law provided such 35 transfers are made in accordance with such terms and conditions; and 36 3. money or other financial resources may only be transferred from one 37 fund to another without specific statutory authorization for such a 38 transfer if that money or those other financial resources are being 39 loaned temporarily to such other fund and an accurate accounting and 40 reporting of the balance of financial resources in each fund and of the 41 amount due by each fund to each other fund is made at the end of each 42 month; and 43 4. grants or gifts from private entities exempt from the requirements 44 of this section, and expenditures of such funds, shall be subject to 45 disclosure, at least annually, by the responsible agency, officer or 46 entity in a form and containing such information as the mayor shall 47 prescribe for this purpose by rule. 48 (b) The head of each agency of the city, and each entity the majority 49 of the members of whose board are city officials or individuals 50 appointed directly or indirectly by city officials, shall, on or before 51 the fifteenth of October in each year, submit to the mayor and the coun- 52 cil, in such form as the mayor shall prescribe, a statement of the 53 sources, amounts and disposition of all money received by such agency or 54 entity, or by a unit or officer of such agency during the preceding 55 fiscal year, other than money appropriated for the use of such agency or 56 entity by the council, or money paid by such agency or entity into theS. 8474 17 1 city treasury and reported in the annual report of the comptroller for 2 such fiscal year. The mayor shall ensure that copies of such statements 3 are available for public inspection, and shall designate a city officer 4 to maintain copies of such statements for such purpose. 5 § 6-03. Fiscal year. 6 The fiscal year of the city shall commence on July first in each year 7 and shall terminate at midnight on the ensuing June thirtieth. 8 § 6-04. Budgetary process and timeline. 9 Except where noted otherwise, each step should be taken not later than 10 the dates indicated below. 11 (a) Ten-year capital strategy. 12 1. Draft: November first in each even-numbered year. 13 2. Report and hearing on the first draft: January sixteenth in each 14 odd numbered year. 15 3. Mayor's issuance: April twenty-sixth in each odd numbered year. 16 4. Comparison of adopted budget and ten-year capital strategy: thirty 17 days after the budget is adopted in each year. 18 (b) Revenue estimation report of the comptroller and mayor. 19 1. The comptroller shall certify to the mayor the actual revenues for 20 the previous fiscal year: October thirty-first. 21 2. The mayor shall report comparing actual revenues to estimated 22 revenues in the budget as adopted for the previous fiscal year: November 23 fifteenth. 24 (c) Departmental estimates and the mayor's preliminary budget public 25 hearings: such date as the mayor may direct. 26 (d) Report of the comptroller on capital debt and obligations: Decem- 27 ber first. 28 (e) Report of the comptroller on the state of the city's finances to 29 the council: December fifteenth. 30 (f) Preliminary certificate of the mayor on capital debt and obli- 31 gations to the council and comptroller: January sixteenth. At any time 32 up to the submission of the executive capital budget to the council, the 33 mayor may amend such preliminary certificate. 34 (g) Preliminary budget submitted to the council: January sixteenth. 35 (h) Finance commissioner's estimate of assessed valuation, and state- 36 ment of taxes due and uncollected submitted to the mayor and council: 37 February fifteenth. 38 (i) Comptroller's statement of debt service: March first. 39 (j) The council's operating budget. March tenth: the council shall 40 approve and submit to the mayor estimates of its financial needs for the 41 ensuing fiscal year. 42 (k) Council committees' preliminary budget hearings on: 43 1. program objectives and fiscal implications of preliminary budget, 44 draft ten year capital strategy, city planning director's report on the 45 draft strategy, and the status of capital projects and expense appropri- 46 ations previously authorized; and 47 2. recommendations for any changes in the unit of appropriation struc- 48 ture, or any change in the memorandum of understanding of the terms and 49 conditions regarding such units of appropriations; and 50 3. the council's findings and the net effect of the changes recom- 51 mended on the preliminary capital budget shall not exceed the maximum 52 amount set forth in the preliminary certificate: March twenty-fifth. 53 (l) Executive budget, the four-year financial plan and budget message 54 with any accompanying reports and schedules submission for the ensuing 55 fiscal year: April twenty-sixth.S. 8474 18 1 (m) Proposed local laws and home rule requests necessary to implement 2 the recommendations made in the executive budget: as soon after April 3 twenty-sixth as is practicable. 4 (n) Executive budget hearings: the council shall hold public hearings 5 on the budget as presented by the mayor between May sixth and twenty- 6 fifth. 7 (o) Amendment and adoption of the executive budget: by June fifth. 8 1. The council may alter the contents of the budget within the total 9 revenues estimated by the mayor and the maximum debt for capital, except 10 for the amounts set aside for the repayment of debt. 11 2. The budget when adopted by the council shall become effective imme- 12 diately, except appropriations for the council or appropriations added 13 to the mayor's executive budget by the council or any changes in terms 14 and conditions or in the memorandum of understanding regarding such 15 terms and conditions shall be subject to the mayor's veto. 16 3. If an expense budget has not been adopted by the fifth of June, the 17 expense budget and tax rate adopted as modified for the current fiscal 18 year shall be deemed to have been extended for the new fiscal year until 19 such time as a new expense budget has been adopted. 20 4. If a capital budget and a capital program have not been adopted by 21 the fifth of June the unutilized portion of all prior capital appropri- 22 ations shall be deemed reappropriated. 23 (p) Veto of the mayor. 24 1. The mayor, not later than the fifth day after the council has acted 25 upon the budget or capital program submitted with the executive budget, 26 may disapprove: 27 (i) any increase or addition to any such bill or program; 28 (ii) any change in any term or condition of the budget; 29 (iii) any change in a memorandum of understanding regarding the terms 30 and conditions; or 31 (iv) any item, term, condition, or provision of a memorandum included 32 in the budget. The mayor's objections shall be returned in writing to 33 the council by such date. 34 2. The council by a two-thirds vote of all the members may override 35 any disapproval of the mayor; however, if no action by the council is 36 taken within ten days of such disapproval, the expense budget shall be 37 deemed adopted as modified by the mayor's disapprovals. 38 (q) Statement of the amount of the budget and estimate by the mayor. 39 1. The mayor shall submit to the council, immediately upon the 40 adoption of a budget, a statement of the amount of the budget as 41 approved by the council for the ensuing fiscal year and the mayor shall 42 prepare and submit to the council not later than the fifth of June an 43 estimate of the probable amount of: 44 (i) receipts into the city treasury during the ensuing fiscal year 45 from all the sources of revenue of the general fund; and 46 (ii) all receipts other than those of the general fund and taxes on 47 real property. The mayor may include in the statement of the amount of 48 the budget as approved by the council a confirmation of such amount, and 49 thereby waive mayoral veto power. 50 2. If, as a result of the exercise of the mayor's veto, the amount of 51 the budget for the ensuing fiscal year differs from the amount of the 52 budget approved by the council, not later than two days after the budget 53 is finally adopted the mayor shall prepare and submit to the council a 54 statement setting forth the amount of the budget for the ensuing fiscal 55 year, and the council shall, if necessary, fix new annual tax rates.S. 8474 19 1 3. The mayor, prior to establishing the final estimate of revenues for 2 the ensuing fiscal year as required by this section, shall consider any 3 alternative estimate of revenues and which is accompanied by a statement 4 of the methodologies and assumptions upon which such estimate is based 5 in such detail as is necessary to facilitate official and public under- 6 standing of such estimates. 7 4. Any person or organization may, prior to May fifteenth, submit to 8 the mayor an official alternative estimate of revenues for consideration 9 by the mayor. Such estimate shall be in a form prescribed by the mayor. 10 (r) Fixing of tax rates. 11 1. The council shall fix the annual tax rates immediately upon the 12 approval of the budget. The council shall deduct the total amount of 13 receipts as estimated by the mayor from the amount of the budget, for 14 the ensuing fiscal year, and shall cause to be raised by tax on real 15 property such sum as shall be as nearly as possible but not less than, 16 the balance so arrived at, by fixing tax rates in cents and thousandths 17 of a cent upon each dollar of assessed valuation. The tax rates shall be 18 such as to produce a balanced budget within generally accepted account- 19 ing principles for municipalities. 20 2. If a budget has not been adopted by the fifth of June, the tax 21 rates adopted for the current fiscal year shall be deemed to have been 22 extended for the new fiscal year until such time as a new budget is 23 adopted. 24 3. In the event the mayor exercises the veto power, the council shall, 25 if necessary, fix new annual rates not later than the date the budget is 26 finally adopted, in accordance with the requirements of paragraph one of 27 subdivision (s) of this section. 28 (s) Completing the assessment rolls and fixing of tax rates. 29 Notwithstanding the provisions of the above subdivisions or any other 30 provisions of law to the contrary: 31 1. if the city council has not fixed the tax rates for the ensuing 32 fiscal year on or before the fifth of June, the commissioner of finance 33 shall be authorized to complete the assessment rolls using estimated 34 rates and to collect the sums therein mentioned according to law. The 35 estimated rates shall equal the tax rates for the current fiscal year; 36 2. if, subsequent to the fifth of June, the council shall, fix the tax 37 rates for the ensuing fiscal year at percentages differing from the 38 estimated rates, real estate tax payments shall nevertheless be payable 39 in accordance with paragraph one of this subdivision at the estimated 40 rates. However, in such event, prior to the first of January in such 41 fiscal year, the commissioner of finance shall cause the completed 42 assessment rolls to be revised to reflect the tax rates fixed by the 43 council, and an amended bill for the installment or installments for 44 such fiscal year due and payable on or after the first of January shall 45 be submitted to each taxpayer in which whatever adjustment may be 46 required as a result of the estimated bill previously submitted to the 47 taxpayer shall be reflected. 48 (t) Appropriation, certification and publication. 49 Not later than the day after the budget is finally adopted the budget 50 and the several amounts therein specified as appropriations or units of 51 appropriation shall be and become appropriated to the several purposes 52 therein named. The budget shall thereupon be filed in the offices of the 53 comptroller and the city clerk, and shall be published forthwith. 54 (u) Council completion of assessment rolls. 55 At such annual meeting to adopt the budget the council shall cause to 56 be set down in the assessment rolls, opposite to the several sums setS. 8474 20 1 down as the valuation of real property, the respective sums, in dollars 2 and cents, to be paid as tax thereon, rejecting the fractions of a cent. 3 It shall also cause to be added and set down the aggregate valuations of 4 the real property, and shall transmit to the comptroller of the state by 5 mail a certificate of such aggregate valuation. 6 (v) Collection of real property tax. 7 1. Immediately upon the completion of the assessment rolls, the city 8 clerk shall produce the proper warrants authorizing and requiring the 9 commissioner to collect the several sums therein mentioned according to 10 law. Such warrants need be signed only by the speaker of the council and 11 countersigned by the city clerk. Immediately thereafter and on or 12 before the thirtieth of June, the assessment rolls of the city as 13 corrected according to law and finally completed, or a fair copy there- 14 of, shall be delivered by the speaker to the commissioner with the prop- 15 er warrants, so signed and counter signed, annexed thereto. At the same 16 time the speaker shall notify the comptroller of the amount of taxes in 17 each book of the assessment rolls so delivered. 18 2. The commissioner upon receiving the assessment rolls and warrants 19 shall immediately cause the assessment rolls and warrants to be filed 20 with the city clerk. 21 (w) Mayor's financial plan update: thirty days after budget adopted. 22 § 6-05. Format of expense budget departmental estimates, preliminary 23 expense budget, and executive expense budget. 24 (a) The expense budget departmental estimates, the preliminary expense 25 budget, and the executive expense budget for each year shall consist of 26 proposed units of appropriation for personal service and proposed units 27 of appropriation for other than personal service for the ensuing fiscal 28 year. 29 (b) Each agency head, for the departmental estimates, and the mayor, 30 for the executive budget, shall submit: 31 1. a statement of the impact of the proposed units of appropriation on 32 the level of services to be provided during the ensuing fiscal year; and 33 2. for each community within the city as identified in the council's 34 hearings on local and neighborhood budget needs, a written response to 35 each of the expense budget priorities included in the committee's recom- 36 mendations of budget priorities submitted in accordance with provisions 37 of this charter, including the disposition of each such priority and a 38 meaningful explanation of any disapprovals contained in such estimates 39 or budget. 40 (c) Each proposed unit of appropriation shall represent the amount 41 requested for personal service or for other than personal service for a 42 particular program, purpose, or activity within an agency, department, 43 organization or institution; provided, however, that a single unit of 44 appropriation for personal service or a single unit of appropriation for 45 other than personal service may represent the amount requested for more 46 than one particular program, purpose, or activity for an agency, depart- 47 ment, organization or institution if the council has adopted, on the 48 recommendation of the mayor, or if the council has adopted on its own 49 initiative and the mayor has approved, a resolution setting forth the 50 names, and a statement of the programmatic objectives, of each program, 51 purpose, or activity for an agency, department, organization, or insti- 52 tution to be included in such a single unit of appropriation. Copies of 53 such resolutions must be included as an appendix to any preliminary 54 budget, executive budget, and adopted budget to which they apply. If, 55 in accordance with such a resolution, a proposed unit of appropriation 56 for other than personal service shall represent the total amountS. 8474 21 1 requested for other than personal service for more than one proposed 2 unit of appropriation for personal service, the amount of such unit of 3 appropriation for other than personal service which is allocable to each 4 unit of appropriation for personal service shall be set forth for infor- 5 mational purposes at the end of each such unit of appropriation for 6 personal service. If, in accordance with such a resolution, a proposed 7 unit of appropriation for personal service shall represent the total 8 amount requested for personal service for more than one proposed unit of 9 appropriation for other than personal service, the amount of such unit 10 of appropriation for personal service which is allocable to each unit of 11 appropriation for other than personal service shall be set forth for 12 informational purposes at the end of each such unit of appropriation for 13 other than personal service. 14 (d) Each proposed unit of appropriation contained in the departmental 15 estimates, the preliminary expense budget and the executive expense 16 budget shall be accompanied by a statement of the programmatic objec- 17 tives of the program, purpose, activity for the agency, department, 18 organization or institution involved. 19 (e) Each proposed unit of appropriation contained in the departmental 20 estimates and the executive budget shall be supported by line items 21 showing how the total amount of such unit is determined. 22 (f) The departmental estimates shall be in such form and contain such 23 further information as may be required by the mayor or by law. Such 24 departmental estimates shall be public records and which shall at all 25 reasonable times be open to public inspection. 26 (g) For each city agency that has local service districts within 27 communities as defined by local law, where practicable, shall contain a 28 statement of proposed direct expenditures in meaningful categories of 29 information, in each such service district. 30 § 6-06. Preliminary expense budget. 31 The preliminary expense budget shall contain proposed expenditures and 32 a forecast of revenues for the ensuing fiscal year, including, for each 33 tax revenue source which represents five percent or more of the total 34 forecast of tax revenues, a detailed statement of the methodology and 35 assumptions used to determine the forecast of revenues estimated to be 36 received from such source in sufficient detail to facilitate official 37 and public understanding of the manner in which such forecasts are made, 38 shall indicate proposed units of appropriations for personal service and 39 for other than personal service, shall include a financial plan covering 40 estimates of expenditures and revenues for the four ensuing fiscal years 41 in such years, shall include the departmental estimates of agency 42 expenditures for the ensuing fiscal year together with proposed sources 43 of revenue for each unit of appropriation specified therein and shall 44 present a plan to ensure balance between the expense and revenue budgets 45 during the ensuing fiscal year. 46 § 6-07. Contents of the executive expense budget. 47 (a) There shall be included in the budget: 48 1. Units of appropriation, prepared according to this chapter, in such 49 amounts and upon such terms and conditions as may be determined by the 50 mayor. Such appropriations shall include: 51 (i) the amounts required by law to be appropriated to the several 52 sinking funds as certified by the comptroller; 53 (ii) the amount required to pay the interest and principal of city 54 obligations as certified by the comptroller; 55 (iii) an amount, as certified by the comptroller, equal to the average 56 of all expenditures during each of the five preceding fiscal years forS. 8474 22 1 the payment of the expense of the removal of snow and ice, exclusive of 2 salaries and wages of regular employees of the city except for overtime 3 work and for work on Sundays and holidays, and exclusive of the purchase 4 of equipment; 5 (iv) the several amounts which are payable from sources other than the 6 real estate tax levy, provided however that amounts appropriated pursu- 7 ant to chapter nine of this charter which are allocable to a particular 8 program, purpose, activity or institution, shall be included for infor- 9 mational purposes only; 10 (v) such other amounts as may be required by law; 11 (vi) such amounts as shall be determined in the manner provided in 12 this chapter to be necessary to pay the expenses of conducting the busi- 13 ness of the city for the ensuing fiscal year and for other lawful public 14 purposes; and 15 (vii) a reserve for unanticipated contingencies. 16 2. An identification of the proposed appropriations, being proposed by 17 agency and project type and, within project type, by personal service 18 and other than personal service, for the maintenance of all major 19 portions of the capital plant, as such terms are defined in section 6-16 20 of this chapter. 21 3. The terms and conditions under which appropriations shall be admin- 22 istered. 23 (b) All such units of appropriation and other amounts shall be set 24 forth without deduction of revenues from any source except as otherwise 25 provided by law. 26 (c) The budget message, which shall not be deemed a part of the budg- 27 et, shall include: 28 1. an explanation; 29 2. itemized information and supporting schedules; 30 3. recommendations for any changes in revenue sources and fiscal oper- 31 ations; 32 4. an itemized statement of the actual revenues and receipts and 33 accruals of the general fund and of all other revenue sources; 34 5. a listing of the sources and amounts of all revenues and other 35 monies of a nonrecurring nature; 36 6. a four-year financial plan, containing: 37 (i) for each agency, for all existing programs, forecasts of expendi- 38 tures for the ensuing fiscal year and the succeeding three fiscal years 39 at existing levels of service; 40 (ii) forecasts of revenue by source from existing sources of revenue 41 for the ensuing fiscal year and the succeeding three fiscal years; and 42 (iii) for each new or expanded program, an indication of when such 43 program is projected to be fully implemented and a forecast of the annu- 44 al recurring costs for such program or program expansion after it is 45 fully implemented; 46 7. for each agency, a comparison of the proposed appropriations for 47 the ensuing fiscal year; 48 8. an explanation of principal changes in performance goals and indi- 49 cators; 50 9. an itemized statement, covering the city's entire capital plant, 51 except for those portions of the capital plant which have been committed 52 to the care and control of the board of education; 53 10. a presentation of the maintenance activities proposed by the mayor 54 to be completed during the ensuing fiscal year; 55 11. a statement of any substantive changes in the methodology and 56 assumptions used to determine the revenue estimates;S. 8474 23 1 12. a statement of the implications for the orderly development of the 2 city; and 3 13. a certificate setting forth the maximum amount of debt and 4 reserves. 5 § 6-08. Adoption of expense budget and memorandum of understanding. 6 Adoption of expense budget with regard to a memorandum of understand- 7 ing contained in the terms and conditions. 8 (a) The council may increase, decrease, add or omit any amount in the 9 expense budget as submitted by the mayor, or change any terms and condi- 10 tions of the amount in that category, as stipulated in this chapter; the 11 mayor may disapprove any increase or addition to the amounts in the 12 categories, or any change in any term and condition of the budget, as 13 stipulated in this chapter, the mayor's disapproval may be overridden by 14 a two-thirds vote of all of the members of the council. As part of these 15 procedures the final adopted budget shall have within its terms and 16 conditions a memorandum of understanding, the final format and/or the 17 actual character of which shall be determined jointly by the actions of 18 the council and mayor consistent with the provisions for adopting a 19 local law. Such memorandum of understanding may include the provisions 20 by which the executive may have to schedule the timing and amounts of 21 expenditure or delay of expenditure and in what ways those expenditures 22 may be scheduled or delayed and if agreed to through the normal 23 provisions of adopting the budget, the priority of re-scheduling and or 24 delaying those appropriated expenditures or any part thereof those units 25 of appropriations. These details of the memorandum of understanding are 26 not to preclude or substitute for normal budget modification procedures 27 as detailed below; they are intended to deal with those circumstances 28 not covered by budget modification and/or normal impoundment procedures 29 as detailed below. 30 (b) All spending for services shall be in accordance with the terms 31 and conditions of the expense budget as adopted; provided, however, that 32 during any fiscal year the mayor shall notify the council of any 33 proposed modification of such a term or condition, at least thirty days 34 before the intended effective date of the modification in the term or 35 condition. These provisions are not to affect, hinder or substitute for 36 the normal procedures regarding budget modification or impoundment as 37 stipulated elsewhere in this chapter. 38 § 6-09. Appropriations for goods, services or construction. 39 Appropriations for the procurement of goods, services or construction 40 or the provision of services, utilities, or facilities by a department 41 responsible for general services for other agencies and institutions in 42 accordance with the authority of a department responsible for general 43 services under the provisions of this charter shall be made to a depart- 44 ment responsible for general services but shall be segregated under the 45 name of the agency or institution for which they are intended and shall 46 be considered and accounted for as appropriated for such agency or 47 institution. Nothing herein contained shall prevent the designation of 48 part of such appropriations as a general stores account or under other 49 appropriate designation to enable a department responsible for general 50 services to maintain a stock in anticipation of requirements or to 51 provide services, utilities or facilities for joint use by more than one 52 agency or institution. 53 § 6-10. Expense budget administration. 54 (a) Except as otherwise provided by law, no unit of appropriation 55 shall be available for expenditure by any city agency until schedules 56 fixing positions and salaries and setting forth other expenses withinS. 8474 24 1 the units of appropriation are established pursuant to the adopted budg- 2 et, the administration of which is subject to the provisions of this 3 chapter, the state civil service law, and other applicable law. 4 (b) The mayor shall establish and may modify for each agency: 5 1. quarterly spending allotments for each unit of appropriation and 6 2. aggregate position and salary limits for each unit of appropri- 7 ation, which shall be made available for public review upon adequate 8 notice. No agency shall expend any sum in excess of such quarterly 9 spending allotments, or exceed aggregate position and salary limits. The 10 mayor may set aside specified sums as necessary reserves which shall not 11 be included in the quarterly spending allotments until released by the 12 mayor. Each agency shall administer all monies appropriated or available 13 for programs and purposes of the agency in accordance with quarterly 14 allotment plans proposed by the agency and approved or modified by the 15 mayor. Each such plan shall set forth by units of appropriation for the 16 quarter of the fiscal year during which it is to remain in effect: 17 (i) rates of expenditures for personal services and other than 18 personal services; 19 (ii) ceilings on the total number of uniformed, civilian and pedagog- 20 ical employees; and 21 (iii) the total amount of funds to be spent or committed by the agency 22 during such quarter. 23 (c) The mayor shall keep informed during the course of each fiscal 24 year, of the progress of expenditures and the receipt of revenues, and 25 it shall be the duty of all agencies, when requested by the mayor, to 26 supply all information needed for this purpose. 27 (d) The mayor may assume direct responsibility for the administration 28 of the schedule required to be filed by the agency head pursuant to 29 subdivision (a) of this section when in the mayor's judgment the fiscal 30 condition of the city so requires or when an agency: 31 1. is expending funds in excess of the quarterly spending allotments; 32 2. is otherwise not complying with spending allotments or aggregate 33 position and salary limits; or 34 3. is not maintaining adequate accounts pursuant to requirements of 35 this charter. 36 (e) Whenever the mayor determines, pursuant to the provisions of this 37 charter or other relevant statutes, that the full amount of any appro- 38 priation should not be available for expenditure during the fiscal year, 39 the mayor shall notify the council of such determination and the impli- 40 cations and consequences of those impoundments for service levels and 41 programmatic goals affected. The mayor shall respond in writing to a 42 request by the council for an explanation of why an appropriation should 43 not be expended. 44 (f) The head of each agency shall establish the procedure by which 45 charges and liabilities may be incurred on behalf of the agency. Such 46 procedures shall ensure that no officer or employee, on behalf of or in 47 the name of the agency, shall incur a liability or an expense for any 48 purpose in excess of the amount appropriated or otherwise authorized 49 therefor, and no charge, claim or liability shall exist or arise against 50 the city for any sum in excess of the amount appropriated or otherwise 51 authorized for the particular purpose. 52 § 6-11. Budget modification. 53 (a) Subject to the quarterly spending allotments and aggregate posi- 54 tion and salary limits established pursuant to applicable provisions of 55 this charter, of the state civil service law and of other law, changes 56 in schedules, within units of appropriation, may be made by the head ofS. 8474 25 1 each agency. Any such changes shall be reported to the mayor and the 2 comptroller not more than ten days after the effective date thereof, and 3 shall be made available for public review upon adequate notice. 4 (b) The mayor during any fiscal year may transfer part or all of any 5 unit of appropriation to another unit of appropriation, except that when 6 any such transfer: 7 1. shall be from one agency to another; or 8 2. shall result in any unit of appropriation having been increased or 9 decreased by more than five per centum or fifty thousand dollars, which- 10 ever is greater, from the budget as adopted for such unit of appropri- 11 ation, the mayor shall notify the council of the proposed action. Within 12 thirty days after the first stated meeting of the council following the 13 receipt of such notice, the council may disapprove the proposed action. 14 Written notice of any transfer pursuant to this subdivision shall be 15 given to the comptroller and shall be published as soon as possible 16 after such transfer. 17 (c) The provisions of this section shall not be deemed to authorize 18 any transfer from appropriations required by law. 19 (d) The council may during any fiscal year transfer part or all of any 20 unit of appropriation within the council appropriation to any other 21 council unit of appropriation for any of its programs or projects or for 22 any other purpose, solely by adoption of a council resolution. Each such 23 transfer shall be published and written notice thereof shall be given to 24 the mayor and to the comptroller not less than ten days before the 25 effective date thereof. 26 (e) The procedures and required approvals pursuant to the amendment, 27 adoption of the budget, veto of the mayor and appropriation, certif- 28 ication and publication of the budget, without regard to the dates spec- 29 ified therein, shall be followed in the case of: 30 1. any proposed amendment to the budget respecting the creation of new 31 units of appropriation, 32 2. the appropriation of new revenues from any source except for reven- 33 ues from federal, state or private sources in regard to the use of which 34 the city has no discretion provided, however, that the mayor shall give 35 notice to the council of the receipt and proposed utilization of any 36 such revenues, or 37 3. the proposed use by the city of previously unappropriated funds 38 received from any source. Any request by the mayor respecting an amend- 39 ment to the budget that involves an increase in the budget shall be 40 accompanied by a statement of the source of current revenues or other 41 identifiable and currently available funds required for the payment of 42 such additional amounts. 43 § 6-12. Quarterly account of council budget. 44 The council shall be required to publish quarterly accounting of its 45 actual and planned expenditures, in sufficient detail to indicate the 46 positions and their purposes which have been funded, as well as the 47 activities and categories of materials and supplies purchased. 48 § 6-13. General fund. 49 All revenues of the city, of every administration, department, board, 50 office and commission thereof, and of every other division of government 51 within the city, from whatsoever source except taxes on real estate, not 52 required by law to be paid into any other fund or account shall be paid 53 into a fund to be termed the "general fund." 54 § 6-14. Expenditure reports. 55 Any public or private agency, authority, corporation, board or commis- 56 sion which receives city funds and is not otherwise subject to theS. 8474 26 1 requirements of section 6-10 of this chapter shall submit quarterly 2 reports of the expenditure of such funds to the mayor in such form and 3 detail as the mayor may prescribe. 4 § 6-15. Self-dealing among members of the governing boards of charita- 5 ble institutions. 6 (a) Any charitable institution which receives any payment from the 7 city of Staten Island charitable institutions budget shall pass and 8 implement by-laws which will: 9 1. require disclosure to the agency responsible for the administration 10 of charitable institutions budget and approval by such agency of the 11 material terms of any contract or transaction, direct or indirect, 12 between an institution and any member of its governing board, any part- 13 nership of which he or she is a member or any corporation in which he or 14 she holds ten per centum or more of the outstanding common stock; 15 2. preclude any member of the governing board of any institution from 16 sharing, participating or benefiting, directly or indirectly, in the 17 proceeds from any contract or transaction entered into between the 18 institution and any third party unless such participation or benefit has 19 been approved in advance by the agency and the governing board of the 20 institution has approved the transaction by a two-thirds majority 21 excluding the vote of member to be benefitted; 22 3. require each member of its governing board to submit to the agency 23 each year a disclosure statement including such member's name, home 24 address, principal occupation and business interests from which such 25 member or such member's spouse received income equal to or greater than 26 ten percent of their aggregate gross income during the previous year. 27 (b) At the discretion of the agency, any payment or any portion of any 28 payment may be withheld from any institution which has failed to pass 29 and implement such by-laws. 30 § 6-16. Definitions of capital projects and budget terms. 31 As used in this charter: 32 (a) The term "capital project" shall mean: 33 1. a project which provides for the construction, reconstruction, 34 acquisition or installation of a physical public betterment or improve- 35 ment which would be classified as a capital asset under generally 36 accepted accounting principles for municipalities or any preliminary 37 studies and surveys relative thereto or any underwriting or other costs 38 incurred in connection with the financing thereof; 39 2. the acquisition of property of a permanent nature including wharf 40 property; 41 3. the acquisition of any furnishings, machinery, apparatus or equip- 42 ment for any public betterment or improvement when such betterment or 43 improvement is first constructed or acquired; 44 4. any public betterment involving either a physical improvement or 45 the acquisition of real property for a physical improvement consisting 46 in, including or affecting: 47 (i) streets and parks; 48 (ii) bridges and tunnels; 49 (iii) receiving basins, inlets and sewers, including intercepting 50 sewers, plants or structures for the treatment, disposal or filtration 51 of sewage, including grit chambers, sewer tunnels and all necessary 52 accessories thereof; 53 (iv) the fencing of vacant lots and the filling of sunken lots; 54 (v) any other project allowed to be financed by the local finance law, 55 with the approval of the mayor and the comptroller; or 56 (vi) any combination of the above.S. 8474 27 1 (b) The term "pending" shall mean not yet completed. 2 (c) The term "standards" for each category of capital projects to 3 which they apply shall include: maximum gross and net areas allowed; 4 types of programs which may be operated in the facility; performance 5 requirements for environmental systems; allowable materials and 6 finishes; maximum areas allowed for different functions and activities; 7 approximate cost limits per square foot of construction; and such other 8 items designated by the mayor or by resolution of the council. 9 (d) The term "scope of project" or "proposed scope of project" shall 10 mean a description of a capital project included in the capital budget 11 that contains specific guidelines for the design and implementation of 12 such project consistent with the standards for the appropriate category 13 of capital projects and includes each of the following items of informa- 14 tion which are relevant to the capital project involved: 15 1. purposes and public to be served; 16 2. programs to be conducted in the facility; 17 3. gross and net amounts of space and bulk for any building or struc- 18 ture and for areas for different functions and activities; 19 4. identification of required architectural, engineering or other 20 consultants and estimated fees for such consultants; 21 5. estimated completion dates for scope, design and construction; 22 6. total estimated project costs, including costs for site acquisi- 23 tion, preparation and tenant relocation, design, construction and equip- 24 ment; 25 7. estimated expenditures for the project for each fiscal year until 26 its completion; 27 8. estimated annual costs to operate programs within the facility when 28 fully staffed and to maintain the facility; and 29 9. such other information as shall be required by the mayor or by 30 resolution of the council. 31 (e) The term "cost" shall include the contract liabilities and expend- 32 iture incurred for work in carrying out the physical improvement and 33 interest thereon, and the compensation to be made to the owner of any 34 real property acquired for the improvement as determined by a court or 35 by agreement, and interest thereon. 36 (f) The term "expenses" shall mean any expenses incurred in relation 37 to an assessable improvement exclusive of cost and of damages assessed 38 by the board of assessors. 39 (g) The term "street," as used in this chapter, shall include street, 40 avenue, road, alley, lane, highway, boulevard, concourse, parkway, 41 driveway, culvert, sidewalk, crosswalk, boardwalk, and viaduct, and 42 every class of public road, square and place, except marginal streets. 43 (h) The term "real property" shall include all lands and improvements, 44 lands under water, waterfront property, the water of any lake, pond or 45 stream, all easements and hereditament, corporeal or incorporeal, and 46 every estate, interest and right, legal or equitable, in lands or water, 47 and right, interest, privilege, easement and franchise relating to the 48 same, including terms for years and liens by way of judgment, mortgage 49 or otherwise. 50 (i) The terms "maintenance" or "maintain" shall denote those activ- 51 ities necessary to keep the relevant portion of the capital plant in 52 good repair so as to preserve its structural integrity and to prevent 53 its deterioration. 54 (j) The term "major portion of the capital plant" shall mean: 55 1. any capital assetS. 8474 28 1 (i) which is a capital facility or system comprising a component of 2 the public domain or infrastructure general fixed assets of the city or 3 a building comprising a component of the general fixed assets of the 4 city; and 5 (ii) which, as of the effective date of this charter, or, as a result 6 of any reconstruction or expansion after such date, has a replacement 7 cost of at least ten million dollars and a useful life of at least ten 8 years, or if purchased or constructed after such date has an original 9 cost of at least ten million dollars and an original useful life of at 10 least ten years; and 11 2. any other capital asset of the city designated by the mayor for the 12 purposes of this section; provided, however, that it shall not include 13 any asset which is leased to or otherwise under the cognizance and 14 control of a public benefit corporation or which is otherwise covered, 15 pursuant to state law, by requirements which are substantially similar 16 to the requirements of this section. 17 § 6-17. Format of departmental estimates for capital projects, prelim- 18 inary capital budget and executive capital budget. 19 The departmental estimates for capital projects and the executive 20 capital budget shall consist of a detailed estimate of all capital 21 projects pending or which the agency head, for departmental estimates, 22 or the mayor, for the executive budget, believes should be undertaken 23 within the ensuing fiscal year and the three succeeding fiscal years. 24 Each agency head, and the mayor, for the executive budgets, shall submit 25 a written response to each of the capital budget priorities included in 26 the council's recommendation of budget priorities for local and neigh- 27 borhood needs submitted in accordance with the section on preliminary 28 budget hearings of this chapter. Such responses shall include the 29 response of the agency head and the mayor, as appropriate, regarding the 30 disposition of each such priority and meaningful explanations of any 31 disapprovals contained in such estimates or budget. 32 § 6-18. Preliminary capital budget. 33 The preliminary capital budget statements shall consist of: 34 (a) a financial plan covering estimates of capital expenditures for 35 the four ensuing fiscal years; 36 (b) departmental estimates for capital projects as provided in section 37 6-19 of this chapter together with the cash flow requirements and 38 proposed sources of funding for each project included in such estimates; 39 (c) a capital program status report which sets forth the appropri- 40 ations for each project included in the capital budget for the current 41 fiscal year together with the expenditures to date; and 42 (d) a summary description of the purpose of each capital project and 43 the needs it will fulfill, the schedule for beginning and constructing 44 the project, its period of probable usefulness and an appropriate main- 45 tenance schedule. 46 § 6-19. Executive capital budget. 47 (a) The executive capital budget shall set forth separately each capi- 48 tal project, and shall include: 49 1. a brief description and the location of each project; the total 50 estimated cost of the project; the appropriations which have been previ- 51 ously adopted for this project; the amount of appropriations recommended 52 to be adopted for the ensuing fiscal year the aggregate amount of which 53 shall not exceed the amount in the mayor's certificate; the amount of 54 appropriations required thereafter to complete the project; the sources 55 of funds for the project including state, federal, private and other 56 funds; the period of probable usefulness; the estimated additional annu-S. 8474 29 1 al maintenance and operation costs; and any terms and conditions of the 2 project; the estimated dates of completion of final scope, final design 3 and final construction; and 4 2. a listing of all pending projects; and any recommendations that any 5 pending projects be modified, rescinded or postponed accompanied by a 6 statement of the budgetary impact of any such action. 7 (b) The executive capital program shall set forth for both program 8 categories and individual projects: 9 1. a statement for each of the three succeeding fiscal years of the 10 total dollar amounts necessary to complete projects initiated in prior 11 years and projects proposed in the executive budget the amounts neces- 12 sary for projects proposed to be initiated in future years and the 13 amounts necessary for amendments and contingencies; and 14 2. a statement of the likely impact on the expense budget of staffing, 15 maintaining and operating the capital projects included in or contem- 16 plated by the capital program. 17 § 6-20. Amendment. 18 (a) Upon receipt of a recommendation in writing from the mayor in 19 manner specified herein, the council may amend the capital budget or 20 capital program in the same manner as the adoption of the capital budget 21 and capital program including the right to approve the proposed amend- 22 ment as submitted or to increase or decrease the amounts of funds 23 proposed to be appropriated thereby, but only if funds are available 24 within the capital budget and the applicable program category of the 25 capital program, provided, however that the mayor may only recommend 26 such an amendment relating to an appropriation included in the capital 27 budget pursuant to this charter. 28 (b) Upon the adoption of any such amendment by the council, it shall 29 be certified by the mayor, the speaker of the council and the city clerk 30 and the capital budget shall be amended accordingly. 31 (c) Not later than five days after such certification such amendment 32 shall be filed in the office of the comptroller and shall be published 33 forthwith. 34 § 6-21. Restrictions on capital projects. 35 (a) No obligations of the city shall be issued or authorized for or on 36 account of any capital project not included in a capital budget, or for 37 which funds have not been reserved in an appropriate program category of 38 the capital program for any year of such program in which it is project- 39 ed that funds will be expended for the completion of the project, or in 40 excess of the maximum amount of obligations which may be issued on 41 account of such project as fixed in such capital budget; and no amount 42 may be expended on account of any capital project in excess of the 43 amount appropriated for such purposes in a capital budget, except that 44 the amount appropriated for such purposes may be increased by the mayor 45 by not more than fifteen per centum thereof in order to meet any costs 46 required to advance such project. Notice of any such increase shall be 47 provided to the council together with a statement of identifiable funds 48 available for payment of the increase. 49 (b) Funds included in the capital budget for a capital project that 50 are not obligated or committed during the fiscal year in which appropri- 51 ated shall not be obligated or committed in the subsequent fiscal year 52 unless reappropriated in a subsequent capital budget or an amendment 53 thereto. A capital project included in a capital budget that is not 54 initiated by the expenditure of funds within two years after its inclu- 55 sion in the budget shall be eliminated from the budget.S. 8474 30 1 (c) The city may issue capital debt only to finance capital projects 2 as defined in this charter. The capital budget may not include expense 3 items that are properly includable only in the expense budget, as deter- 4 mined in accordance with the accounting principles set forth in the 5 state comptroller's uniform system of accounts for municipalities, as 6 the same may be modified by the state comptroller, in consultation with 7 the city comptroller, for application to the city. 8 (d) No capital project shall be included in the proposed executive 9 capital budget or otherwise adopted as part of the capital budget or as 10 an amendment thereto unless sufficient funds are available within the 11 appropriate general program category of the capital program for any year 12 of such program in which it is projected that additional appropriations 13 will be necessary for the completion of the project. 14 § 6-22. Site selection. 15 (a) The selection of sites for capital projects shall be pursuant to 16 local law. 17 (b) To the maximum extent feasible, final approval of a site for a 18 capital project shall occur prior to or simultaneously with the approval 19 of the scope of the project pursuant to this chapter. 20 § 6-23. Project initiation; commitment plan. 21 (a) The inclusion of a capital project in the capital budget as 22 adopted or amended shall constitute a direction and order to the agency 23 to proceed with the preparation of a scope of project pursuant to this 24 chapter unless sufficient planning funds for such purpose have not been 25 appropriated in the capital budget. The head of the agency shall notify 26 the comptroller of the amount of appropriated planning funds to be 27 encumbered for such purpose. 28 (b) The approval of a scope of project for a capital project pursuant 29 to this chapter, including the amount of obligations necessary to 30 finance the design and construction of the project, shall constitute a 31 direction and order to the agency to design the project, unless suffi- 32 cient funds for such purpose have not been appropriated in the capital 33 budget or are otherwise not available within the appropriate program 34 category of the capital program. Such approval shall constitute notifi- 35 cation to the comptroller of the comptroller's authorization to expend 36 appropriated design funds. 37 (c) The approval of the final design for a capital project pursuant to 38 this chapter shall constitute a direction and order to the agency 39 responsible for construction to prepare bid and award documents and to 40 proceed to bid, unless sufficient funds for such purpose have not been 41 appropriated in the capital budget or are otherwise not available within 42 each year of the capital program in which it is projected that funds 43 will be expended for the completion of the project. Such approval shall 44 constitute notification to the comptroller of the comptroller's authori- 45 zation to expend appropriated construction funds. 46 (d) The mayor shall require each agency to prepare and submit periodic 47 reports, in regard to the progress of its capital projects, including 48 schedules and clear explanations of any delays for particular projects 49 and summary information on each agency's record on such matters. Such 50 reports shall be published at least three times each year: within ninety 51 days of the adoption of the capital budget; with the preliminary capital 52 budget; and with the executive capital budget, copies of such reports 53 shall be transmitted by the mayor to the council. Such reports shall 54 include, for each project, the dates set in the adopted capital budget 55 for the completion of scope, design, and construction and any changes in 56 such dates.S. 8474 31 1 1. The report issued with the executive budget shall include, for each 2 new capital project being proposed in the executive budget, a 3 description of the project including, to the extent practicable, the 4 information required to be included in a scope of project. 5 2. The report issued following the adoption of the budget shall 6 include, for each capital project added to the budget, a description of 7 the project including, to the extent practicable, the information 8 required to be included in a scope of project. 9 3. The report issued following the adoption of the budget shall 10 include, for each capital project for which a substantial change was 11 made, a revised description of the project including, to the extent 12 practicable, the information required to be included in a scope of 13 project. 14 (e) Any capital project which results in the acquisition or 15 construction of a capital asset which will be subject to the require- 16 ments of this charter shall contain a provision requiring a comprehen- 17 sive manual setting forth the useful life of the asset and explaining 18 the activities necessary to maintain the asset throughout such useful 19 life. 20 (f) The mayor may issue directives and adopt rules and regulations in 21 regard to the execution of capital projects, consistent with the 22 requirements of subdivisions (a), (b), (c) and (d) of this section, 23 which shall be binding upon all agencies. 24 § 6-24. Improvements payable other than by city. 25 Any owner of real property or any other person interested may apply to 26 the council to authorize an improvement referred to in paragraph one of 27 subdivision (a) of section 6-16 of this chapter, not included in the 28 capital budget. The council may authorize such improvement to be made by 29 the city or by such owner or other person interested upon compliance 30 with the following conditions: 31 (a) such owner or group or other persons interested shall enter into 32 an agreement with the city, whereby they will either authorize the city, 33 or themselves agree, to perform such work in accordance with such plans 34 and specifications approved by the agencies having jurisdiction there- 35 over and under their supervision; 36 (b) all of such work shall be done for the account of or at the sole 37 cost and expense of the person or persons applying for permission to do 38 the same, who shall furnish to the city such security and in such amount 39 as may be required to secure the payment of such cost and expense or the 40 proper performance of the said work in the time and in the manner agreed 41 upon, and shall further secure the city, in the latter case, against 42 latent defects in such work for a period of two years; 43 (c) such improvement shall be approved by the city planning department 44 and reviewed pursuant to local law and charter provisions; and 45 (d) any agreement providing for the performance of such work and the 46 furnishing of such security, shall be first approved by the council 47 before the same shall become effective. 48 § 6-25. Standards for capital projects. 49 The mayor shall prepare general standards and cost limits for catego- 50 ries of capital projects and standards for the preparation of the scope 51 of project for capital projects of various types. Such standards and 52 limits shall be submitted by the mayor to the council for review. The 53 proposed standards shall become effective thirty days after they have 54 been filed with the council unless within that time the council modifies 55 or disapproves them or part of them, after conducting a public hearing. 56 Any modification by the council shall be subject to disapproval by theS. 8474 32 1 mayor in accordance with provisions of this charter and any such disap- 2 proval shall be subject to override by the council in accordance with 3 this charter. 4 § 6-26. Scope of project. 5 (a) Each agency, with respect to a capital project under its jurisdic- 6 tion included in a capital budget, shall prepare a proposed scope of 7 project within appropriated planning funds. The proposed scope of 8 project, or, in the case of a delay, an explanation for such delay along 9 with a revised schedule, shall be submitted to the mayor and the coun- 10 cil, by the date specified in the adopted capital budget in which the 11 capital project is included. Such proposed scope shall identify all 12 substantial differences between the guidelines for the capital project 13 as contained in such scope and the description of the capital project 14 contained in the report issued pursuant to this charter at the time such 15 project was proposed in the executive budget or following the budget 16 adoption in which such project was added to the capital budget. 17 (b) Not later than sixty days after receipt of the proposed scope of 18 project from an agency pursuant to subdivision (a) of this section, the 19 mayor shall approve, modify, or disapprove the proposed scope of project 20 and notify the agency and the council. In the case of a scope approved 21 by the mayor with modifications, such notification shall include a copy 22 of the scope as approved. 23 (c) No scope of project shall be approved by the mayor unless: 24 1. it contains the information required by paragraph four of subdivi- 25 sion (d) of section 6-16 of this chapter and it conforms to the applica- 26 ble standards for the type of project adopted pursuant to this chapter, 27 and 28 2. funds are available within the appropriate program category of the 29 capital program that can be reserved for each fiscal year required to 30 complete the project. 31 § 6-27. Design of capital project. 32 (a) The proposed design and final design for a capital project shall 33 be made available for review by the council. The mayor or the mayor's 34 representative shall review the final design to determine its conform- 35 ance with the approved scope of project pursuant to this chapter. 36 (b) Works of art may be provided for each capital project which 37 involves the construction or the substantial reconstruction of a city- 38 owned public building or structure the intended use of which requires 39 that it be accessible to the public generally or to members of the 40 public participating in, requiring or receiving programs, services or 41 benefits provided thereat. For the purposes of this section a police 42 precinct house and a firehouse shall be deemed to be such buildings. 43 Chapter 7 44 Planning Department 45 § 7-01. Planning department. 46 There shall be a department of city planning consisting of a planning 47 director and such subordinate employees as are required to administer 48 the planning program described herein. 49 § 7-02. Planning director. 50 The mayor shall appoint and shall have the power to remove the plan- 51 ning director, who shall have had at least five years of appropriate 52 professional land use experience. The planning director shall be the 53 head of the planning department, and shall be responsible for the proper 54 conduct of the affairs of the department and for the execution of theS. 8474 33 1 planning program prescribed in this charter and in local laws and rules 2 consistent herewith. 3 § 7-03. Powers, duties and functions. 4 (a) The planning director, through the planning department, shall: 5 1. advise and assist the mayor and the council in regard to the phys- 6 ical planning and public improvement aspects of the development of the 7 city and on all matters related to the planning program prescribed in 8 this charter and in local law and rules consistent herewith; 9 2. prepare the general plan and revisions thereof, and development 10 plans at least every four years in the year following the mayoral 11 election and annual reviews thereof, for the improvement and development 12 of the city; 13 3. establish procedures for processing revisions to the general plan 14 and to the four-year and one-year development plans; 15 4. hold public hearings on such plans and revisions thereof and trans- 16 mit them, with findings and recommendations thereon, through the mayor 17 to the council for its consideration and action; 18 5. prepare zoning resolutions, maps and rules and regulations and any 19 revision or amendments thereto in accordance with the general plan; 20 6. prepare local laws or resolutions and rules and regulations govern- 21 ing the subdivision of lands within the city and any revisions or amend- 22 ments thereto; 23 7. administer the zoning and subdivision local laws or resolutions and 24 rules and regulations adopted thereunder and any regulatory laws or 25 resolutions which may be adopted to supplement or replace such resol- 26 utions; 27 8. recommend periodic amendments to zoning resolutions and subdivision 28 laws or regulations, and provide opportunity for taxpayers to recommend 29 periodic amendments to zoning resolutions and subdivision laws or regu- 30 lations; 31 9. hold public hearings on land subdivision and zoning resolutions and 32 amendments thereto, transmit such proposed resolutions, with findings 33 and recommendations thereon, through the mayor to the council for its 34 consideration and action; 35 10. establish procedures for the review of land utilization applica- 36 tions; 37 11. review subdivision plats and zoning petitions; 38 12. approve applications for special permits and variances within the 39 jurisdiction of the department of city planning under the zoning resol- 40 ution; 41 13. collect data on population, housing and other relevant social and 42 economic indicators to serve as a basis for planning recommendations; 43 and may conduct continuous studies and policy analyses on economic 44 development, urban design, capital improvements, environmental impact 45 assessment and such other subjects as the mayor or council may from time 46 to time request; 47 14. be custodian of the city map and thereon record all changes legal- 48 ly authorized; 49 15. administer the program prescribed by law with respect to the 50 establishment and regulation of landmarks, portions of landmarks, land- 51 mark sites, interior landmarks, scenic landmarks and historic districts; 52 16. hold public hearings on a proposed designation of a landmark, 53 landmark site, interior landmark, scenic landmark or historic district, 54 after notice of the proposed designation, notice of the hearing, and an 55 opportunity for comment to the affected property owner or owners;S. 8474 34 1 17. submit to the council a report on the impact of any such desig- 2 nation whether of a district or a landmark to the zoning resolution, 3 projected public improvements, and any plans for the development, 4 growth, improvement or renewal of the area involved, and a recommenda- 5 tion for council action with respect to any such designation; 6 18. review the executive capital program and budget for conformance to 7 the purposes of the general plan and development plans prior to 8 submission of the executive capital program and budget to the council 9 and make a written report of his or her findings to the mayor and coun- 10 cil at the time of submission of such executive capital program and 11 budget; 12 19. prepare, in consultation with the director of the budget, the 13 draft ten-year capital strategy, and hold hearings on such draft, and 14 report his or her findings to the mayor and to the council; 15 20. consult with the appropriate State officials concerned with plan- 16 ning and environmental quality to assure compliance with State guide- 17 lines and oversee implementation of laws that require environmental 18 reviews of actions taken by the city; and 19 21. perform such other functions as are assigned by the mayor or other 20 provisions of law. 21 § 7-04. General plan. 22 The general plan shall set forth the city's broad policies for the 23 long range development of the city. It shall contain statements of the 24 general social, economic, environmental and design objectives to be 25 achieved for the general welfare and prosperity of the people of the 26 city through government action, city, state or federal. The statements 27 shall include, but not be limited to, policy and development objectives 28 to be achieved with respect to the distribution of social benefits, the 29 most desirable uses of land within the city, the overall circulation 30 pattern and the most desirable population densities within the several 31 areas of the city. In conformance with such development objectives and 32 policies the plan shall identify the general location, character, and 33 extent of streets and thoroughfares, parks, recreation facilities, sites 34 for public buildings and structures, city and privately owned utilities, 35 transportation systems and facilities, housing, community facilities, 36 future land use for all classifications and such other elements, 37 features and policies as will provide for the improvement of the city 38 over the next ten years. 39 § 7-05. Development plans. 40 Development plans shall present detailed means for implementing and 41 accomplishing the development objectives and policies of the general 42 plan within the several parts of the city. The mayor shall have a 43 comprehensive four-year development plan which shall recommend a gener- 44 alized land use development pattern to guide the growth of the city over 45 the succeeding four-year period and a one-year development plan that 46 delineates the city's proposed land use development pattern for a 47 succeeding twelve month period and is based upon the development goals 48 and objectives specified in the city's four-year development plan. 49 § 7-06. Adoption of the general plan and development plans. 50 (a) The mayor shall submit annually to the council such plans that 51 will include a general plan, four-year and one-year development plans 52 for all property within the city limits. The council shall adopt the 53 general plan or revisions thereof and development plans or amendments 54 thereto by local law. Any local law or resolution adopting or revising 55 the general plan shall be laid over for at least two weeks after intro- 56 duction. The mayor shall not certify as to the necessity for the immedi-S. 8474 35 1 ate consideration of any general plan, development plans, or revisions 2 or amendments thereto. Public notice shall be provided at least ten days 3 before adoption by the council. Upon adoption, every local law or 4 resolution shall be presented to the mayor, and the mayor may approve or 5 disapprove it pursuant to applicable provisions governing the approval 6 or disapproval of a local law or resolution. If the mayor approves the 7 local law, the mayor shall sign it and return it to the clerk; it shall 8 then be deemed to have been adopted. If the mayor disapproves it, he or 9 she shall return it to the council with his or her objections stated in 10 writing. The council at its next regular meeting may reconsider the same 11 and if the votes of two-thirds of all the council members be cast in 12 favor of repassing such local law, it shall be deemed adopted, notwith- 13 standing the objections of the mayor. 14 (b) The general plan and all development plans shall be kept on file 15 in the department of city planning. 16 (c) The approved general plan and development plans shall be used as a 17 guide for the preparation of the city's capital improvement program and 18 capital budget. 19 (d) The mayor shall maintain an up-to-date zoning map of all proper- 20 ties within the city limits. 21 (e) Following the annual updating and adoption of the city's develop- 22 ment plans, the council shall amend the city's zoning ordinance to 23 conform it to the updated development plans in accordance with proce- 24 dures prescribed by general law. 25 § 7-07. Board of Appeals. 26 (a) There shall be a board of appeals which shall consist of five 27 members to be termed commissioners, three of whom shall be appointed by 28 the mayor and two appointed by the council. Members shall serve a stag- 29 gered term of five years. 30 (b) Commissioners shall be chosen for their independence, integrity 31 and civic commitment and for their professional competence in such areas 32 as planning, architecture, and engineering. The mayor shall designate 33 one of the members to serve as chair and one of the members to serve as 34 vice-chair who shall act as chair in the absence of the chair or in the 35 event that a vacancy exists in the office of chair. 36 (c) Every member of the board shall receive a salary, which shall not 37 be reduced during his or her term of office except in case of a general 38 reduction of salaries and in proportion to reductions of salaries of 39 other officers with similar salaries. A member shall not engage in any 40 other occupation, profession or employment. Members shall attend the 41 hearings and executive sessions of the board, and shall perform such 42 other duties as may be required by the chair. 43 (d) Vacancies shall be filled in the same manner as for an original 44 appointment for the unexpired term of the member whose place has become 45 vacant and with a person having his or her qualifications. 46 (e) Any member may be removed by the mayor on proof of official 47 misconduct, or of negligence in official duties, inability to perform 48 his or her duties; but before removal he or she shall receive a copy of 49 the charges and shall be entitled to a hearing before the mayor and to 50 the assistance of counsel at such hearing. 51 § 7-08. Meetings. 52 Meetings of the board shall be held at the call of the chair and at 53 such other times as the board may determine. The chair, or in his or her 54 absence the acting chair, may administer oaths and compel the attendance 55 of witnesses. All hearings before the board shall be open to the public 56 and shall be before at least three members of the board, and a concur-S. 8474 36 1 ring vote of at least three members shall be necessary to a decision to 2 grant an application or an appeal, to revoke or modify a variance, 3 special permit or other decision of the board, or to make, amend or 4 repeal a rule or regulation. The board shall keep minutes of its 5 proceedings, showing the vote of each member upon every question, or if 6 absent or failing to vote, indicating such fact, and shall also keep 7 records of its examinations and other official action. Such minutes and 8 such records shall be public records. 9 § 7-09. Powers and duties. 10 The board shall have the power: 11 (a) to hear and determine appeals from the actions of the planning 12 director in the administration of the zoning and subdivision resolutions 13 and any rules and regulations adopted pursuant thereto, which appeal 14 shall be sustained only if the board finds that the director's action 15 was based on an erroneous finding of a material fact, or that the direc- 16 tor had acted in an arbitrary or capricious manner or had manifestly 17 abused discretion; 18 (b) to hear and determine appeals from the actions of the planning 19 director on petitions for varying the application of the zoning resol- 20 ution with respect to a specific parcel of land and may grant such a 21 variance upon the ground of unnecessary hardship if the record shows 22 that: 23 1. the applicant would be deprived of the reasonable use of such land 24 or building if it were used only for the purpose allowed in that zone; 25 2. the request of the applicant is due to unique circumstances and not 26 the general conditions in the neighborhood, so that the reasonableness 27 of the neighborhood zoning is not drawn into question; and 28 3. the use sought to be authorized by the variance will not alter the 29 essential character of the locality, provided however that the board 30 shall specify the particular evidence which supports the granting of a 31 variance; 32 (c) to hear and determine appeals from and review any recommendation 33 by the planning director to designate a landmark, landmark site, interi- 34 or landmark, scenic landmark or historic district; 35 (d) to make, amend and repeal rules and regulations for carrying into 36 effect the provisions of the laws, resolutions, rules and regulations in 37 respect to any subject-matter jurisdiction whereof is conferred by law 38 upon the board, and to include in such rules and regulations provisions 39 applying to specific conditions and prescribing means and methods of 40 practice to effectuate such provisions and for carrying into effect the 41 powers of the board; 42 (e) to review, upon motion of any member of the board, any rule, regu- 43 lation, amendment or repeal thereof, and any order, requirement, deci- 44 sion or determination from which an appeal may be taken to the board 45 under the provisions of this chapter or of any law, or of any rule, 46 regulation or decision of the board; but no such review shall prejudice 47 the rights of any person who has in good faith acted thereon before it 48 is reversed or modified; and 49 (f) to revoke or modify, upon due notice and hearing, variances and 50 special permits previously granted under the zoning resolution if the 51 terms and conditions of such grants have been violated. 52 § 7-10. Procedure on appeals. 53 (a) An appeal may be taken by an aggrieved party. 54 (b) Such appeal may be taken within such time as shall be prescribed 55 by the board by general rule, by filing with the officer from whom the 56 appeal is taken and with the board a notice of appeal, specifying theS. 8474 37 1 grounds thereof. The officer from whom the appeal is taken shall forth- 2 with transmit to the board all the papers constituting the record upon 3 which the action appealed from was taken. 4 (c) The board shall fix a reasonable time for the hearing of appeals, 5 and give due notice thereof to the parties, and decide the same within a 6 reasonable time. If the appeal is from an order revoking a permit or 7 approval, the hearing shall be no later than at the third scheduled 8 hearing of the board following the date of filing of the appeal, or five 9 weeks following such date, whichever is sooner, and the decision of the 10 board shall be rendered expeditiously. Upon the hearing any party may 11 appear in person or by agent and/or attorney. 12 (d) Any decision of the board under this section may be reviewed as 13 provided by law. 14 Chapter 8 15 Franchises 16 § 8-01. Franchises. 17 All franchises, revocable consents and concessions shall be awarded in 18 accordance with the following procedures: 19 (a) The council shall have the power to grant, renew or extend any 20 franchise, revocable consent or concession which extends for a period of 21 three or more years, provided, however, that any franchise, revocable 22 consent or concession which extends for a period of ten years or more 23 shall require the approval of two-thirds of all the members; and 24 (b) The mayor shall have the power to enter into an agreement to 25 grant, renew or extend a franchise, revocable consent or concession 26 which extends for a period of less than thirty-six months. 27 Chapter 9 28 Contracting 29 § 9-01. Procurement. 30 Except as otherwise provided in this charter or by statute, all goods, 31 services or construction to be paid for out of the city treasury or out 32 of monies under the control of or assessed or collected by the city 33 shall be procured as prescribed in this chapter. 34 § 9-02. Conditions. 35 The circumstances under which procurement may be used for the 36 provision of technical, consultant or personal services, shall include 37 circumstances where the use of procurement is: 38 (a) cost effective or necessary to obtain special expertise; 39 (b) necessary to provide a service not needed on a long-term basis; 40 (c) necessary to avoid a conflict of interest; or 41 (d) where personnel or expertise is not available in city government. 42 § 9-03. Procedures. 43 All contracts shall be awarded in accordance with the following proce- 44 dures: 45 (a) The mayor as the chief elected executive shall through his or her 46 appointees have the power to enter into contracts on behalf of the city 47 of Staten Island. 48 (b) The comptroller shall, in accordance with provisions of this char- 49 ter and with practices promulgated by state law, certify all contracts, 50 within thirty days of receipt of such contract, provided there is no 51 cause not to certify. If the comptroller determines that a contract 52 cannot be certified, he or she shall so notify the mayor and the common 53 council within thirty days of receipt of such contract. Reasons not to 54 certify shall include but not be limited to debarment ofS. 8474 38 1 vendors/contractors, unreasonable and/or onerous terms and conditions, 2 financial problems or inconsistencies, and any other major cause not 3 advantageous to the city that the comptroller can identify and justify 4 through appropriate documentation. 5 (c) All contracts above ten thousand dollars, shall be let by compet- 6 itive bidding, in compliance with current rules, regulations, guidelines 7 and practices set forth by an appropriate national government procure- 8 ment officers professional association or the conventions set forth in 9 the generally accepted accounting practices or procedures as promulgated 10 by the New York State comptroller's office, as agreed to by the mayor, 11 the comptroller and approved by the common council; except that, when an 12 emergency as defined by local law is declared by the mayor to exist and 13 is certified by the comptroller, expedited rules as promulgated by the 14 mayor or the mayor's designee shall apply. 15 (d) Contracts of ten thousand dollars or less may be let by sole 16 source bid when an agency by rule determines that there is only one 17 source for the required good, service or construction. The agency 18 contract file shall contain a written determination that only one source 19 is available for the required good, service or construction, including 20 the process by which the agency made such determination. The agency 21 shall provide to the comptroller written documentation to support its 22 intention to let a sole source contract. This documentation shall 23 include, but not be limited to, the qualifications of the vendor and the 24 specific requirements of the contract. 25 (e) If, for any contract above ten thousand dollars, there is an 26 alteration, renewal, or change in the terms and conditions or the scope 27 of work which results in an increase or decrease of greater than five 28 per centum of the original contract amount, then those contract changes 29 must be certified by the comptroller. 30 § 9-04. Notification of contract opportunities and awards. 31 Each agency shall publish in the appropriate publication and in news- 32 papers of city, state or national distribution and trade publications, 33 notice of: 34 (a) the solicitation of bids or proposals pursuant to this chapter 35 where the value of a contract for goods, services or construction is 36 estimated to be above ten thousand dollars; 37 (b) the award of a contract for goods, services or construction 38 exceeding ten thousand dollars in value. Each such notice of award shall 39 indicate the name of the contractor, the dollar value of the contract, 40 the procurement method by which the contract was let; 41 (c) the comptroller shall promulgate rules providing for the publica- 42 tion and content of notices of contract actions required by this chap- 43 ter. Such rules shall include but not be limited to provisions regarding 44 the timing and frequency of notices, the required duration of solicita- 45 tion periods, and the form and content of notices. 46 § 9-05. Agency contract files. 47 Each agency shall maintain files containing all information pertaining 48 to the solicitation, award and management of each contract of the agen- 49 cy. The agency contract files shall contain copies of each determi- 50 nation, writing or filing required by this chapter pertaining to a 51 contract including the circumstances under which the procurement was let 52 in accordance with section 9-02 of this chapter, and copies of all costs 53 effectiveness analyses. Agency contract files shall be open to public 54 inspection with adequate protection for information which is confiden- 55 tial. 56 § 9-06. Centralized contract and contractor information.S. 8474 39 1 The mayor shall ensure that copies of all city contracts and other 2 standard information regarding city contracts and contractors are 3 located in a central place which is accessible to the public. Such 4 information shall include: 5 (a) a copy of the contract; 6 (b) information regarding the method by which the contract was let; 7 (c) such standard documents as the contractor is required to submit, 8 which shall be updated regularly; 9 (d) information regarding the contractor's qualifications and perform- 10 ance; 11 (e) any evaluations of the contractor and any contractor responses to 12 such evaluation; 13 (f) any audits of the contract and any contractor responses to such 14 audits; 15 (g) any decisions regarding the suspension or debarment of the 16 contractor; and 17 (h) any analysis and determination of cost effectiveness. 18 The mayor shall ensure adequate public access to the information on 19 contracts and contractors which shall be maintained in a manner to 20 facilitate public review, with due consideration for the need to 21 protect, where appropriate, the confidentiality of any such information. 22 § 9-07. Adverse impact on public employees. 23 In the event that a proposed contract for goods, services or 24 construction may adversely affect public employees, the public employees 25 union, if any, shall be advised no later than three months in advance of 26 the contract being let of the nature, scope, and approximate dates, of 27 the contract, and the reasons therefor. Except that, when an emergency 28 as defined in subdivision (c) of section 9-03 of this chapter is in 29 effect, some or all of the provisions of this section may be omitted or 30 suspended for the period of the emergency, but only for those contracts 31 directly relevant to the management of that emergency or as a result of 32 the emergency. 33 The public employer will provide such union as soon as practicable, 34 with information, in sufficient detail, so that the union may prepare a 35 proposal designed to demonstrate the cost effectiveness of keeping the 36 work in-house. Such information shall include, but not be limited to, 37 applicable solicitation to vendors, winning bids, descriptions of 38 services to be provided by vendors, and the agency's estimated direct 39 operating and administrative costs of contracting out the work. 40 Not less than thirty days prior to the award of the contract, the 41 union shall have the opportunity to make a formal proposal to the public 42 employer demonstrating that it is cost effective or that it is in the 43 best interest of the public employer to continue to perform such work 44 in-house. The public employer shall consider such proposal before making 45 a final determination. 46 Chapter 10 47 Referendum and Amendment 48 § 10-01. Referendum on pending legislation. 49 (a) The people of the city of Staten Island reserve to themselves the 50 right to require the council to vote on proposed laws and amendments to 51 the local laws as hereinafter provided. 52 (b) The people shall have the power to require the council to vote on 53 proposed bills and resolutions by initiative petition. Each initiative 54 petition shall support a bill or resolution which has been introduced inS. 8474 40 1 the council and shall be signed by five per centum of the total votes 2 cast on Staten Island at the previous general election. 3 (c) An initiative petition when signed by the requisite number of 4 voters shall be submitted to the Staten Island board of elections which 5 shall promptly determine whether the petition meets the requirements of 6 subdivision (b) of this section. If the Staten Island board of elections 7 determines those requirements are satisfied it shall certify to the 8 speaker of the council that the bill or resolution supported by the 9 petition is required to be considered in the council with the vote of 10 each member present recorded. 11 (d) No petition shall be certified to the council after May first in 12 any year. A petition which is not certified by the Staten Island board 13 of elections before May first shall be certified to the council on the 14 first day of the next legislative session. 15 (e) The council shall have sixty days from receipt of a certified 16 petition to vote on the bill or resolution which is the subject of the 17 petition. If the council fails to vote on such bill or resolution within 18 sixty days, such bill or resolution shall be deemed to have passed. 19 (f) City funds, facilities or employees may not be used to solicit 20 signatures on an initiative petition or to support or oppose the signing 21 of such a petition provided, however, that elected officials may solicit 22 such signatures or oppose the signing of such a petition. 23 (g) The council shall, by local law, prescribe the form and content 24 of, and the procedures for, initiative petitions consistent with this 25 section. The council may, by local law, provide for the reporting of the 26 identity of any person who expends money to affect any initiative peti- 27 tion and the amount of any money so expended. 28 § 10-02. Charter amendment. 29 (a) Amendments to this charter shall be adopted by referendum only, 30 except for those changes that are syntax and/or spelling changes which 31 may be effected, altered or amended by local law as adopted by the coun- 32 cil and the mayor as provided for in this charter. The council may 33 place an amendment on the ballot by a vote of two-thirds of all the 34 members. 35 (b) Referendum in order to amend the charter shall take place as a 36 ballot issue to be decided by affirmative vote of the majority of the 37 qualified electors of the city voting thereon, it shall take effect as 38 prescribed in such referendum. 39 (c) The referendum shall be placed on the ballot by petition of quali- 40 fied electors of not less than five per centum of the total vote cast in 41 the city of Staten Island at the last gubernatorial general election. 42 The petition shall be filed in the office of the clerk of the city of 43 Staten Island for the submission to the electors of the city at the next 44 general election therein held not less than sixty days after such 45 filing. The proposed amendment shall be set forth in full in such peti- 46 tion which may be made upon separate sheets and the signatures of each 47 shall be authenticated in the manner provided by the New York state 48 election law. If within ten days after the filing of such petition a 49 written objection thereto be filed with the office of the city clerk and 50 the board of elections, the Supreme Court or any justice thereof of the 51 appropriate judicial district shall determine any question arising ther- 52 eunder and make such order as justice may require as prescribed in the 53 state election law. 54 Chapter 11 55 Property of the CityS. 8474 41 1 § 11-01. Inalienable property. 2 The rights of the city in and to its water front, ferries, wharf prop- 3 erty, bridges, land under water, public landings, wharves, docks, 4 streets, avenues, highways, parks, waters, waterways and all other 5 public places are hereby declared to be inalienable; but upon closing or 6 discontinuance of any street, avenue, park or other public place, the 7 property may be sold or otherwise disposed of as may be provided by law, 8 and leases of land under water, wharf property, wharves, docks and piers 9 may be made as may be provided by law. 10 § 11-02. Authority to acquire real property. 11 (a) The city may acquire title in fee to real property or any interest 12 therein whenever required for any public or municipal use or purpose or 13 for the promotion of public utility, comfort, health, enjoyment or 14 adornment. Such title or interest shall be acquired according to law by 15 purchase, gift, devise, lease, condemnation or otherwise, and, subject 16 to the provisions of this charter or other law may sell, lease, mort- 17 gage, hold, manage, and control such property as may now or hereafter be 18 owned by it. 19 (b) The council by local law shall prescribe the procedures for all 20 acquisitions of real and personal property by the city, including proce- 21 dures for determining compensation and for appealing from such determi- 22 nation without prejudice to the appellant. In addition to all other 23 requirements of law, written notice of the application to have compen- 24 sation for real property ascertained in any proceeding brought by the 25 city to acquire title to real property shall be given to the owners of 26 all property affected by the proceeding to such application. Such notice 27 shall state the purpose for which the property is to be acquired and the 28 date when such application will be presented and shall be made public 29 not less than ten days prior to such proceeding. Any owner whose proper- 30 ty has been taken in any such proceeding which has not been used for the 31 purpose stated in the proceeding for acquisition shall have the right of 32 first refusal to repurchase such property from the city after the expi- 33 ration of a five-year period from the date of the entry of the final 34 decree in the proceeding for the price paid plus simple interest. 35 § 11-03. Disposal of property of the city. 36 No real property of the city may be sold, leased, exchanged or other- 37 wise disposed of except as specifically provided by law. 38 Chapter 12 39 Personnel Management 40 § 12-01. Declaration of intent. 41 (a) The personnel policies and practices of the city government in 42 furtherance of this charter, the state civil service law and rules and 43 other applicable law shall: 44 1. preserve and promote merit and fitness in city employment; 45 2. ensure that appointments and promotions in city service are made, 46 and that wages are set, without regard to political affiliation, and 47 without unlawful discrimination based on sex, race, color, religion, 48 religious observance, national origin, disability, age, marital status, 49 citizenship status or sexual orientation; and promote and support the 50 efficient and effective delivery of services to the public. 51 (b) Consistent with subdivision (a) of this section, the heads of city 52 agencies shall have such powers, duties and responsibilities for person- 53 nel management as they shall require to administer their agencies effec- 54 tively and to supervise, evaluate, motivate, discipline, provide incen- 55 tives for and improve the skills of employees of the city.S. 8474 42 1 § 12-02. Department; personnel director. 2 There shall be a department of personnel, the head of which shall be 3 the personnel director. The personnel director shall have all the powers 4 and duties of a municipal civil service commission provided in the state 5 civil service law or in any other statute or local law other than such 6 powers and duties as are by this chapter assigned to the mayor, the city 7 civil service commission or the heads of city agencies. 8 § 12-03. City civil service commission. 9 (a) There shall be a city civil service commission, consisting of 10 three members, not more than two of whom shall be members of the same 11 political party. Members shall be appointed by the mayor, from a list of 12 nominations provided by the screening committee established pursuant to 13 subdivision (b) of this section, for overlapping terms of six years. Of 14 the members first appointed, one shall serve for two years and one for 15 four years and one for six years. The members shall be removable in the 16 manner provided for members of a municipal civil service commission in 17 the state civil service law. A vacancy in such commission shall be 18 filled in the same manner as regular appointments for the balance of the 19 unexpired term. The mayor shall designate a member as chair and vice 20 chair, respectively, for one-year terms. Within appropriations for such 21 purposes, the members of the commission shall be reimbursed on a per 22 diem basis for attendance at regularly scheduled meetings and hearings 23 of the commission. 24 (b) There shall be a screening committee which shall submit to the 25 mayor a list of nominees, which shall include persons with knowledge or 26 experience of the state civil service system, or personnel management, 27 or compensation practices, from which the mayor shall make appointments 28 to the city civil service commission. Such screening committee shall 29 consist of six members, of whom three shall be appointed by the mayor 30 and three shall be appointed by the municipal labor committee. The 31 screening committee shall submit the list of nominees upon the occur- 32 rence of any vacancy on the commission or at least three months prior to 33 the expiration of the term of any incumbent member. 34 (c) The commission shall appoint a counsel, who shall not be employed 35 or retained by any other city agency, and may appoint a secretary and 36 such other subordinates as may be necessary within the appropriation 37 therefor. 38 (d) The civil service commission shall have the power to hear and 39 determine appeals by any person aggrieved by any action or determination 40 of the personnel director made pursuant to section 12-04 of this chapter 41 and may order such relief as it deems appropriate or necessary in 42 accordance with this charter or the state civil service law. Any such 43 appeal shall be taken by application in writing to the commission within 44 thirty days after the action or determination appealed from. The commis- 45 sion shall also have the powers and responsibilities of a municipal 46 civil service commission under section seventy-six of the state civil 47 service law. In accordance with the requirements of this charter, the 48 commission shall promulgate rules of procedure, including rules estab- 49 lishing time schedules, for the hearings and determinations authorized 50 by this section. 51 (e) The commission shall have the power and duty to conduct reviews, 52 studies, or analyses of the administration of personnel in the city, 53 including the classification of titles by the personnel director. 54 (f) The commission shall prepare and transmit directly to the mayor 55 departmental estimates as required by this charter. The mayor shall 56 include such proposed appropriations for the commission as a separateS. 8474 43 1 agency in the preliminary and executive budgets as are sufficient for 2 the commission to fulfill the obligations assigned to it by this charter 3 or other law. 4 § 12-04. Personnel director; powers and duties. 5 (a) The personnel director shall have the following powers and duties 6 in addition to the powers and duties of a municipal civil service 7 commission provided in the state civil service law, and those vested in 8 the personnel director as the head of the department, except where any 9 specific power or duty is assigned to the mayor, heads of city agencies 10 or the civil service commission pursuant to this chapter: 11 1. to recruit personnel; 12 2. to make studies in regard to the grading and classifying of posi- 13 tions in the civil service, establish criteria and guidelines for allo- 14 cating positions to an existing class of positions, and grade and estab- 15 lish classes of positions; 16 3. to schedule and conduct examinations for positions in the civil 17 service; 18 4. to establish, promulgate and certify eligible lists in the manner 19 provided in the state civil service law, and the rules of the personnel 20 director; 21 5. to determine the appropriateness of eligible lists for the filling 22 of vacancies in the manner provided in the state civil service law and 23 the rules of the personnel director; 24 6. to investigate applicants for positions in the civil service; to 25 review their qualifications, and to revoke or rescind any certification 26 or appointment by reason of the disqualification of the applicant or 27 appointee under the provisions of the state civil service law, and the 28 rules of the personnel director or any other law; 29 7. to review any appointment of persons as provisional employees with- 30 in sixty days after appointment to assure compliance with this charter, 31 the state civil service law, and any rule or regulation issued pursuant 32 to this charter or state civil service law; 33 8. to certify payrolls in accordance with the provisions of the state 34 civil service law and the rules of the personnel director; 35 9. to keep records regarding candidates for appointment to the civil 36 service and officers and employees in the civil service; 37 10. to develop and recommend to the mayor standard rules governing 38 working conditions, vacations and leaves of absence; and career, salary 39 and wage plans providing for the creation, abolition and modification of 40 positions and grades and fixing salaries of persons paid from the city 41 treasury, subject to the provisions of this charter, the state civil 42 service law, other applicable statutes and collective bargaining agree- 43 ments; 44 11. to administer the city-wide incentive, training and development, 45 and other such personnel programs of the city; 46 12. to establish and enforce uniform procedures and standards to be 47 utilized by city agencies in establishing measures, programs and plans 48 to ensure a fair and effective affirmative employment plan for equal 49 employment opportunity for minority group members and women who are 50 employed by, or who seek employment with, city agencies. Such procedures 51 shall include a time schedule for the development of such plans which 52 provides for the preparation by each agency of a draft plan, the review 53 of such draft plan by the department of personnel, the equal employment 54 practices commission, and such other agency as the mayor requires, and 55 the consideration by the agency of any comments received on such draftS. 8474 44 1 plans prior to the adoption of a final plan as required by section 12-05 2 of this chapter; 3 13. to establish a uniform format to be utilized by all city agencies 4 in the preparation of the quarterly reports required by section 12-05 of 5 this chapter. Such format shall provide for the presentation of statis- 6 tical information regarding total employment, new hiring and promotions 7 in a manner which facilitates understanding of an agency's efforts to 8 provide fair and effective equal opportunity employment for minority 9 group members, women and members of other groups who are employed by, or 10 who seek employment with, city agencies; 11 14. to develop, in conjunction with other city agencies, a clearing- 12 house for information on employment and educational programs and 13 services for minority group members and women; and 14 15. to provide assistance to minority group members and women employed 15 by, or interested in being employed by, city agencies to ensure that 16 such minority group members and women benefit, to the maximum extent 17 possible, from city employment and educational assistance programs. 18 (b) The personnel director shall have the following powers and duties 19 with respect to the personnel management functions assigned to city 20 agencies pursuant to subdivisions (a), (b), (c), and (d) of section 21 12-05 of this chapter: 22 1. to aid in the development of effective and efficient personnel 23 programs and professional personnel staffs in the agencies of the city; 24 and to convene the personnel officers of the agencies from time to time 25 as a personnel council to consider personnel matters of inter-agency or 26 of city-wide concern; 27 2. to approve agency plans and programs pursuant to section 12-05 of 28 this chapter; 29 3. to establish and enforce standards, guidelines and criteria for the 30 personnel management functions assigned to the agencies and to audit 31 performance by the agencies of such personnel functions; 32 4. to reverse or rescind any agency personnel action or decision 33 pursuant to an assignment or delegation of authority in this chapter, 34 upon a finding of abuse after notification to the agency and an opportu- 35 nity to be heard; 36 5. to hear and determine appeals by any person aggrieved by any action 37 or determination of the head of an agency made pursuant to section 12-05 38 of this chapter, subject to review by the civil service commission as 39 provided in subdivision (e) of section 12-03 of this chapter; 40 6. to delegate to the head of an agency personnel management functions 41 assigned to the personnel director where such delegation is not other- 42 wise prohibited by the state civil service law, and pursuant to terms 43 and conditions prescribed by the director; 44 7. to administer personnel programs of a city-wide nature or common to 45 two or more departments where administration by separate agencies would 46 be impracticable and uneconomical; 47 8. to annually publish and submit to the mayor, council and the 48 commission on equal employment practices a report on the activities of 49 the department of personnel and city agencies to provide fair and effec- 50 tive affirmative employment practices to ensure equal employment oppor- 51 tunity for minority group members and women who are employed by, or who 52 seek employment with, city agencies. Such report shall include, but not 53 be limited to, an analysis of the city government workforce and appli- 54 cants for such employment by agency, title and classification; a 55 description of each agency's employment practices, policies and 56 programs; an analysis of the effectiveness of the city's efforts toS. 8474 45 1 provide fair and effective affirmative employment practices to ensure 2 equal employment opportunity for minority group members and women who 3 are employed by, or who seek employment with, city agencies; and such 4 legislative, programmatic and budgetary recommendations for the develop- 5 ment, implementation or improvement of such activities as the personnel 6 director deems appropriate. 7 (c) The personnel director shall promulgate rules and regulations 8 relating to the personnel policies, programs and activities of city 9 government in furtherance of and consistent with the state civil service 10 law and this chapter. The personnel director shall transmit to the state 11 civil service commission each proposed rule which must be submitted to 12 such commission, including any which establishes or reclassifies titles 13 in the non-competitive or exempt class, within sixty days after the 14 public hearing has been held on such rule. 15 (d) The personnel director shall, at the time requested by the city 16 civil service commission or the equal employment practices commission, 17 provide each commission with all the information which such commission 18 deems necessary to fulfill the duties assigned to it by the charter. The 19 provisions of this subdivision shall not apply to any information which 20 is required by law to be kept confidential or which is protected by the 21 privileges for attorney-client communications, attorney work products, 22 or material prepared for litigation. 23 (e) The personnel director shall submit a quarterly report to the 24 mayor, the council, the civil service commission and the equal employ- 25 ment practices commission. Such report shall specify, by agency and by 26 title, including temporary titles: 27 1. the number of provisional employees at the end of the second month 28 of the quarter; 29 2. the length of time such provisional employees have served in their 30 positions; and 31 3. the actions taken by the city to reduce the number of such provi- 32 sional employees and the length of their service in such positions. Such 33 reports shall be submitted by the last day of March, June, September, 34 and December of each year. 35 § 12-05. Agency heads; powers and duties. 36 (a) Subject to the state civil service law and applicable provisions 37 of this charter, heads of city agencies shall have the following powers 38 and duties essential for the management of their agencies in addition to 39 powers and duties vested in them pursuant to this charter or other 40 applicable law: 41 1. to recruit personnel; 42 2. to participate with the personnel department in job analyses for 43 the classification of positions; 44 3. to allocate individual positions to existing civil service titles; 45 4. to allocate individual managerial or executive positions to manage- 46 rial assignment levels; 47 5. to assist the personnel department in the determination of minimum 48 qualifications for classes of positions and to review and evaluate qual- 49 ifications of candidates for positions in the civil service; 50 6. to assist the personnel director in the planning and preparation of 51 open competitive examinations; 52 7. to schedule and conduct tests other than written tests for 53 promotion to competitive class positions; 54 8. to determine whether to hold an open competitive or promotion exam- 55 ination to fill positions in the civil service subject to disapproval of 56 the personnel director within thirty days;S. 8474 46 1 9. to plan and administer employee incentive and recognition programs; 2 10. to fill vacant positions within quarterly spending allotments and 3 personnel controls pursuant to this charter; 4 11. to administer and certify eligible lists for classes of positions 5 unique to the agency; 6 12. to make appointments to competitive positions from eligible lists 7 pursuant to subdivision one of section sixty-one of the state civil 8 service law, which authority shall not be abridged or modified by local 9 law or in any other manner; 10 13. to establish and administer performance evaluation programs to be 11 used during the probationary period and for promotions, assignments, 12 incentives and training; 13 14. to conduct training and development programs to improve the 14 skills, performance and career opportunities of employees; 15 15. to ensure and promote equal opportunity for all persons in 16 appointment, payment of wages, development and advancement; 17 16. to administer employee safety programs; 18 17. to maintain personnel records; 19 18. to perform such other personnel management functions as are deleg- 20 ated by the personnel director pursuant to this chapter or that are not 21 otherwise assigned by this chapter; 22 19. to establish measures and programs to ensure a fair and effective 23 affirmative employment plan to provide equal employment opportunity for 24 minority group members and women who are employed by, or who seek 25 employment with, the agency and, in accordance with the uniform proce- 26 dures and standards established by the department of personnel for this 27 purpose, to adopt and implement an annual plan to accomplish this objec- 28 tive. Copies of such plans shall be filed with the mayor, council, 29 department of personnel, equal employment practices commission, and city 30 civil service commission and shall be made available for reasonable 31 public inspection; and 32 20. to provide assistance to minority group members and women inter- 33 ested in being employed by city agencies to ensure that such minority 34 group members and women benefit, to the maximum extent possible, from 35 city employment and educational assistance programs. 36 (b) Within one year from the effective date of this charter, the head 37 of each agency shall prepare and submit to the mayor and the personnel 38 director a plan and schedule for the discharge of the powers and duties 39 assigned in this section. No such plan shall take effect until approved 40 by the mayor. 41 (c) The mayor may modify, suspend, or withdraw for cause any power or 42 duty assigned or delegated to the head of an agency pursuant to this 43 section. 44 (d) Notification prior to each action or decision of an agency pursu- 45 ant to this chapter which changes the status of an individual employee, 46 a position, or a class of positions shall be provided to the personnel 47 director. The head of each agency shall certify on each payroll that all 48 personnel actions and transactions of the agency conform with the 49 provisions of the state civil service law and this chapter, the rules of 50 the personnel director and other applicable law. 51 (e) Before any new position in the city service shall be created, the 52 agency head shall furnish the commissioner of finance with a certificate 53 stating the title of the class of positions to which the position is to 54 be allocated. If the position is to be allocated to a new class of posi- 55 tions, the agency head shall request of the personnel director, and the 56 personnel director shall furnish to the agency head and the commissionerS. 8474 47 1 of finance, a certificate stating the appropriate civil service title 2 for the proposed position, the range of salary of comparable civil 3 service positions and a statement of the class specifications and line 4 of promotion into which such new position will be placed and any such 5 new position shall be created only with the title approved by the 6 personnel director. 7 (f) The heads of all agencies shall, except as otherwise provided by 8 law, have power to appoint and remove, subject to the provisions of the 9 state civil service law, all chiefs of bureaus and all other officers, 10 employees and subordinates in their respective administrations, depart- 11 ments or offices, without reference to the tenure of office of any 12 appointee and to assign them their duties. Nothing herein shall be 13 construed to preclude the mayor from entering into a collective bargain- 14 ing agreement which provides for a procedure governing the discipline of 15 employees, including their removal. 16 (g) The heads of city agencies or their designated representatives 17 shall fulfill the requirements for agency participation in matters 18 affecting the management of the agency in advance of collective bargain- 19 ing negotiations affecting employees. 20 (h) The head of each city agency shall ensure that such agency does 21 not discriminate against employees or applicants for employment pursuant 22 to federal, state and local law. 23 (i) The head of each city agency shall quarterly publish and submit to 24 the mayor, council, department of personnel, and the equal employment 25 practices commission a report on the agency's efforts during the previ- 26 ous quarter to implement the plan adopted pursuant to this section. 27 (j) The head of each city agency shall include in all employment 28 retention, recruitment, training and promotional program literature, 29 advertisements, solicitations and job applications, such language as may 30 be necessary to effectuate the purpose of this chapter. 31 (k) The head of each city agency shall require each employment agency, 32 or authorized representative of workers with which it has a collective 33 bargaining or other agreement or understanding and which is involved in 34 the performance of recruitment and retention with the agency to furnish 35 a written statement that such employment agency, labor union or repre- 36 sentative shall not discriminate against employees or applicants for 37 employment pursuant to federal, state or local law and that such union 38 or representative will cooperate in the implementation of the agency's 39 obligations pursuant to this chapter. 40 § 12-06. Management service. 41 (a) The personnel director, in consultation with the heads of agen- 42 cies, shall develop and submit to the mayor a city-wide plan and sched- 43 ule for the development of qualified and competent technical, profes- 44 sional, management, administrative, and, supervisory personnel in the 45 civil service to meet the managerial needs of city government. The 46 mayor shall approve, disapprove or modify the plan within one year after 47 the effective date of this charter. 48 (b) The city-wide plan shall establish a management service for city 49 agencies and shall provide for: 50 1. membership in the service of employees with significant policy, 51 administrative, supervisory, managerial or professional duties that 52 require the exercise of independent judgment in the scheduling and 53 assignment of work, program management or planning, evaluation of 54 performance or allocation of resources; 55 2. preference for appointment into management service shall be given 56 to qualified civil service employees pursuant to promotional examina-S. 8474 48 1 tions administered in a manner consistent with the requirements of the 2 state civil service law; 3 3. assessments of capacity and potential to perform managerial duties 4 as part of competitive tests for entry into the service and assignments 5 within the service; 6 4. a single managerial class of positions for each occupational series 7 within the service with assignment levels within each such class; 8 5. a plan for achieving equitable pay scales for members of the 9 service consonant with their duties and responsibilities; 10 6. merit increases, incentive awards, and recognition programs for 11 members of the services; 12 7. performance evaluations for members of the service to be used for 13 assignments, incentive awards, probationary period review, and discipli- 14 nary action; 15 8. a probationary period not to exceed one year for members of the 16 service; 17 9. management intern programs; and 18 10. training and career development programs. 19 (c) The personnel director shall conduct city-wide programs and func- 20 tions related to the management service; assist agencies in the imple- 21 mentation of the management service plan; and review and evaluate agency 22 performance under the plan. 23 § 12-07. Appointments and promotions. 24 (a) All appointments, promotions and changes in status of persons in 25 the public service of the city shall be made in the manner prescribed by 26 the constitution of the state and in accordance with the provisions of 27 the state civil service law and other provisions of law not inconsistent 28 therewith nor with this charter. 29 (b) Whenever qualifications for the appointment of persons to public 30 office are prescribed by law, the appointing officer shall, upon making 31 such appointment, file with the civil service commission a certificate 32 that such appointment complies with such law. 33 § 12-08. Power of investigation. 34 The personnel director and the city civil service commission shall 35 have the power to make investigations concerning all matters touching 36 the enforcement and effect of the provisions of the state civil service 37 law insofar as it applies to the city and the rules and regulations 38 prescribed thereunder, or concerning the actions of any examiner or 39 subordinate of the department, or of any officer or employee of the city 40 or of any county within the city, in respect to the execution of the 41 state civil service law; and in the course of such investigations the 42 personnel director of the city civil service commission shall have the 43 power to administer oaths, to compel the attendance of witnesses, and to 44 examine such persons as deemed necessary. 45 § 12-09. No compensation to unauthorized employees. 46 No officer of the city whose duty is to sign or countersign warrants 47 shall draw, sign or issue, or authorize the drawing, signing or issuing 48 of any warrant on the commissioner of finance or other disbursing offi- 49 cer of the city for payment of salary to any person in its service whose 50 appointment or retention has not been in accordance with the state civil 51 service law and the valid rules in force thereunder. 52 § 12-10. Examination for licenses. 53 The personnel director shall, unless otherwise provided by law, have 54 power, upon request of any person charged with the duty of issuing 55 licenses or permits, to conduct, under rules and regulations to be 56 established by the personnel director, examinations and tests to deter-S. 8474 49 1 mine the qualifications of persons applying for such licenses or 2 permits. The personnel director shall certify to the person having power 3 to issue the license or permit the result of any such examination or 4 test. 5 § 12-11. Officers or employees designated to serve in exempt civil 6 service positions. 7 (a) Notwithstanding any provision in this charter to the contrary, the 8 mayor or head of an agency may designate any officer or employee occupy- 9 ing a position in the competitive class of the civil service to serve in 10 a position in the exempt class, and in such case, the officer or employ- 11 ee so designated shall thereupon enter upon and exercise all the powers 12 and duties and receive the salary of such exempt position, and shall 13 retain all the rights, privileges and status of such officer or employ- 14 ee's position in the competitive class. 15 (b) The appointment of any person chosen to fill the position thus 16 left vacant shall be temporary and shall terminate upon the return of 17 such officer or employee to such position as provided in subdivision (e) 18 of this section. 19 (c) Such designation shall be in writing and shall be filed and remain 20 of record in the office of such agency, in the office of the personnel 21 director and in the office of the mayor and shall remain in force until 22 revoked by the mayor or head of such agency, as the case may be. 23 (d) Service in such position in the exempt class shall be credited as 24 service in the competitive class and the status of such officer or 25 employee in respect to pensions or otherwise shall not be adversely 26 affected by such designation. 27 (e) Upon the termination of the officer or employee's services in such 28 exempt position, except by dismissal for cause in the manner provided in 29 section seventy-five of the state civil service law, such officer or 30 employee shall immediately and without further application return to the 31 position in the competitive class with the status, rights, privileges 32 and salary enjoyed immediately prior to the designation to the position 33 in the exempt class as if service in the competitive position had been 34 continuous. 35 § 12-12. Residency exemption. 36 Any employee who was previously employed by the city of New York, and 37 who is appointed, reassigned or transferred to city employment, without 38 a break in service shall be exempt from any residency requirement in 39 connection with his or her employment or subsequent promotion, demotion, 40 reassignment, transfer or other personnel change. For the purpose of 41 this section, a break in service shall be defined as a period of more 42 than one year. 43 Chapter 13 44 Equal Employment Practices Commission 45 § 13-01. Equal employment practices commission. 46 (a) There shall be an equal employment practices commission which 47 shall review, evaluate and monitor the employment procedures, practices 48 and programs of any city agency and the department of personnel to main- 49 tain an effective affirmative employment program of equal employment 50 opportunity for minority group members and women who are employed by or 51 who seek employment with city agencies. 52 (b) The commission shall consist of three members who shall be compen- 53 sated on a per diem basis. The mayor, the council, and the comptroller 54 shall each appoint one member. The mayor shall appoint a member to serve 55 as the chair. 56 (c) Members shall be appointed for four-year terms.S. 8474 50 1 (d) The commission may, within the appropriations available therefor, 2 appoint an executive director and such deputies, assistants, and other 3 employees as may be needed for the performance of the duties prescribed 4 herein. 5 (e) The commission may meet as necessary to implement the provisions 6 of this chapter provided that the commission shall meet at least once 7 every eight weeks. 8 § 13-02. Duties and powers of the equal employment practices commis- 9 sion. 10 (a) The commission: 11 1. shall monitor the employment policies, programs and practices of 12 each city agency; and 13 2. monitor the coordination and implementation of any city affirmative 14 employment program of equal employment opportunity for minority group 15 members and women who are employed by or who seek employment with city 16 agencies, including the activities of the department of personnel, and 17 the civil service commission, pursuant to chapter twelve of this char- 18 ter, and any other agency designated by the mayor to assist in the 19 implementation or coordination of such efforts, and all city agencies 20 required by section 12-05 of this charter to establish agency program. 21 (b) The commission may request and shall receive from any city agency 22 such information, other than information which is required by law to be 23 kept confidential or which is privileged as attorney client communi- 24 cations, attorney work products or material prepared for litigation, and 25 such assistance as may be necessary to carry out the provisions of this 26 chapter. 27 (c) The commission shall communicate to any appropriate authority any 28 information regarding suspected or alleged violations of this chapter. 29 (d) The commission shall have the following powers and duties: 30 1. to review the uniform standards, procedures, and programs of the 31 department of personnel pursuant to section 12-04 of this charter, and 32 to review the plans adopted by city agencies in accordance with the 33 provisions of section 12-05 of this charter, and to provide any such 34 agency or the department of personnel with such comments and suggestions 35 as the commission deems necessary and appropriate; 36 2. to recommend to the department of personnel, all city agencies, or 37 any one or more particular agencies, procedures, approaches, measures, 38 standards and programs to be utilized by such agencies in their efforts 39 to ensure a fair and effective affirmative employment program of equal 40 employment opportunity for minority group members and women who are 41 employed by or seek employment with city agencies; 42 3. to recommend to any city agency actions which such agency should 43 consider including in its next annual plan as required by section 12-05 44 of this charter; 45 4. to advise and, if requested, assist city agencies in their efforts 46 to increase employment of minority group members and women who are 47 employed by or who seek employment with city agencies; 48 5. to audit and evaluate the employment practices and procedures of 49 each city agency and their efforts to ensure fair and effective equal 50 employment opportunity for minority group members and women at least 51 once every four years and whenever requested by the civil service 52 commission or the human rights commission or whenever otherwise deemed 53 necessary by this commission; 54 6. to make such policy, legislative and budgetary recommendations to 55 the mayor, council, the department of personnel or any city agency asS. 8474 51 1 the commission deems necessary to ensure equal employment opportunity 2 for minority group members and women; 3 7. to publish by the fifteenth of February of each year a report to 4 the mayor and the council on the activities of the commission and the 5 effectiveness of each city agency's affirmative employment efforts and 6 the efforts by the department of personnel to ensure equal employment 7 opportunity for minority group members and women who are employed by or 8 seek to be employed by city agencies; 9 8. to establish appropriate advisory committees; 10 9. to serve with such other agencies or officials as shall be desig- 11 nated by the mayor as the city liaison to federal, state and local agen- 12 cies responsible for compliance with equal employment opportunity for 13 minority group members and women who are employed by or who seek to be 14 employed by city agencies; and 15 10. to take such other actions as are appropriate to effectuate the 16 provisions and purposes of this chapter. 17 § 13-03. Compliance procedures. 18 (a) The commission shall conduct such study or investigations and hold 19 such hearings as may be necessary to determine whether agencies are in 20 compliance with the equal employment opportunity requirements of this 21 chapter and chapter twelve of this charter. 22 (b) For the purpose of ascertaining facts in connection with any study 23 or investigation authorized by this chapter, the commission shall have 24 power to compel the attendance of witnesses, to administer oaths and to 25 examine such persons as they may deem necessary. The commission or any 26 agent or employee thereof duly designated in writing by them for such 27 purposes may administer oaths or affirmations, examine witnesses in 28 public or private hearing, receive evidence and preside at or conduct 29 any such study or investigation. 30 (c) If the commission makes a preliminary determination pursuant to 31 section 13-02 of this chapter, that any plan, program, procedure, 32 approach, measures or standard adopted or utilized by any city agency or 33 the department of personnel does not provide equal employment opportu- 34 nity; and/or if the commission makes a preliminary determination pursu- 35 ant to this chapter and chapter twelve of this charter, that an agency 36 has not provided equal employment opportunity the commission shall noti- 37 fy the agency in writing of this determination and provide an opportu- 38 nity for the agency to respond. If the commission, after consideration 39 of any such response and after consulting with the agency, concludes 40 that the corrective actions, if any, taken or planned by the agency are 41 not sufficient to correct the non-compliance identified in the prelimi- 42 nary determination, it should make a final determination in writing, 43 including such recommended corrective action as the commission may deem 44 appropriate. The agency shall within thirty days thereafter respond to 45 the commission on any corrective action it intends to make and shall 46 make monthly reports to such commission on the progress of such correc- 47 tive action. If the commission, after a period not to exceed six months, 48 determines that the agency has not taken appropriate and effective 49 corrective action, the commission shall notify the agency in writing of 50 this determination and the commission may thereafter publish a report 51 and recommend to the mayor whatever appropriate corrective action the 52 commission deems necessary to ensure compliance with equal employment 53 opportunity pursuant to the requirements of this chapter and chapter 54 twelve of this charter. Within thirty days of such determination the 55 agency shall submit a written response to the commission and the mayor. 56 The mayor after reviewing the commission's findings and the agency'sS. 8474 52 1 response, if any, shall order and publish such action as he or she deems 2 appropriate. 3 Chapter 14 4 Collective Bargaining 5 § 14-01. Office of collective bargaining; director. 6 There shall be an office of collective bargaining, the head of which 7 shall be the director of such office, who shall be the person holding 8 the office of chairman of the board of collective bargaining. The 9 director may appoint, and at pleasure remove, two deputies. 10 § 14-02. Board of collective bargaining. 11 There shall be in the office of collective bargaining a board of 12 collective bargaining, which shall consist of five members. Two members 13 of the board shall be city members, two members of the board shall be 14 labor members, and one impartial member who shall be the chair. The 15 mayor shall have the power to appoint the city members of the board to 16 serve at the mayor's pleasure, and the labor members of the board from 17 designations by the municipal labor committee. Each labor and city 18 member shall have an alternate, who shall be appointed and removed in 19 the same manner as the member for whom he or she is the alternate. The 20 chair shall be elected by the unanimous vote of the city and labor 21 members, and shall serve for three year terms. 22 Notwithstanding any other provision of law, a labor member may not be 23 removed from the board except upon request of the municipal labor 24 committee, or except for cause, as hereinafter provided. Any member may 25 be removed for cause by a majority of the entire board, including at 26 least one city member and one labor member, after having been given a 27 copy of the charges against him and an opportunity to be heard in person 28 or by counsel in his or her defense upon not less than ten days notice. 29 Vacancies in the office of a city member or a labor member shall be 30 filled in the same manner as herein provided for appointment. Vacancies 31 in the office of an impartial member occurring otherwise than by expira- 32 tion of term shall be filled by unanimous vote of the city and labor 33 members for the unexpired balance of the term. 34 § 14-03. Bureau of certification. 35 There shall be in the office of collective bargaining a bureau of 36 certification, which shall be administered by the impartial member of 37 the board of collective bargaining. 38 § 14-04. Powers and duties. 39 The office of collective bargaining, the board of collective bargain- 40 ing and the bureau of certification shall have such powers and duties 41 with respect to labor relations and collective bargaining as shall be 42 prescribed by law and which shall be substantially equivalent to chapter 43 3 of title 12 of the New York city administrative code as it existed on 44 the date this charter was submitted pursuant to subdivision c of section 45 4 of chapter 773 of the laws of 1989 and shall also provide for a Staten 46 Island municipal labor committee. 47 § 14-05. Compensation. 48 (a) Board of collective bargaining; bureau of certification director. 49 The city members and the labor members of the board of collective 50 bargaining and their alternates shall serve without compensation. The 51 director shall be salaried for his or her services as director, chair of 52 the board of collective bargaining, and administrator of the bureau 53 certification. The director and all members of both such boards and 54 their alternates shall be entitled to receive a per diem fee and 55 reimbursement for their actual and necessary expenses incurred in the 56 performance of their duties. Fifty percent of the salary, fees, andS. 8474 53 1 expenses provided for in this subdivision shall be paid by the members 2 of the municipal labor committee, under rules and regulations issued by 3 the board of collective bargaining, which rules may provide how such 4 costs shall be distributed among such members. 5 (b) Members of mediation and impasse panels; arbitrators. Members of 6 mediation and impasse panels, and arbitrators, shall be paid a per diem 7 fee to be determined by the board of collective bargaining, unless the 8 parties to the particular dispute shall have agreed to a different fee, 9 and shall be reimbursed for their actual and necessary expenses incurred 10 in the performance of their duties. The public employer and public 11 employee organization which are parties to the particular negotiation or 12 grievance shall each pay fifty percent of such fees and expenses and 13 related expenses incidental to the handling of deadlocked negotiations 14 and unresolved grievances. 15 (c) Appointment of counsel and attorneys. The director may appoint a 16 counsel and attorneys, who, at the direction of the bureau of certif- 17 ication or the board of collective bargaining may appear for and repre- 18 sent the office of collective bargaining or either of the aforesaid 19 boards in any legal proceeding. 20 § 14-06. Publication of collective bargaining agreements. 21 Not later than sixty calendar days after the execution of a collective 22 bargaining agreement, a copy shall be published in a newspaper of gener- 23 al circulation in the city together with a statement by the mayor: 24 (a) of the total costs and current and future budgetary and economic 25 consequences of the agreement, and 26 (b) of the implications and likely impact of the agreement on the 27 efficient management of city agencies and the productivity of city 28 employees. 29 § 14-07. Budgeting for agreements. 30 (a) So far as practicable, each collective bargaining agreement cover- 31 ing city employees shall be executed prior to the commencement of the 32 fiscal year during which its provisions shall first be in effect. 33 (b) No part of any retroactive wage or salary settlement shall be 34 charged to the capital budget. 35 Chapter 15 36 Transitory Provisions 37 § 15-01. Rights of officers and employees of the city of New York 38 preserved. 39 (a) Nothing in this charter contained shall affect or impair the 40 rights or privileges of officers or employees of the city of New York 41 who are transferred, reassigned, appointed or otherwise employed by the 42 city in relation to the personnel, appointment, salaries, ranks, grades, 43 tenure of office, promotion, removal, pension and retirement rights, 44 civil rights or any other rights or privileges of officers or employees 45 of the city generally or officers or employees of any agency. 46 (b) There shall be no layoffs of officers or employees of the city of 47 New York classified municipal civil service as a result of transfer of 48 functions or work currently being performed by employees or officers of 49 the city of New York to the city of Staten Island. The city shall guar- 50 antee the continued employment of all officers and employees of the city 51 of New York who are performing duties and functions related to any 52 municipal governmental operation affecting the city of Staten Island at 53 the time this charter takes effect. 54 § 15-02. Transfer of officers and employees in case of transfer of 55 functions.S. 8474 54 1 Wherever by any provision of this charter functions, powers or duties 2 are assigned to any agency which have been heretofore exercised by the 3 city of New York, its agencies, boards, corporations or other related 4 entities, all officers and employees in the classified municipal civil 5 service who at the time when such charter provisions shall take effect 6 are engaged in the performance of such functions, powers or duties shall 7 be transferred to the agency to which such functions, powers or duties 8 are assigned by this charter, without examination and without affecting 9 existing compensation or pension or retirement rights, privileges or 10 obligations of such officers and employees. Furthermore, any employee to 11 be transferred to the city pursuant to this charter shall be given the 12 option to remain in the employ of the city of New York without diminu- 13 tion of rights, privileges, salary and benefits. Any employee not 14 included in such transfer shall be able to protest the decision pursuant 15 to the procedures set forth in section seventy of the civil service law. 16 § 15-03. Continuity of employee representation. 17 Employees transferred from the city of New York to the city except for 18 those designated managerial or confidential shall be included in employ- 19 er - employee negotiating units comparable to existing units in the city 20 of New York. With respect to employees to be placed in such negotiating 21 units, the public employee organization recognized or certified to 22 represent the employees in comparable city of New York negotiating units 23 shall be recognized as the city unit representative. 24 § 15-04. Continuity of collectively bargained benefits. 25 All rights, privileges and benefits provided by collectively bargained 26 agreements to city of New York employees shall be continued for such 27 employees transferred, reappointed or otherwise employed by the city 28 until such time as successor collective bargaining agreements are nego- 29 tiated. 30 § 15-05. Future alterations of the negotiating units. 31 Future alterations of the city negotiating units shall be made pursu- 32 ant to article fourteen of the state civil service law and office of 33 collective bargaining implementing legislation. 34 § 15-06. Establishment of new titles. 35 (a) The city shall consult and bargain on all terms and conditions of 36 employment with the appropriate public employee organization with 37 respect to the establishment of any new titles which are similar to or 38 reasonably related to titles already represented by such public employee 39 organizations in the city or in the city of New York. 40 (b) Any such titles for which terms and conditions are bargained 41 pursuant to subdivision (a) of this section shall be deemed to be 42 successor titles within the meaning of applicable law. So long as the 43 responsibilities of employees in these titles are reasonably related to 44 the responsibilities of employees currently represented by public 45 employee organizations, such titles shall be accredited or placed in a 46 negotiating unit represented by such public employee organizations. 47 § 15-07. Dispute resolution. 48 If a dispute arises, the office of collective bargaining shall deter- 49 mine which public employee organization is appropriate to represent 50 transferees, other hires, or employees in a new title on the basis of 51 the title's community of interest with titles in the city and the city 52 of New York. 53 § 15-08. Existing rights and remedies preserved. 54 No existing right or remedy of any character shall be lost or impaired 55 or affected by reason of the adoption of this charter.S. 8474 55 1 Chapter 16 2 Labor Relations 3 § 16-01. Department; commissioner. 4 (a) There is established a department of labor relations, the head of 5 which shall be the commissioner of labor relations. 6 (b) The commissioner of labor relations is hereby authorized to repre- 7 sent the mayor in the conduct of all relations between the city and 8 labor unions, associations, or other organizations representing employ- 9 ees of the city. The commissioner of labor relations shall be responsi- 10 ble for the conduct of all relations and she or he shall establish broad 11 city wide policy governing them. 12 (c) The appropriate city staff agencies shall render advice to the 13 commissioner of labor relations on questions of law, finance, personnel 14 policy, operations and management. 15 § 16-02. Powers and duties. 16 (a) The commissioner of labor relations is authorized to negotiate 17 labor agreements with the unions certified as representing the various 18 groups of city employees, and to prepare and sign labor agreements on 19 behalf of the mayor. 20 (b) The heads of all city departments and agencies and the staff of 21 the office of the mayor shall cooperate fully with the commissioner of 22 labor relations in carrying out his or her responsibilities. This coop- 23 eration shall include, but not be limited to the following: 24 1. notice and transmittal to the commissioner of labor relations of 25 all inquiries and requests from labor unions, associations or other 26 organizations representing employees of the city soliciting interpreta- 27 tion of any agreement; 28 2. actions by city departments or agencies based upon interpretations 29 of collective bargaining agreement shall not be taken without prior 30 consultation with the commissioner of labor relations; 31 3. agreements, contracts or understandings, verbal or written, shall 32 be consummated between the head of any city department or agency or one 33 of his or her subordinates, and a union or organization representing 34 employees of that agency, only after prior consultation and review by 35 the commissioner of labor relations; 36 4. grievance and dispute settlement procedures such as arbitration, 37 mediation, fact-finding and labor-management conference discussions 38 relating to city employee labor disputes or grievances, either advisory 39 or binding, shall be entered into by city departments or agencies only 40 after prior consultation and review of the commissioner of labor 41 relations. Such settlement procedures shall be processed through and 42 handled by the department of labor relations; 43 5. city departments and agencies shall not unilaterally change, in a 44 substantial way, the working conditions of their employees without prior 45 consultation with the commissioner of labor relations; 46 6. city departments and agencies shall not take disciplinary action 47 against any employee or group of employees involved in a labor relations 48 dispute without prior consultation with the commissioner of labor 49 relations; 50 7. city departments and agencies shall provide the commissioner of 51 labor relations with all necessary information needed in the conduct of 52 labor negotiations affecting employees in their departments and shall 53 participate with the commissioner of labor relations in the negotiations 54 as, in the opinion of the commissioner of labor relations, may be neces- 55 sary from time to time;S. 8474 56 1 8. heads of city departments and agencies and the staff of the office 2 of the mayor shall give notice to the commissioner of labor relations of 3 all meetings held with labor unions, associations, or other organiza- 4 tions representing city employees; 5 9. heads of city departments and agencies and the staff of the mayor 6 shall consult with the commissioner of labor relations prior to the 7 issuance of any public or press statement relating to labor relations 8 with city employees; 9 10. the labor relations officer of each city department and agency 10 shall act as liaison with the department of labor relations and shall 11 keep that department informed of employee relations problems in his or 12 her department or agency. In particular, he or she shall immediately 13 notify the department of labor relations of any threatened or actual 14 strike, work stoppage, job action, mass resignation or picketing by 15 employees of his or her department or agency. 16 § 3-001. Legislative findings and declaration of purposes. 17 The legislature hereby finds and declares that it is essential that a 18 municipal corporation of the city of Staten Island be authorized to 19 represent the interests of the city of Staten Island during the transi- 20 tion period prior to the date of establishment of the city, provide 21 preparation for the operations of the city and provide financing for 22 such transition period and initial funding for the city. 23 § 3-002. Elections. 24 1. The board of elections of the city of New York shall provide for 25 the election of a mayor, a city comptroller and a common council, as 26 provided for in chapter 773 of the laws of 1989, as amended, for a poli- 27 tical subdivision of the state to be known as the city of Staten Island, 28 at the general election to be held in November next succeeding the date 29 on which this section shall have become a law in the county of Richmond. 30 Such expenses for such election will be reimbursed by the state from 31 those moneys to be allocated as general state aid to a city of Staten 32 Island. Chapter 7 of title 3 of the administrative code of the city of 33 New York, known as the "New York City Campaign Finance Act", shall not 34 apply to such elections. 35 2. The Mayor elect and common council elect of the city of Staten 36 Island, upon the constitutional oath of office, are hereby authorized to 37 represent the interests of the city of Staten Island, and as govern- 38 mental officers of the city of Staten Island are authorized to enter 39 into negotiations as provided under this act and enter into such 40 purchase or employment contracts as would be authorized for such city 41 subsequent to the date of establishment. Any such contracts or agree- 42 ments from such negotiations shall be binding upon the city of Staten 43 Island. 44 3. The mayor elect, the comptroller elect and the common council elect 45 shall take the oath of office on the first of January next succeeding 46 the date on which this act shall have become a law, at which time the 47 city shall be incorporated. The mayor, city comptroller and common coun- 48 cil shall establish accounts according to the provisions of the charter 49 of the city of Staten Island and appoint such other city officers as may 50 be necessary in accordance with the provisions of the city charter. 51 § 3-003. Staten Island city government-transition. 52 1. Short title. This section may be cited as the "Staten Island City 53 Government-Transition Act". 54 2. Definitions. For the purposes of this section: 55 (a) "City" means the city of Staten Island.S. 8474 57 1 (b) "Director of management and budget" means the director of manage- 2 ment and budget of the city of Staten Island. 3 (c) "Corporation" means the municipal corporation as created by this 4 section. 5 (d) "Mayor" means the mayor of the city of Staten Island. 6 (e) "Comptroller" means the comptroller of the city of Staten Island. 7 (f) "State" means the state of New York. 8 (g) "Bonds" and "notes" means revenue bonds and notes respectively, 9 issued by the corporation pursuant to this section. 10 (h) "Revenues" means all aid, rents, fees, charges, payments and other 11 income and receipts paid or payable to the municipal corporation for the 12 account of the city of Staten Island, including any payment required to 13 be made to the corporation by this section. 14 (i) "Operating expenses" means all expenses incurred by the government 15 in the administration of the municipal corporation including but not 16 limited to salaries, administrative expenses, insurance premiums, audit- 17 ing and legal expenses and fees and expenses incurred for professional 18 consultants and fiduciaries. 19 (j) "Capital reserve fund requirement" means as of any particular date 20 of computation, an amount of money equal to the amount required, for the 21 then current fiscal year of the municipal corporation, to pay interest 22 during such fiscal year on all bonds of the corporation outstanding on 23 said date of computation, the principal amount of all bonds of the 24 corporation outstanding on said date of computation which matures during 25 such fiscal year and the amount of sinking fund payments payable during 26 such fiscal year with respect to any bonds of the corporation outstand- 27 ing on said date of computation. 28 (k) "Sinking fund payment" means the amount of money specified in the 29 resolution authorizing bonds as payable into a sinking fund during a 30 particular fiscal year for the retirement of term bonds which mature 31 after such fiscal year, but shall not include any amount payable by 32 reason only of the maturity of the bond. 33 3. General powers as a municipal corporation. The city shall have the 34 following powers in addition to those specially conferred elsewhere in 35 this act: (a) to sue and be sued; (b) to have a seal and alter the same 36 at pleasure; (c) to make and alter by-laws for its organization and 37 internal management and, subject to agreements with noteholders or bond- 38 holders, to make rules and regulations governing the use of its property 39 and facilities; (d) to make and execute contracts, leases, subleases and 40 all other instruments or agreements necessary or convenient for the 41 exercise of its powers and functions under this section; (e) to purchase 42 real or personal property necessary and convenient for its municipal 43 purposes; to execute and deliver deeds for real property held in its own 44 name; and to sell or otherwise to dispose of such real or personal prop- 45 erty that, in the judgment of the city, is no longer necessary for its 46 municipal purposes; (f) to appoint officers, agents and employees, 47 prescribe their duties and qualifications and fix their compensation; 48 (g) to commence any action to protect or enforce any right conferred 49 upon it by any law, contract or other agreement; (h) to borrow money and 50 to issue negotiable notes or bonds or other obligations and to fund or 51 refund the same, and to provide for the rights of the holders of its 52 obligations; (i) subject to the provisions of any contract with note- 53 holders or bondholders, to invest any funds held in reserves or sinking 54 funds, or any funds not required for immediate use or disbursement, at 55 the discretion of the city, in obligations of the state or federal 56 government, obligations the principal of and interest on which are guar-S. 8474 58 1 anteed by the state or federal government, or obligations of agencies of 2 the federal government which may, from time to time, be legally 3 purchased by savings banks of the state as investments of funds belong- 4 ing to them or in their control and which have been approved by the 5 state comptroller or in secured time deposits or other interest bearing 6 accounts secured by such obligations; (j) subject to the provisions of 7 any contract with noteholders or bondholders, to purchase notes or bonds 8 of the city; (k) to procure insurance against any loss in such amounts 9 and from such insurers as it deems desirable; (l) to engage the services 10 of consultants on a contract basis for rendering professional and tech- 11 nical assistance and advice; (m) to contract for and to accept any gifts 12 or grants or loans of funds or property or financial or other aid in any 13 form from the federal government or any agency or instrumentality there- 14 of, or from any other source and to comply with the terms and conditions 15 thereof; (n) as security for the payment of the principal of and inter- 16 est on any bonds so issued and any agreements made in connection there- 17 with, to pledge all or any part of its revenues; (o) to enact such local 18 laws to take effect on the date of establishment as shall be necessary 19 to provide for effective transition of government; and (p) to do any and 20 all things necessary or convenient to carry out its purposes and exer- 21 cise the powers expressly given and granted in this act. 22 4. Notes and bonds of the city. The city shall have power and is here- 23 by authorized from time to time to issue its negotiable notes and bonds 24 in conformity with applicable provisions of the uniform commercial code, 25 the local finance law and the state finance law. 26 § 3-004. Employees of the city of Staten Island. 27 1. Notwithstanding any inconsistent provisions of this act, the 28 appointment and promotion of all employees of and for the city shall be 29 made in accordance with the provisions of the state civil service law 30 and shall be subject to the jurisdiction of the state civil service 31 commission and the compensation for such employees shall be fixed by the 32 city. 33 2. Any municipality and the city shall have the power to agree to 34 provide for the transfer to the city of agents, employees and facilities 35 of such municipality to enable the city to fulfill its municipal 36 purposes. Employees of such municipality to be transferred to the city 37 pursuant to this act shall be automatically appointed and transferred to 38 the city in the same or equivalent classification and position they hold 39 at the time of the transfer. The city, its officers and employees, 40 shall be subject to article fourteen of the state civil service law and 41 for all purposes the city shall remain and be deemed "public employer". 42 Employees who are members or beneficiaries of any existing pension or 43 retirement system shall continue to have such rights, privileges, obli- 44 gations or status with respect to such system as are prescribed by law 45 on the date this act takes effect, and all such employees who have been 46 appointed to positions in municipal service in accordance with the 47 provisions of the state civil service law under the rules of the city 48 civil service commission shall have the same status with respect thereto 49 in the service of the city as they had in prior municipal service. 50 3. Transfer rights. Notwithstanding any other provision of law, there 51 shall be no layoffs of officers or employees of the preceding munici- 52 pality, its agencies, authorities, boards, corporations or other related 53 entities as a result of the transfer of functions or work currently 54 performed by these officers and employees to the city of Staten Island. 55 All such employees who have been assigned to work on Staten Island or 56 who have been substantially engaged in the performance of a function toS. 8474 59 1 be transferred to the city of Staten Island shall be transferred to 2 positions in employment by the city of Staten Island upon the establish- 3 ment of the city of Staten Island and shall retain all rights, privi- 4 leges, benefits and salaries to which any such employee was previously 5 entitled as an employee of the preceding municipality. Notice that an 6 employee is subject to transfer shall be given to an employee no less 7 than twenty days prior to the effective date of transfer. Any employee 8 so notified may opt to remain in his or her employment by the preceding 9 municipality rather than be transferred by so informing his or her 10 employer ten days prior to the transfer date. Such employee shall be 11 retained in employment by the preceding municipality and retain all 12 rights, privileges, benefits and salaries to which the employee was 13 entitled prior to the establishment of the city of Staten Island. 14 4. Transfer mechanism. The mechanism for the transfer of the employees 15 to the city of Staten Island shall be the subject of negotiations among 16 the preceding municipality, the city of Staten Island and the appropri- 17 ate public employee organizations. The parties shall negotiate an 18 appeals process for employees aggrieved by their exclusion from the 19 transfer. If the parties are unable to reach agreement as to transfer 20 issues, the parties shall submit such issues to mediation and, if neces- 21 sary, impasse panels to be appointed in accordance with the collective 22 bargaining provisions of the administrative code of the preceding muni- 23 cipality. Transferees represented by the public employee organizations 24 shall be entitled to all rights and benefits which they were entitled to 25 prior to transfer including, but not limited to, seniority and accrued 26 annual and sick leave time. 27 5. Vacancies. Any employee of the preceding municipality not subject 28 to the transfer set forth in subdivision three of this section shall be 29 eligible to transfer to a vacant position in a title in the city of 30 Staten Island requiring the same, similar or related duties to duties 31 actually performed in the preceding municipality title by submitting 32 written notice of intent to transfer to the city of Staten Island direc- 33 tor of personnel within six months of the establishment of the city of 34 Staten Island. The preceding municipality shall inform in writing 35 employees who are residents of Staten Island of their right to apply for 36 transfer. Immediately upon receipt of any notice to transfer, the direc- 37 tor of personnel shall establish for each city of Staten Island title 38 two lists of eligible employees who give timely notice in order of the 39 employees' preceding municipality seniority in the title requiring the 40 same, similar or related duties. The first list shall include the names 41 of transfer applicants who are domiciled in the city of Staten Island on 42 the date of the submission of the notice. The second list shall include 43 the names of transfer applicants not domiciled in the city of Staten 44 Island. Appointments to any vacant positions in these titles shall be 45 made from the Staten Island domicile list and, when that list is 46 exhausted, from the second list until such lists are exhausted or until 47 a period of four years from the date of the establishment of the indi- 48 vidual list has expired. 49 6. Residency exemption. Any employee of the preceding municipality 50 appointed, reassigned or transferred to city of Staten Island employment 51 without a break in service shall be exempt from any residency require- 52 ment in connection with his or her employment or subsequent promotion, 53 demotion, reassignment, transfer or other personnel change. For the 54 purpose of this section, a break in service shall be defined as a period 55 of more than one year. Notwithstanding any other provision of law, any 56 Staten Island resident employed by the preceding municipality or onS. 8474 60 1 leave of absence from such employment on the date of the establishment 2 of the city of Staten Island shall be exempt from any residency require- 3 ment in connection with his or her preceding municipality employment or 4 subsequent preceding municipality promotion, demotion, reassignment, 5 transfer or other personnel change. 6 7. Retirement. The city of Staten Island shall participate in the 7 State's retirement systems. 8 (a) On and after the date of the establishment of the city of Staten 9 Island, employees of the preceding municipality who are transferred to 10 employment in the city of Staten Island shall thereupon become members 11 of the appropriate state retirement system to the extent permitted or 12 required by the provisions of the retirement and social security law, 13 the education law or local law, as appropriate, and the employees' 14 reserves in any other retirement system shall be transferred to the 15 appropriate New York state retirement system without request by them or 16 notice to the retirement systems, except that any such employee who is a 17 member of one of the retirement systems of the preceding municipality 18 may elect to continue membership in such system. Any election pursuant 19 to this subdivision shall be made no later than the one hundred twenti- 20 eth day succeeding the date on which the provisions of this section 21 become effective, by filing a written notice thereof with the adminis- 22 trative head of the appropriate New York state, preceding municipality 23 and city of Staten Island retirement systems, as appropriate, and once 24 made and filed, shall be irrevocable. Upon the retirement of an employee 25 who has made such an election, the calculation of final average salary 26 by the retirement system of the preceding municipality shall be 27 performed as if the salary earned as a city of Staten Island employee on 28 and after the effective date of this section was earned in employment of 29 the preceding municipality. In the case of an employee who remains or 30 becomes a member of a New York state employees' retirement system pursu- 31 ant to this subdivision, the retirement system of the preceding munici- 32 pality shall make a transfer of reserves, contributions and credits to 33 such New York state employees' retirement system, in the manner required 34 by section 43 of the retirement and social security law. 35 (b) The comptroller of the preceding municipality shall certify to the 36 comptroller of the city of Staten Island and the state comptroller or 37 other chief officer of a state pension system the amount of money 38 required to be paid by the city of Staten Island for pension costs 39 resulting from elections made pursuant to paragraph (a) of this subdivi- 40 sion and the comptroller of the city of Staten Island shall pay to the 41 retirement system of the preceding municipality upon approval by the 42 state comptroller or other chief officer of a state pension system, the 43 amounts so certified by the comptroller of the preceding municipality. 44 The comptroller of the preceding municipality shall also certify to the 45 comptroller of the city of Staten Island and the state comptroller or 46 other chief officer of a state pension system the amount of money 47 required to be contributed by such employees. The comptroller of the 48 city of Staten Island shall be authorized to provide for the withholding 49 or withhold the contribution of such employees and the payment of that 50 amount to the retirement system of the preceding municipality. The 51 amount so certified pursuant to this paragraph shall be the same as the 52 amounts required to be contributed for similarly situated city employees 53 by the preceding municipality and by employees of the preceding munici- 54 pality. 55 8. Health insurance coverage. Health insurance coverage for city of 56 Staten Island employees, persons retired from city of Staten IslandS. 8474 61 1 employment and dependents of such employees and retirees shall be 2 provided in accordance with the personnel and labor, health insurance 3 coverage for municipal employees, persons retired from municipal employ- 4 ment and dependents of such employees and retirees provisions of the 5 administrative code of the preceding municipality unless the duly recog- 6 nized public employee representative negotiates altered terms. 7 9. Quasi-public entities. Rights and benefits of employees currently 8 employed by public authorities, boards, corporations and other quasi- 9 public entities of the preceding municipality shall be preserved upon 10 any transfer of functions resulting from the establishment of the city 11 of Staten Island. 12 § 3-005. Assistance to the city of Staten Island. 13 With the consent of any municipality, the city of Staten Island may 14 use agents, employees and facilities of such municipality, paying to the 15 municipality its agreed proportion of the compensation or costs. 16 § 3-006. Provision of municipal services in the city of Staten Island. 17 During the transition period the mayor and comptroller of the city of 18 Staten Island and the mayor and comptroller of the preceding munici- 19 pality are authorized to enter into agreements as to the provision of 20 municipal services by the preceding municipality to the city of Staten 21 Island to be provided on or after the date of establishment of the city 22 of Staten Island and the terms and conditions thereof. 23 § 3-007. Debt, property, obligations and other allocations. 24 1. (a) Proportion of debt to be assumed by the city of Staten Island. 25 The proportion of the debt of the preceding municipality which shall be 26 assumed by the city of Staten Island, as constituted by this act, shall 27 be determined in the following manner: The mayor and the comptroller of 28 the city of Staten Island, as representing the city of Staten Island and 29 the mayor and the comptroller of the preceding municipality, are hereby 30 authorized and empowered to agree if they can, as to the amount of the 31 debt of the preceding municipality, which should equitably and properly 32 be assumed by the city of Staten Island. If the mayor and the comp- 33 troller of the city of Staten Island and the mayor and the comptroller 34 of the preceding municipality shall be unable to agree within six months 35 after this section takes effect as to the proportion of said debt of the 36 preceding municipality to be assumed by the city of Staten Island, the 37 supreme court of the third judicial district shall have power to deter- 38 mine the proportion of said debt of the preceding municipality to be 39 assumed by the city of Staten Island, and to enforce such award, deci- 40 sion and determination as shall be made in an action to be brought by 41 and in the name of either of said parties not less than six months nor 42 more than one year after this section takes effect. Nothing herein 43 contained shall impair the obligation of any contract; and the property 44 and inhabitants of such part of the preceding municipality as is by this 45 act included within the city of Staten Island, shall continue liable to 46 the existing creditors of the said preceding municipality, in like 47 manner, as if this act had not been passed. But from and after the 48 taking effect of this section, the preceding municipality shall have no 49 power to issue any bond, obligation or other evidence of indebtedness 50 which shall bind or render liable the property or inhabitants of any 51 part of said municipality included within the city of Staten Island as 52 hereby constituted. The apportionment of the debt of the preceding muni- 53 cipality shall be determined according to the relative assessed valu- 54 ation of the real property included in, or remaining without the city of 55 Staten Island.S. 8474 62 1 (b) Proportion of obligations other than debt to be assumed by the 2 city of Staten Island. The proportion of the obligations other than debt 3 of the preceding municipality which shall be assumed by the city of 4 Staten Island, as constituted by this act, shall be determined in the 5 following manner: The mayor and the comptroller of the city of Staten 6 Island, as representing the city of Staten Island and the mayor and the 7 comptroller of the preceding municipality, are hereby authorized and 8 empowered to agree if they can, as to the amount of the obligations 9 other than debt of the preceding municipality, which should equitably 10 and properly be assumed by the city of Staten Island. If the mayor and 11 the comptroller of the city of Staten Island and the mayor and the comp- 12 troller of the preceding municipality shall be unable to agree within 13 six months after this section takes effect as to the proportion of said 14 obligations other than debt of the preceding municipality to be assumed 15 by the city of Staten Island, the supreme court of the third judicial 16 district shall have power to determine the proportion of said obli- 17 gations other than debt of the preceding municipality to be assumed by 18 the city of Staten Island, and to enforce such award, decision and 19 determination as shall be made in an action to be brought by and in the 20 name of either of said parties not less than six months nor more than 21 one year after this section takes effect. Nothing herein contained shall 22 impair the obligation of any contract; and the property and inhabitants 23 of such part of the preceding municipality as is by this act included 24 within the city of Staten Island, shall continue liable to the existing 25 obligees of the said preceding municipality, in like manner, as if this 26 act had not been passed. But from and after the taking effect of this 27 section, the preceding municipality shall have no power to bind or 28 render liable the property or inhabitants of any part of said munici- 29 pality included within the city of Staten Island as hereby constituted. 30 (c) Disposition of real and personal property owned by or held in 31 trust for the preceding municipality. All the real property owned by the 32 preceding municipality and situated in that part of said municipality 33 included within the city of Staten Island, as constituted by this act, 34 is hereby vested in the said city of Staten Island and divested out of 35 the preceding municipality, and all of the real property owned by the 36 preceding municipality and situated elsewhere in said municipality is 37 hereby vested in the preceding municipality and divested out of the said 38 city of Staten Island. All of the property owned by the preceding muni- 39 cipality other than real property, including money, investments, securi- 40 ties on investments and money held in trust for the benefit of said 41 municipality, directly or indirectly, shall be divided between the 42 preceding municipality and the city of Staten Island, as constituted by 43 this act, and the proportion of the same to which each shall, in equity 44 and good conscience, be entitled to receive upon such division, shall be 45 ascertained and determined by agreement by and between the mayor and 46 comptroller of the preceding municipality, upon the one side, and the 47 mayor and the comptroller of the said city of Staten Island, upon the 48 other side, and in the case of their inability to agree upon such divi- 49 sion within six months after this section shall take effect, the supreme 50 court in the third judicial district is hereby empowered to divide the 51 same between them and to ascertain and award to each its equitable 52 proportion thereof, and to enforce its determination thereon, and either 53 of the said municipalities may institute and prosecute, in its own name, 54 an action in said court for that purpose after the expiration of six 55 months and before the expiration of one year after this section takes 56 effect.S. 8474 63 1 (d) Documents. The preceding municipality shall provide the city of 2 Staten Island with all books, papers, documents and files held by such 3 municipality which apply primarily to the area of the city of Staten 4 Island and shall make available for copying by the city of Staten Island 5 any other books, papers, documents and files which such city shall 6 request as pertaining to such city in any other manner. 7 2. (a) Proportion of debt to be assumed by the city school district of 8 the city of Staten Island. The proportion of the debt of the city school 9 district of the preceding municipality which shall be assumed by the 10 city school district of the city of Staten Island, as constituted by 11 this act, shall be determined in the following manner: The board of 12 education of the city school district of the city of Staten Island and 13 the board of education of the city school district of the preceding 14 municipality, are hereby authorized and empowered to agree if they can, 15 as to the amount of the debt of the city school district of the preced- 16 ing municipality, which should equitably and properly be assumed by the 17 city school district of the city of Staten Island. If the board of 18 education of the city school district of the city of Staten Island and 19 the board of education of the city school district of the preceding 20 municipality shall be unable to agree within six months after this 21 section takes effect as to the proportion of said debt of the city 22 school district of the preceding municipality to be assumed by the city 23 school district of the city of Staten Island, the supreme court of the 24 third judicial district shall have power to determine the proportion of 25 said debt of the city school district of the preceding municipality to 26 be assumed by the city school district of the city of Staten Island, and 27 to enforce such award, decision and determination as shall be made in an 28 action to be brought by and in the name of either of said parties not 29 less than six months nor more than one year after this section takes 30 effect. Nothing herein contained shall impair the obligation of any 31 contract; and the property and inhabitants of such part of the city 32 school district of the preceding municipality as is by this act included 33 within the city school district of the city of Staten Island, shall 34 continue liable to the existing creditors of the city school district of 35 the said preceding municipality, in like manner, as if this act had not 36 been passed. But from and after the taking effect of this section, the 37 city school district of said preceding municipality shall have no power 38 to issue any bond, obligation or other evidence of indebtedness which 39 shall bind or render liable the property or inhabitants of any part of 40 the city school district of said municipality included within the city 41 school district of the city of Staten Island as hereby constituted. The 42 apportionment of the debt of the city school district of the preceding 43 municipality shall be determined according to the relative assessed 44 valuation of the real property included in, or remaining without the 45 city school district of the city of Staten Island. 46 (b) Disposition of real and personal property owned by or held in 47 trust for the city school district of the preceding municipality. All 48 the real property owned by the city school district of the preceding 49 municipality and situated in that part of the city school district of 50 said municipality included within the city school district of the city 51 of Staten Island, as constituted by this act, is hereby vested in the 52 city school district of the city of Staten Island and divested out of 53 the city school district of the preceding municipality, and all of the 54 real property owned by the city school district of the preceding munici- 55 pality and situated elsewhere in the city school district of the preced- 56 ing municipality is hereby vested in the city school district of theS. 8474 64 1 preceding municipality and divested out of the city school district of 2 the city of Staten Island. All of the property owned by the city school 3 district of the preceding municipality other than real property, includ- 4 ing money, investments, securities on investments and money held in 5 trust for the benefit of the city school district of the preceding muni- 6 cipality, directly or indirectly, shall be divided between the city 7 school district of the preceding municipality and the city school 8 district of the city of Staten Island, as constituted by this act, and 9 the proportion of the same to which each shall, in equity and good 10 conscience, be entitled to receive upon such division, shall be ascer- 11 tained and determined by agreement by and between the board of education 12 of the city school district of the preceding municipality, upon the one 13 side, and the board of education of the city school district of the city 14 of Staten Island, upon the other side, and in the case of their inabili- 15 ty to agree upon such division within six months after this section 16 shall take effect, the supreme court in the third judicial district is 17 hereby empowered to divide the same between them and to ascertain and 18 award to each its equitable proportion thereof, and to enforce its 19 determination thereon, and either of the said school districts may 20 institute and prosecute, in its own name, an action in said court for 21 that purpose after the expiration of six months and before the expira- 22 tion of one year after this section takes effect. 23 (c) Documents. The city school district of the preceding municipality 24 shall provide the city school district of the city of Staten Island with 25 all books, papers, documents and files held by such school district 26 which apply primarily to the area of the city school district of the 27 city of Staten Island, including its property, faculty and students, and 28 shall make available for copying by the city school district of the city 29 of Staten Island any other books, papers, documents and files which the 30 city school district of the city of Staten Island shall request as 31 pertaining to the city school district of the city of Staten Island in 32 any other manner. 33 § 3-008. Continuance of municipal services. 34 The preceding municipality shall be obligated to continue to maintain 35 during the transition period all municipal services and related equip- 36 ment and supplies at a level materially equivalent to that level of 37 municipal services and related equipment and supplies for the geograph- 38 ical area of the city of Staten Island as existing on the first of July 39 in the year in which this act shall have become a law subject to exist- 40 ing budget restraints of the preceding municipality. 41 § 3-009. Powers of the city of Staten Island to adopt and amend local 42 laws. 43 Notwithstanding the provisions of any other law, the common council of 44 the city of Staten Island shall have the power to adopt local laws in 45 accordance with the provisions of section 10 of the municipal home rule 46 law; provided, however, that no such local law adopted during the tran- 47 sition period shall be effective until the date of establishment of the 48 city of Staten Island. 49 § 3-010. Powers of the city of Staten Island relating to home rule 50 powers. 51 In accordance with the provisions of article IX of the constitution, 52 the city of Staten Island during the transition period shall have all of 53 the rights, powers, privileges and immunities granted to local govern- 54 ments with respect to the power of the legislature to act in relation to 55 the property or affairs of the city of Staten Island. 56 § 4-001. City school district of the city of Staten Island.S. 8474 65 1 1. The territory of the city of Staten Island in the county of Rich- 2 mond, on the date when this act shall take effect, shall be and is here- 3 by constituted a city school district, and shall be known as the city 4 school district of the city of Staten Island and shall have and enjoy 5 all the powers and duties of a city school district under the provisions 6 of the education law. 7 2. Such district shall be under the control of a board of education, 8 which shall be composed pursuant to the provisions of article 52 of the 9 education law. 10 § 4-002. Section 2550 of the education law, as amended by chapter 65 11 of the laws of 1972, is amended to read as follows: 12 § 2550. Application of article. This article shall apply to the city 13 school districts of the following cities only: New York, Buffalo, 14 Rochester, Syracuse, Staten Island and Yonkers. 15 § 4-003. Section 2552 of the education law is amended by adding a new 16 subdivision e to read as follows: 17 e. City school district of the city of Staten Island: nine members. 18 § 4-004. Subdivisions 1, 2, 4, 5 and 6 of section 2553 of the educa- 19 tion law, subdivision 1 as separately amended by chapters 211 and 441 of 20 the laws of 1980, subdivisions 2, 4 and 5 as added by chapter 242 of the 21 laws of 1974 and subdivision 6 as amended by chapter 211 of the laws of 22 1980, are amended to read as follows: 23 1. No person shall be eligible to the office of member of a board of 24 education who is not a citizen of the United States, who is not quali- 25 fied to register for or vote at an election in accordance with the 26 provisions of section 5-106 of the election law, and who, in the case of 27 the city school district of the city of Yonkers, has not been a resident 28 of the city school district for which he or she is chosen for a period 29 of at least three years immediately preceding the date of his or her 30 election or appointment and who, in the case of the city school district 31 of the city of Buffalo, in the case of a member to be elected at large 32 is not a qualified voter of such city school district and who has not 33 been a resident of such district for a period of at least three years 34 immediately preceding the date of his or her election and in the case of 35 a member elected from a city school subdistrict is not a qualified voter 36 of such city school subdistrict and has not been a resident of the city 37 school district for three years and a resident of the city school 38 subdistrict which he or she represents or seeks to represent for a peri- 39 od of one year immediately preceding the date of his or her election, 40 and who, in the case of the city school district of the city of Roches- 41 ter, is not a qualified voter under section 5-102 of the election law of 42 such city school district; and who, in the case of the city school 43 district of the city of Staten Island has been a qualified voter under 44 section 5-102 of the election law of such city school district for at 45 least ninety days immediately preceding the date of his or her election 46 or appointment; and who in the case of the city school district of the 47 city of Syracuse has not been a qualified voter under section 5-102 of 48 the election law of such city school district for at least ninety days 49 immediately preceding the date of his or her election or appointment. 50 2. In the city school districts of the cities of Rochester and Syra- 51 cuse the members of such board of education shall be chosen by the 52 voters at large at either a general or municipal election, or at both. 53 In the city school district of the city of Staten Island the members of 54 such board of education shall be chosen pursuant to the provisions of 55 subdivision eleven of this section. In the city school district of theS. 8474 66 1 city of Buffalo the members of such board of education shall be chosen 2 pursuant to the provisions of subdivision ten of this section. 3 4. In the city school districts of the following cities, the terms of 4 such members shall be as follows: 5 a. Rochester: Four Years; 6 b. Syracuse: Four Years; 7 c. Yonkers: Five Years; and 8 d. Staten Island: Three Years. 9 5. The terms of one-fifth of all the members of a board of education, 10 or of a fraction as close to one-fifth thereof as possible, shall expire 11 annually on the first Tuesday in May, except in the city school 12 districts of the cities of Buffalo, Rochester, Staten Island and Syra- 13 cuse. 14 6. If a vacancy occurs other than by expiration of term in the office 15 of a member of a board of education in a district in which such members 16 are elected at a general or municipal election, such vacancy shall be 17 filled by appointment by the mayor until the next general or municipal 18 election is held, and such vacancy shall then be filled at such election 19 for the unexpired portion of such term, except that in the city school 20 district of the city of Rochester any such vacancy shall be filled 21 pursuant to the provisions of subdivision nine of this section and 22 except further that any such vacancy on the board of education of the 23 city school district of the city of Buffalo shall be filled pursuant to 24 the provisions of subdivision ten of this section and except that any 25 vacancy on the board of education of the city school district of the 26 city of Staten Island shall be filled pursuant to the provisions of 27 subdivision eleven of this section. 28 § 4-005. Section 2553 of the education law is amended by adding a new 29 subdivision 11 to read as follows: 30 11. a. The members of the board of education of the city school 31 district of the city of Staten Island shall be elected by the qualified 32 voters of such city as provided herein. 33 b. The members of the board of education shall be elected at large 34 throughout the city as provided for in this subdivision. 35 c. (1) Every registered voter residing in the city school district of 36 the city of Staten Island and every parent of a child of school age 37 under the jurisdiction of such school district who is a resident of the 38 city of Staten Island for at least ninety days immediately preceding 39 such election and at least eighteen years of age shall be eligible to 40 vote at such election for members of the board of education. 41 (2) Each candidate for member of the board of education of the city 42 school district of the city of Staten Island shall be required to file 43 petitions containing at least five hundred signatures. No petition shall 44 contain any political party or independent body name or label. Each 45 petition shall contain the name of only one candidate and such petition 46 shall be filed with the clerk of the board of elections of the county of 47 Richmond not earlier than the fifth Tuesday and not later than the 48 fourth Tuesday preceding the date on which an election shall be held. A 49 certificate of acceptance or declination of any individual so nominated 50 shall be filed not later than the third day after the fourth Tuesday 51 preceding the election. 52 d. No person shall be eligible for the office of member of such board 53 of education who is not a qualified voter under section 5-102 of the 54 election law of such city school district. No person shall hold at the 55 same time the office of member of the board of education and any other 56 elective office nor shall any holder of an elective office be a candi-S. 8474 67 1 date for the office of member of such board of education. No employee of 2 the city school district of the city of Staten Island shall be a member 3 of the board of education. 4 e. The term of office of each member of the board of education of the 5 city school district of the city of Staten Island shall be three years. 6 Voting will be by means of cumulative voting. Each voter may cast up to 7 nine votes for the candidate or candidates of his or her choice by cast- 8 ing all of his or her votes for a single candidate, by casting one vote 9 for each of nine candidates, or by allocating any combination of nine 10 whole votes among the candidates. The maximum number of votes each voter 11 may cast shall not exceed nine. Nothing in this paragraph requires that 12 a voter cast more than one vote for any one candidate. The nine candi- 13 dates receiving the greatest number of votes cast shall be elected. 14 f. (1) Such election for such office shall be governed by the 15 provisions of the election law in the same manner as candidates for 16 office generally to be elected by the voters of the city of Staten 17 Island except, as the case may be, as to the date of the election; and, 18 further provided, however, that each such candidate for election as a 19 member of such board of education shall be required to file a petition 20 containing signatures of at least five hundred voters of such city 21 school district. 22 (2) For the election held in May, in the year next succeeding the 23 date on which this subdivision shall have become a law, such petition 24 shall be deemed to be timely filed for such election if filed with the 25 clerk of the board of elections of Richmond county on or before April 26 ninth, in the year next succeeding the date on which this subdivision 27 shall have become a law. A petition sent by mail in an envelope post- 28 marked prior to midnight on April ninth, in the year next succeeding the 29 date on which this subdivision shall have become a law, shall be deemed 30 to be timely filed when received. Written objection to such petition 31 shall be filed within two days after the final date for filing of such 32 petition and specifications of the grounds of the objections shall be 33 filed with the board within one day after the filing of the objection 34 and institution of court proceedings relating thereto shall be commenced 35 not later than May second, in the year next succeeding the date on which 36 this subdivision shall have become a law. 37 g. Petitions for the nomination of members of such school board shall 38 be on white paper containing the required signatures of qualified voters 39 of the city of Staten Island. The sheets of such petition shall be 40 numbered consecutively, beginning with number one, at the foot of each 41 sheet. Such a petition must set forth in every instance the correct 42 date of signing, the full name of the signer and his or her present 43 residence. A signer need not himself or herself fill in the date or 44 residence. 45 h. Each sheet of such a petition shall be signed in ink and shall be 46 substantially in the following form: 47 I, the undersigned, do hereby state that I am a duly qualified voter 48 of the city of Staten Island, that my present place of residence is 49 truly stated opposite my signature hereto, I intend to support at the 50 ensuing election and I do hereby nominate the following named person as 51 a candidate for nomination (for the public office of member of the board 52 of education of the city school district of the city of Staten Island at 53 large..............day of....................,) (for the city school 54 district.............day of........,) 55 In witness whereof, I have hereunto set my hand the day and year 56 placed opposite my signature.S. 8474 68 1 Assembly Election 2 Date Name of Signer Present Residence District District 3 ....... ................ ............. ... ... 4 ....... ................ ............. ... ... 5 ....... ................ ............. ... ... 6 The petition shall be authenticated by witnesses. Such statement 7 shall be accepted for all purposes as the equivalent of an affidavit, 8 and if false shall subject the witness to the same penalties as if 9 he/she had been duly sworn. The form of such statement shall be 10 substantially as follows: 11 STATEMENT OF WITNESS 12 I,...................., (name of witness), state: I am a duly quali- 13 fied voter of the state of New York, and now reside in the city, town or 14 village of..............., in such state, at ................(fill in 15 street and house number and post office) therein. I know each of the 16 voters whose names are subscribed to this petition sheet containing 17 (fill in number).............signatures and each of them subscribed the 18 same in my presence and upon so subscribing declared to me that the 19 foregoing statement, made and subscribed by him/her, was true. 20 ..................... 21 Signature of witness 22 Date....... 23 i. The board of elections shall refuse to accept such petitions 24 signed by an insufficient number of qualified voters, or petitions which 25 are not timely or petitions bearing a political party or independent 26 body, name or emblem or which contain the name of more than one candi- 27 date. 28 j. Except as it may be modified by the provisions of paragraph f of 29 this subdivision, the provisions of the election law with respect to 30 acceptances by candidates nominated by independent nominating petitions 31 shall apply to candidates nominated by petitions for members of such 32 board of education. 33 k. Objections to petitions for the nomination of members of such 34 board of education and procedures and remedies applicable to such 35 objections shall be the same as those applicable to independent nominat- 36 ing petitions under the election law, except as it may be modified by 37 the provisions of paragraph d of this subdivision. 38 l. The board of elections shall cause to be printed official ballots 39 containing the names of all candidates as above provided, except that 40 the board may refuse to have the names of ineligible candidates placed 41 on such ballots. The names of the candidates shall be arranged accord- 42 ing to lot, and shall not bear the designation of any political party or 43 independent body, name or emblem. Blank spaces shall be provided so 44 that voters may vote for candidates who have not been nominated for the 45 offices to be filled at such elections. The form of such ballots shall 46 conform substantially to the form of ballots used at general elections 47 as prescribed in the election law. 48 m. Voting for the election of members of such board of education 49 shall be by voting machine, if practicable, and shall be governed by the 50 applicable provisions of the election law with respect to voting 51 machines. 52 n. If a candidate, after a petition in his or her behalf shall have 53 been duly filed with the clerk of the board of elections, and prior to 54 the date of the election, shall decline to accept the nomination, die,S. 8474 69 1 remove from the school district, accept or be a candidate for another 2 elective office, or become otherwise disqualified for such city school 3 district office, a further petition may be filed with such clerk, nomi- 4 nating another candidate in his or her place and stead. Such further 5 petition shall in all respects comply with the provisions of paragraphs 6 f, g and i of this subdivision, except that it may be filed at any time 7 up to and including the fifteenth day preceding the date of the election 8 pursuant to the provisions of this subdivision and the time within which 9 to accept or object to such further petition shall be computed from the 10 date of filing or said fifteenth day, whichever is earlier. 11 o. Whenever a vacancy shall occur or exist in the office of member of 12 the board of education except by reason of expiration of term or 13 increase in the number of members of such board, the candidate who has 14 received the next highest total number of votes in the preceding school 15 board election as certified by the board of elections shall be selected 16 to fill the vacancy. In the event that no candidate is available, then 17 the mayor of the city of Staten Island shall appoint a person to fill 18 the vacancy for the remainder of the unexpired term. 19 p. The members so elected to the board of education shall convene on 20 the first business day in July of each year at the time of the commence- 21 ment of their term of office and select from their members a president 22 who shall serve for a term of one year or such other term, not exceeding 23 the term of his or her office, as may be fixed by the rules and regu- 24 lations of the board. 25 q. The election of members of the board of education of the city 26 school district of the city of Staten Island shall take place on May 27 second, two thousand twenty-five and on the first Tuesday in May every 28 third year thereafter. Such election shall be conducted by the board of 29 elections of the county of Richmond in the same manner as general 30 elections are conducted by it. 31 r. Polls shall be open for voting for the hours prescribed by section 32 8-100 of the election law for primary elections. The results of such 33 elections, after canvassing, shall be certified and reported by the 34 board of elections to the city clerk and the board of education of such 35 city. 36 § 4-006. Subdivision 2 of section 2554 of the education law, as 37 amended by chapter 27 of the laws of 2012, is amended to read as 38 follows: 39 2. [To] Except as provided in subdivision one of section two thousand 40 five hundred seventy-three of this article, to create, abolish, maintain 41 and consolidate such positions, divisions, boards or bureaus as, in its 42 judgment, may be necessary for the proper and efficient administration 43 of its work; to appoint a superintendent of schools, such associate, 44 assistant, district and other superintendents, examiners, directors, 45 supervisors, principals, teachers, lecturers, special instructors, 46 medical inspectors, nurses, auditors, attendance officers, secretaries, 47 clerks, custodians, janitors and other employees and other persons or 48 experts in educational, social or recreational work or in the business 49 management or direction of its affairs as said board shall determine 50 necessary for the efficient management of the schools and other educa- 51 tional, social, recreational and business activities; provided, however, 52 that in the city school districts of the cities of Buffalo, Rochester, 53 and Syracuse appointment of associate, assistant and district super- 54 intendents, and other supervising staff who are excluded from the right 55 to bargain collectively pursuant to article fourteen of the civil 56 service law shall, within the amounts budgeted for such positions, be byS. 8474 70 1 the superintendent of such city school district; and to determine their 2 duties except as otherwise provided herein. 3 § 4-007. Subdivision 8 of section 2554 of the education law, as 4 amended by chapter 576 of the laws of 1964, is amended to read as 5 follows: 6 8. To dispose of, in the city of New York and the city of Staten 7 Island, to the best advantage of the city of New York or the city of 8 Staten Island, either by sale or on the basis of money allowance for 9 waste paper all books delivered to the several public schools of such 10 city that have been discarded either by reason of being obsolete, no 11 longer required by the course of study, worn by long usage or mutilated 12 by accident. If disposal is made by sale it shall be to the highest 13 bidder and the money realized shall be paid into the city treasury and 14 shall at once be appropriated by the city to the special school fund of 15 the board of education entitled "supplies". If disposal is made on the 16 basis of money allowance for waste paper, it shall be to the highest 17 bidder. Such discarded books may be disposed of without public adver- 18 tisement or entry into a formal contract. Should the discarded books be 19 in such condition that no sale or exchange can be made, or should there 20 be reason to believe that such discarded books have become infected 21 through disease among the pupils, or should the superintendent of 22 schools certify that such discarded books contain erroneous, inaccurate, 23 obsolete or antiquated subject matter, illustrations, maps, charts or 24 other material, the committee on supplies of the board of education, if 25 such books cannot be sold, given away or otherwise salvaged as waste 26 paper without danger to the public health, may authorize their 27 destruction by fire, in which event the superintendent of school 28 supplies shall obtain and file in his office a certificate that such 29 books have been so destroyed, signed by the principal of the school in 30 which the books are located. 31 § 4-008. Subdivision 14 of section 2554 of the education law, such 32 section as renumbered by chapter 762 of the laws of 1950, is amended to 33 read as follows: 34 14. To provide in the schools administered by the board of education 35 of the city of New York or the city of Staten Island, the proper book or 36 books, in form as required by the by-laws of the board of education of 37 such city, in which it shall cause the class teachers under the direc- 38 tion and supervision of the principal to enter the names, ages and resi- 39 dences of the pupils attending the school, the name of the parent or 40 guardian of each pupil and the days on which the pupils shall have 41 attended respectively, and the aggregate attendance of each pupil during 42 the year, and also the day upon which the school shall have been visited 43 by the superintendent of schools or by an associate superintendent of 44 schools or by an assistant superintendent, or by members of the board of 45 education, or by members of the local school board, or by any of them, 46 which entry shall be verified by such oath or affirmation of the princi- 47 pal as may be prescribed by the board of education of such city. Such 48 books shall be preserved as the property of such board of education and 49 shall at all times be open to inspection by members of such board of 50 education, by members of the local school boards and by the superinten- 51 dent of schools, or by any associate superintendent of schools, or by 52 the assistant superintendents. 53 § 4-009. Subdivision 15 of section 2554 of the education law is 54 amended by adding a new paragraph b-1 to read as follows: 55 b-1. In the city of Staten Island, the board of education shall make 56 rules and regulations for the conduct, operation and maintenance ofS. 8474 71 1 extra classroom activities and for the safeguarding, accounting and 2 audit of all moneys received and derived therefrom. In the case of any 3 extra classroom activity as it shall deem proper, and notwithstanding 4 the provisions of section twenty-five hundred thirty of this title, it 5 may direct that the moneys received or derived from the conduct, opera- 6 tion or maintenance of such an extra classroom activity be deposited 7 with the chief fiscal officer of the board of education, who in such 8 event shall be the treasurer of such an extra classroom activity, the 9 moneys of which are required to be so deposited. In the procurement of 10 articles and services for the conduct, operation and maintenance of a 11 cafeteria or restaurant service, the board of education shall be subject 12 to the provisions of subdivision ten of section twenty-five hundred 13 fifty-six of this article, except that said board of education need not 14 have duly advertised for estimates in order to contract for such arti- 15 cles or services in an amount exceeding one thousand dollars. In such 16 city, the board of education shall also have power to assign any of its 17 officers or employees to perform such duties as it may prescribe in 18 connection with an extra classroom activity and to designate such of its 19 officers and employees when so assigned from whom a bond shall be 20 required for faithful performance of their duties and to fix the sum in 21 which each such bond shall be given. 22 § 4-010. Section 2554 of the education law is amended by adding two 23 new subdivisions 29 and 30 to read as follows: 24 29. To assign, in its discretion, one or more employees of the board 25 in the city of Staten Island to serve as trial examiner with power to 26 conduct investigations and hearings on behalf of such board. Each trial 27 examiner shall report the result of any such investigation or hearing to 28 the board. 29 30. To employ a superintendent of the city of Staten Island school 30 district by contract for a four-year term of office, subject to removal 31 for cause, at a salary to be fixed within the budgetary allocation 32 therefor. 33 § 4-011. Subdivision 5 of section 2556 of the education law, as 34 amended by chapter 480 of the laws of 2014, is amended to read as 35 follows: 36 5. It shall be unlawful for a schoolhouse to be constructed in the 37 city of New York or the city of Staten Island without an open-air play- 38 ground attached to or used in connection with the same. Existing play- 39 grounds shall not be sold, leased or transferred, or permanently author- 40 ized for other uses such as school building construction, renovation, 41 placement or storage of building materials for such work that would 42 eliminate the use of such playground space for outdoor recreational 43 activities unless a plan is established and implemented to provide suit- 44 able and adequate physical activities or space to accommodate the phys- 45 ical and recreational needs of the pupils of such building. The 46 provisions of this subdivision shall not apply to school construction or 47 renovation activities that occur on or require the use of such play- 48 grounds for a duration of no more than one year. 49 § 4-012. Section 2556 of the education law is amended by adding a new 50 subdivision 6-a to read as follows: 51 6-a. After a site has been selected and plans and specifications for a 52 building thereon have been approved as provided herein, the board of 53 education of the city school district of the city of Staten Island may, 54 in its discretion, by regulation deliver such plans and specifications 55 to the common council or other local legislative body which may thereup- 56 on, in its discretion, award a contract for the erection of such build-S. 8474 72 1 ing in the same manner and in accordance with the provisions of law 2 regulating the awarding of contracts for the construction of municipal 3 buildings of such city. 4 § 4-013. Section 2556 of the education law is amended by adding three 5 new subdivisions 10-b, 11-a and 13-a to read as follows: 6 10-b. In the city of Staten Island if the several parts of the work or 7 labor to be done and/or the supplies, materials and equipment to be 8 furnished shall together involve an expenditure of not more than ten 9 thousand dollars, the same may be procured in compliance with the proce- 10 dures on contracting provided in chapter nine of the charter of the city 11 of Staten Island. 12 11-a. In all contracts by the board of education of the city school 13 district of the city of Staten Island, for the construction, repair, 14 alteration or remodeling of buildings or for the purchase of supplies, 15 furniture or equipment, a stipulation may be inserted for liquidated 16 damages for any breach, failure or delay in the performance thereof; and 17 such board of education is authorized and empowered to remit the whole 18 or any part of such damages as in its discretion may be just and equita- 19 ble; and in all suits commenced on any such contracts or on any bond 20 given in connection therewith it shall not be necessary for such board, 21 whether plaintiff or defendant, to prove actual or specific damages 22 sustained by reason of any such breach, failure or delay, but such stip- 23 ulation for liquidated damages shall be conclusive and binding upon all 24 parties. 25 13-a. The board of education of the city school district of the city 26 of Staten Island may through its duly designated officers, agents or 27 employees enter upon public or private property for the purpose of 28 making surveys, soundings or test borings necessary for the exercise of 29 the powers or the performance of the duties, of such board of education, 30 provided, however, that the mayor had formally approved the acquisition 31 of the real property as a school site. 32 § 4-014. The education law is amended by adding three new sections 33 2560-a, 2561-a, and 2562-a to read as follows: 34 § 2560-a. Liability of board of education of the city school district 35 of the city of Staten Island. 1. Notwithstanding any inconsistent 36 provision of law, general, special or local, or the limitation contained 37 in the provisions of any city charter, any duly appointed member of the 38 board of education of the city school district of the city of Staten 39 Island, the members of the school board of such city, the teaching or 40 supervising staff, officer, or employee of such board, member of a 41 committee on special education or subcommittee thereof or authorized 42 participant in the school volunteer program in such city shall be enti- 43 tled to legal representation and indemnification pursuant to the 44 provisions of, and subject to the conditions, procedures and limitations 45 contained in section fifty-k of the general municipal law, except that 46 any judgment or settlement pursuant to this section shall be payable 47 from the moneys of the board of education. 48 2. Notwithstanding any inconsistent provision of law, general, special 49 or local, or limitations contained in the provision of any city charter, 50 it shall not be within the power of the board of education of the city 51 of Staten Island to require a volunteer participating in any school 52 activities to execute a waiver of responsibility in favor of that board 53 as a condition, either express or implied, of such participation. Such 54 waiver would include, but not be limited to, a release of any party 55 against whom the volunteer may have rights under any existing provision 56 of law for personal injuries incurred during the performance of author-S. 8474 73 1 ized volunteer duties by an authorized participant in a school volunteer 2 program. 3 § 2561-a. Liability of certain officers and employees of the board of 4 education of the city school district of the city of Staten Island. If, 5 in order to furnish needy children or minors with food, shoes, clothing, 6 and other necessities to enable them to attend school as contemplated by 7 law and to benefit from instruction, such board of education shall have 8 required, imposed or permitted, the performance of duties by any of its 9 officers and employees, because of which it became necessary or expedi- 10 ent for any such officer or employee to act for such board of education, 11 or to act for or in cooperation with any other agency of government, 12 federal, state or municipal, then irrespective of the fact that the 13 authority to require, impose or permit the performance of such duties 14 may not have been specifically conferred upon said board of education by 15 provisions of this chapter, such board of education shall be liable for 16 and shall assume liability to the extent that it shall save harmless any 17 such officers or employees for damages arising out of the negligence of 18 any such officer or employee while actually engaged in the performance 19 of such required or permitted duties, provided the officer or employee 20 at the time was acting within the scope of his or her duties or employ- 21 ment. 22 § 2562-a. Presentation of claims against the board of education of 23 the city school district of the city of Staten Island to be pleaded. 1. 24 No action or special proceeding, for any cause whatever, shall be prose- 25 cuted or maintained against the board of education of the city school 26 district of the city of Staten Island, unless it shall appear by and as 27 an allegation in the complaint or necessary moving papers that at least 28 thirty days have elapsed since the demand, claim or claims upon which 29 such action or special proceeding is founded were presented to the said 30 board of education for adjustment, and that the officer or body having 31 the power to adjust or pay said claim has neglected or refused to make 32 an adjustment or payment thereof for thirty days after such presentment. 33 2. The said board of education may require any person presenting for 34 settlement an account or claim for any cause whatever against it to be 35 sworn before it or a committee thereof, or before the auditor, or before 36 any person designated by said board, touching such account or claim, and 37 when so sworn, to answer orally as to any facts relative to the justness 38 of such account or claim. A member of the board, the auditor, or any 39 other person designated as hereinbefore stated, shall have the power to 40 administer an oath to any person who shall give testimony to the just- 41 ness of such account or claim, and for the purpose of securing such 42 testimony may issue subpoenas for the attendance of witnesses. Wilful 43 false swearing before the said board of education, a committee thereof, 44 the auditor, or before any person designated as hereinbefore stated, is 45 perjury and punishable as such. 46 § 4-015. Section 2566 of the education law is amended by adding a new 47 subdivision 3-a to read as follows: 48 3-a. In the city of Staten Island, to exercise the administrative and 49 ministerial powers of the board of education. 50 § 4-016. The education law is amended by adding two new sections 51 2567-a and 2568-a to read as follows: 52 § 2567-a. Protection of rights exercised under licenses issued by a 53 board of education in the city of Staten Island. No person shall 54 forfeit any right given to him or her under a license issued by such 55 board of education, pursuant to this chapter, because of absence while 56 in service in the armed forces of the United States or in the service ofS. 8474 74 1 the American Red Cross. Any person may at any time within six months 2 after his or her discharge from service in the armed forces of the 3 United States or the American Red Cross make application to the license 4 issuing authority by affidavit setting forth that he or she has been in 5 service in the armed forces of the United States or the American Red 6 Cross and has been discharged from such service and that he or she 7 desires the license theretofore issued to him or to her to be reissued 8 as of the date of such application, and it shall be the duty of the 9 licensing authority to reinstate such license as of the date on which 10 application is made. 11 § 2568-a. Superintendent of schools authorized to require medical 12 examination of certain employees of the board of education of the city 13 school district of the city of Staten Island. The superintendent of 14 schools shall be empowered to require any person employed by the board 15 of education of the city school district of the city of Staten Island to 16 submit to a medical examination by a physician or school medical inspec- 17 tor of the board, in order to determine the mental or physical capacity 18 of such person to perform his or her duties, whenever it has been recom- 19 mended in a report in writing that such examination should be made. 20 Such report to the superintendent may be made only by a person under 21 whose supervision or direction the person recommended for such medical 22 examination is employed. The person required to submit to such medical 23 examination shall be entitled to be accompanied by a physician or other 24 person of his or her own choice. The findings upon such examination 25 shall be reported to the superintendent of schools and may be referred 26 to and considered for the evaluation of service of the person examined 27 or for disability retirement. 28 § 4-017. Subdivision 1 of section 2573 of the education law, as 29 amended by section 3 of subpart D of part EE of chapter 56 of the laws 30 of 2015, subparagraph ii of paragraph (a) as amended by chapter 201 of 31 the laws of 2022 and subparagraph ii of paragraph (b) as amended by 32 chapter 345 of the laws of 2019, is amended to read as follows: 33 1. (a) i. [Teachers] Except as otherwise provided for in paragraph (c) 34 of this subdivision, teachers and all other members of the teaching 35 staff, appointed prior to July first, two thousand fifteen and author- 36 ized by section twenty-five hundred fifty-four of this article, shall be 37 appointed by the board of education, upon the recommendation of the 38 superintendent of schools, for a probationary period of three years, 39 except that in the case of a teacher who has rendered satisfactory 40 service as a regular substitute for a period of two years or as a 41 seasonally licensed per session teacher of swimming in day schools who 42 has served in that capacity for a period of two years and has been 43 appointed to teach the same subject in day schools on an annual salary, 44 the probationary period shall be limited to one year; provided, however, 45 that in the case of a teacher who has been appointed on tenure in anoth- 46 er school district within the state, the school district where currently 47 employed, or a board of cooperative educational services, and who was 48 not dismissed from such district or board as a result of charges brought 49 pursuant to subdivision one of section three thousand twenty-a or 50 section three thousand twenty-b of this chapter, the probationary period 51 shall not exceed two years; provided, however, that in cities with a 52 population of one million or more, a teacher appointed under a newly 53 created license, for teachers of reading and of the emotionally hand- 54 icapped, to a position which the teacher has held for at least two years 55 prior to such appointment while serving on tenure in another license 56 area who was not dismissed as a result of charges brought pursuant toS. 8474 75 1 subdivision one of section three thousand twenty-a or section three 2 thousand twenty-b of this chapter, the probationary period shall be one 3 year. The service of a person appointed to any of such positions may be 4 discontinued at any time during such probationary period, on the recom- 5 mendation of the superintendent of schools, by a majority vote of the 6 board of education. Each person who is not to be recommended for 7 appointment on tenure shall be so notified by the superintendent of 8 schools in writing not later than sixty days immediately preceding the 9 expiration of his or her probationary period. In city school districts 10 having a population of four hundred thousand or more, persons with 11 licenses obtained as a result of examinations announced subsequent to 12 the twenty-second day of May, nineteen hundred sixty-nine appointed upon 13 conditions that all announced requirements for the position be fulfilled 14 within a specified period of time, shall not acquire tenure unless and 15 until such requirements have been completed within the time specified 16 for the fulfillment of such requirements, notwithstanding the expiration 17 of any probationary period. In all other city school districts subject 18 to the provisions of this article, failure to maintain certification as 19 required by this article and by the regulations of the commissioner 20 shall be cause for removal within the meaning of subdivision five of 21 this section. 22 ii. [Teachers] Except as otherwise provided for in paragraph (c) of 23 this subdivision, teachers and all other members of the teaching staff 24 appointed on or after July first, two thousand fifteen and authorized by 25 section twenty-five hundred fifty-four of this article, shall be 26 appointed by the board of education, upon the recommendation of the 27 superintendent of schools, for a probationary period of four years, 28 except that in the case of a teacher who has rendered satisfactory 29 service as a regular substitute for a period of two years and, if a 30 classroom teacher, has received annual professional performance review 31 ratings in each of those years, or has rendered satisfactory service as 32 a seasonally licensed per session teacher of swimming in day schools who 33 has served in that capacity for a period of two years and has been 34 appointed to teach the same subject in day schools on an annual salary, 35 the teacher shall be appointed for a probationary period of two years; 36 provided, however, that in the case of a teacher who has been appointed 37 on tenure in another school district within the state, the school 38 district where currently employed, or a board of cooperative educational 39 services, and who was not dismissed from such district or board as a 40 result of charges brought pursuant to subdivision one of section three 41 thousand twenty-a or section three thousand twenty-b of this chapter, 42 the teacher shall be appointed for a probationary period of three years; 43 provided that, in the case of a classroom teacher, the teacher demon- 44 strates that he or she received an annual professional performance 45 review rating pursuant to section three thousand twelve-c or section 46 three thousand twelve-d of this chapter in his or her final year of 47 service in such other school district or board of cooperative educa- 48 tional services; provided, however, that, in the case of a classroom 49 teacher who has been appointed for a probationary period during the two 50 thousand twenty--two thousand twenty-one, the two thousand twenty-one-- 51 two thousand twenty-two or the two thousand twenty-two--two thousand 52 twenty-three school year and who has been appointed on tenure in another 53 school district within the state, the school district where currently 54 employed, board of cooperative educational services or state school for 55 the blind or deaf, and who was not dismissed from such district, board 56 or state school for the blind or deaf as a result of charges broughtS. 8474 76 1 pursuant to section three thousand twenty-a or section three thousand 2 twenty-b of this chapter, such teacher shall be appointed for a proba- 3 tionary period of three years; provided that, in the case of a classroom 4 teacher, such teacher demonstrates that he or she received an annual 5 professional performance review rating pursuant to section three thou- 6 sand twelve-c or section three thousand twelve-d of this chapter in the 7 two thousand seventeen--two thousand eighteen or two thousand eighteen- 8 -two thousand nineteen school year in such other school district, board 9 of cooperative educational services or state school for the blind or 10 deaf; provided further, however, that in cities with a population of one 11 million or more, a teacher appointed under a newly created license, for 12 teachers of reading and of the emotionally handicapped, to a position 13 which the teacher has held for at least two years prior to such appoint- 14 ment while serving on tenure in another license area who was not 15 dismissed as a result of charges brought pursuant to subdivision one of 16 section three thousand twenty-a or section three thousand twenty-b of 17 this chapter, the teacher shall be appointed for a probationary period 18 of two years. The service of a person appointed to any of such posi- 19 tions may be discontinued at any time during such probationary period, 20 on the recommendation of the superintendent of schools, by a majority 21 vote of the board of education. Each person who is not to be recommended 22 for appointment on tenure shall be so notified by the superintendent of 23 schools in writing not later than sixty days immediately preceding the 24 expiration of his or her probationary period. In all city school 25 districts subject to the provisions of this article, failure to maintain 26 certification as required by this article and by the regulations of the 27 commissioner shall be cause for removal within the meaning of subdivi- 28 sion five of this section. 29 (b) i. [Administrators] Except as otherwise provided for in paragraph 30 (c) of this subdivision, administrators, directors, supervisors, princi- 31 pals and all other members of the supervising staff, except executive 32 directors, associate, assistant, district and community superintendents 33 and examiners, appointed prior to July first, two thousand fifteen and 34 authorized by section twenty-five hundred fifty-four of this article, 35 shall be appointed by the board of education, upon the recommendation of 36 the superintendent or chancellor of schools, for a probationary period 37 of three years. The service of a person appointed to any of such posi- 38 tions may be discontinued at any time during the probationary period on 39 the recommendation of the superintendent of schools, by a majority vote 40 of the board of education. 41 ii. [Administrators] Except as otherwise provided for in paragraph (c) 42 of this subdivision, administrators, directors, supervisors, principals 43 and all other members of the supervising staff, except executive direc- 44 tors, associate, assistant, district and community superintendents and 45 examiners, appointed on or after July first, two thousand fifteen and 46 authorized by section twenty-five hundred fifty-four of this article, 47 shall be appointed by the board of education, upon the recommendation of 48 the superintendent or chancellor of schools, for a probationary period 49 of four years provided that such probationary period may be extended in 50 accordance with paragraph (b) of subdivision five of this section; 51 provided, however, that in the case of a principal, administrator, 52 supervisor, or other member of the supervising staff who has been 53 appointed on tenure pursuant to this chapter as an administrator within 54 an authorized administrative tenure area in another school district 55 within the state, the school district where currently employed, or a 56 board of cooperative educational services, and who was not dismissedS. 8474 77 1 from such district or board as a result of charges brought pursuant to 2 subdivision one of section three thousand twenty-a or section three 3 thousand twenty-b of this chapter, the principal, administrator, super- 4 visor or other member of the supervising staff shall be appointed for a 5 probationary period of three years. The service of a person appointed to 6 any of such positions may be discontinued at any time during the proba- 7 tionary period on the recommendation of the superintendent of schools, 8 by a majority vote of the board of education. 9 (c) Notwithstanding the provisions of paragraphs (a) and (b) of this 10 subdivision, the superintendent of the city school district of the city 11 of Staten Island shall have the authority to appoint, with the approval 12 of the school board, principals and city wide administrators. Such 13 superintendent may appoint assistant principals and other clerical and 14 administrative staff without the approval of the school board. Such 15 assistant principals, clerical and administrative staff shall serve in 16 accordance with the provisions of paragraphs (a) and (b) of this subdi- 17 vision. 18 § 4-018. Section 2576 of the education law is amended by adding a new 19 subdivision 4-a to read as follows: 20 4-a. In the city of Staten Island such estimate shall be filed with 21 the officer authorized to receive other department estimates and the 22 same acted on by such officer and by the common council of such city in 23 the same manner and with the same effect as other department estimates. 24 The common council is also authorized, in its discretion, to include in 25 such budget a sum for any of the purposes enumerated in paragraph c of 26 subdivision one of this section, and any further amount for such 27 purposes as may be authorized by a tax election held in such city pursu- 28 ant to the provisions of this chapter. After the adoption of such budget 29 the common council shall cause the amount thereof to be included in the 30 tax and assessment roll of the city and the same shall be collected in 31 the same manner and at the same time as other taxes of the city are 32 collected, and placed to the credit of the board of education of the 33 city school district of such city. 34 § 4-019. Section 2579 of the education law is amended by adding a new 35 subdivision 4 to read as follows: 36 4. If the city of Staten Island shall issue obligations to defray, in 37 whole or in part, the expense of the construction, improvement and 38 equipment of school buildings or the purchase or acquisition of school 39 sites, the proceeds of the sale of such bonds shall be paid into the 40 treasury of the city and placed to the credit of the board of education 41 of the city school district of such city. As such obligations become 42 due the municipal authorities of the city shall include in the tax levy, 43 and assess upon the property of the city, the amount necessary to pay 44 such bonds and interest thereon. 45 § 4-020. Additional transitory provisions relating to the city school 46 district of the city of Staten Island. 1. The board of education of the 47 city school district of the city of Staten Island shall possess those 48 powers and duties as are authorized for a city school district pursuant 49 to article 52 of the education law, as amended by this act. In further- 50 ance of such powers and duties the board shall confer with the mayor, 51 the comptroller and the common council of the city of Staten Island and 52 the board of education of the preceding municipality for the purpose of 53 preparing for submission and implementation of a budget for the school 54 year commencing on the first of July in the second year next succeeding 55 the date on which this act shall have become a law and to take such 56 other actions as may be necessary and appropriate to provide for theS. 8474 78 1 operation of the city school district of the city of Staten Island on 2 and after the date of establishment of the city of Staten Island. 3 2. Fiscal and regulatory authority pertaining to the public schools to 4 be contained within the city school district of the city of Staten 5 Island shall remain with the board of education of the city school 6 district of the preceding municipality until the date of establishment 7 of the city of Staten Island. 8 3. All employees of the board of education of the city school district 9 of the preceding municipality and such other employees of any other 10 public entity as may be transferred pursuant to the provisions of this 11 act shall retain all rights, privileges, benefits and salaries to which 12 the employee was previously entitled as an employee of the board of 13 education of the preceding municipality. Transfers of employment to the 14 city school district of the city of Staten Island shall be conducted in 15 the same manner as is provided by for the city of Staten Island as 16 provided in this act. Such employees shall not suffer a loss of employ- 17 ment by reason of such transfer within a period of three years from the 18 effective date of such transfer nor shall any such employees be subject 19 to any additional employment probationary period by reason of such 20 transfer. 21 4. During the transition period as defined in section 1-003 of this 22 act, the city school district of the city of Staten Island may retain 23 the services of a superintendent of schools, a chief financial officer 24 and such other staff as to which funding shall have been provided by the 25 mayor and the common council of the city of Staten Island. 26 5. All actions deemed necessary and proper to implement the provisions 27 of sections 4-001 through 4-019 of this act are hereby authorized. 28 § 5-001. Transfer of the college of Staten Island. 1. The legislature 29 finds that due to the establishment of the city of Staten Island, the 30 transfer of the college of Staten Island from the city university of New 31 York to the state university of New York is a public purpose. Such 32 transfer shall not affect the title to the real property of the college 33 of Staten Island which shall continue to be held by the state of New 34 York, except that notwithstanding the provisions of paragraph b of 35 subdivision 1 of section 6219 of the education law if such real property 36 ceases to be used for college purposes, title to such property shall 37 revert to the city of Staten Island as successor in interest to the 38 prior municipal government of the geographical area of Staten Island. 39 The college of Staten Island is hereby transferred to the state univer- 40 sity of New York. Such transfers shall include all furnishings, equip- 41 ment, records and all other property normally allocated to the college 42 of Staten Island by the city university of New York. 43 2. The college of Staten Island is hereby transferred from the city 44 university of New York to the state university of New York. The college 45 of Staten Island shall continue to offer a full range of baccalaureate 46 degree programs and associate degree programs, selected masters degree 47 programs and provide faculty participation in research and doctoral 48 programs at the graduate center of the city university of New York. The 49 city of Staten Island shall serve as local sponsor for the two year 50 component of the college of Staten Island and such component shall be 51 subject to the provisions of section 6304 of the education law. Such two 52 year component shall be a part of the state university of New York and 53 shall not be governed by a community college board of trustees. 54 3. (a) Whenever the term "city university of New York" is referred to 55 or designated in any law, general, special or local, contract, lease, 56 judgment, decision or document pertaining to the functions, powers andS. 8474 79 1 duties relating to the college of Staten Island hereby continued in, 2 transferred and assigned to, or devolved upon, the state university of 3 New York, such reference or designation shall be deemed to refer to and 4 include the state university of New York, so far as such law, contract, 5 lease, judgment, decision or document pertains to matters which are 6 within its jurisdiction by reason of the redesignation, continuation, 7 transfer, assignment and devolution of functions, powers and duties made 8 by this act. 9 (b) All contracts, leases and other agreements entered into by the 10 city university of New York relating to the college of Staten Island 11 before the effective date of this section shall be conducted and 12 completed by the state university of New York in the same manner and 13 under the same terms and conditions and with the same effect as if the 14 same had been conducted and completed by the state university of New 15 York. In addition, any contracts, leases and other agreements entered 16 into by the state university of New York prior to the effective date of 17 this section shall remain in full force and effect and shall be 18 conducted and completed by the state university of New York. 19 (c) All rights, title and interest in personal property used for 20 educational or administrative purposes of the college of Staten Island 21 of the city university of New York vested in the city university of New 22 York on the effective date of this section are hereby transferred, 23 assigned and devolved upon the state university of New York. 24 (d) No existing right or remedy of any character shall be lost, 25 impaired or affected, nor shall any new right or remedy of any character 26 accrue to or for the benefit of any person by reason of the transfer of 27 the college of Staten Island pursuant to the provisions of this act. 28 (e) No action or proceeding based upon a cause of action which arose 29 prior to the effective date of this section brought by or against the 30 board of trustees of the city university of New York, the city universi- 31 ty construction fund, the board of trustees of the state university of 32 New York or the college of Staten Island shall be affected by any 33 provision of this act. 34 (f) Any lease entered into by the city university of New York for the 35 purposes of the college of Staten Island before the effective date of 36 this section is hereby transferred, assigned and devolved upon the state 37 university of New York, notwithstanding any provision that may be 38 contained therein providing for the nonassignability of such lease and 39 any such provision shall be deemed to be void as against the public 40 policy of the state and of no force and effect. 41 4. A council for the college of Staten Island is hereby established 42 pursuant to section 356 of the education law. It shall consist of ten 43 members, nine of whom shall be appointed by the governor and one of whom 44 shall be elected by and from among the students of the institution. Such 45 voting members shall be subject to every provision of any general, 46 special or local law, ordinance, charter, code, rule or regulation 47 applying to the voting members of such board with respect to the 48 discharge of their duties including, but not limited to those provisions 49 setting forth codes of ethics, disclosure requirements and prohibiting 50 business and professional activities. The election of the student member 51 shall be conducted in accordance with rules and regulations promulgated 52 by the respective representative campus student association in accord- 53 ance with guidelines established by the state university trustees. One 54 member shall be designated by the governor as chairman. Vacancies shall 55 be filled for the unexpired term in the same manner as original 56 selections. The term of office for each council member shall be sevenS. 8474 80 1 years. The term of office for the student member shall be one year. In 2 the event the student member ceases to be a student at the institution 3 such member shall be required to resign. Members appointed by the gover- 4 nor may be removed by the governor. Members elected by the students of 5 the institution may be removed by such students in accordance with rules 6 and regulations promulgated by the respective representative campus 7 student association in accordance with guidelines promulgated by the 8 state university trustees. Members of such council shall receive no 9 compensation for their services but shall be reimbursed for the expenses 10 actually and necessarily incurred by them in the performance of their 11 duties hereunder. 12 5. All employees of the college of Staten Island of the city universi- 13 ty of New York shall be transferred to employment in the state universi- 14 ty of New York and shall retain all rights, privileges, benefits and 15 salaries to which the employee was previously entitled as an employee of 16 the city university of New York. 17 Employees of the college of Staten Island of the city university of 18 New York transferred to employment in the state university of New York 19 pursuant to the provisions of this act shall not be involuntarily 20 assigned to work outside the geographical boundaries of the city of 21 Staten Island nor shall any such employees suffer a loss of employment 22 by reason of such transfer within a period of three years from the 23 effective date of such transfer nor shall any such employees be subject 24 to any additional employment probationary period by reason of their 25 transfer. 26 Employees transferred from the college of Staten Island of the city 27 university of New York to employment in the state university of New 28 York except for those designated managerial or confidential shall be 29 included in employer - employee negotiating units comparable to existing 30 units in the city university of the city of New York. With respect to 31 employees to be placed in such negotiating units, the public employee 32 organization recognized or certified to represent the employees in 33 comparable city university of the city of New York negotiating units 34 shall be recognized as the unit representative. 35 All rights, privileges and benefits provided by collectively bargained 36 agreements to employees of the city university of the city of New York 37 shall be continued for such employees transferred, reappointed or other- 38 wise employed until such time as successor collective bargaining agree- 39 ments are negotiated. 40 The state university of New York shall consult and bargain on all 41 terms and conditions of employment with the appropriate public employee 42 organization with respect to the establishment of any new titles which 43 are similar to or reasonably related to titles already represented by 44 such public employee organizations in the city university of the city of 45 New York. 46 Any such titles for which terms and conditions are bargained pursuant 47 to this subdivision shall be deemed to be successor titles within the 48 meaning of applicable law. So long as the responsibilities of employees 49 in these titles are reasonably related to the responsibilities of 50 employees currently represented by public employee organizations, such 51 titles shall be accredited or placed in a negotiating unit represented 52 by such public employee organizations. 53 If a dispute arises, the office of collective bargaining shall deter- 54 mine which public employee organization is appropriate to represent 55 transferees, other hires, or employees in a new title on the basis ofS. 8474 81 1 the title's community of interest with titles in the state university of 2 New York and the city university of the city of New York. 3 No existing right or remedy of any character shall be lost or impaired 4 or affected by reason of the adoption of this charter. 5 6. On and after the first of July in the second year next succeeding 6 the date on which this act shall have become a law, officers and employ- 7 ees who become employees of the state pursuant to this act shall become 8 members of the New York state employees' retirement system to the extent 9 permitted or required by the provisions of the retirement and social 10 security law, except that any employee who is a member of the New York 11 city employees' retirement system may elect to continue membership in 12 the New York city employees' retirement system. Any election pursuant to 13 this section shall be made no later than the one hundred twentieth day 14 after the effective date of this section, by filing a written notice 15 thereof with the administrative head of the New York state employees' 16 retirement system and the New York city employees' retirement system 17 and, once made and filed, shall be irrevocable. Upon the retirement of 18 an employee who has made such an election, the calculation of final 19 average salary by the New York city employees' retirement system shall 20 be performed as if the salary earned as a state employee on and after 21 such effective date were earned in New York city employment. In the case 22 of an employee who becomes a member of the New York state employees' 23 retirement system pursuant to this section, the New York city employees' 24 retirement system shall make a transfer of reserves, contributions and 25 credits to the New York state employees' retirement system, in the 26 manner required by section 43 of the retirement and social security law. 27 The comptroller of the city of New York shall certify to the state 28 administrator the amount of money required to be paid by the state of 29 New York for pension costs resulting from elections made pursuant to 30 this section. The comptroller of the state of New York shall pay to the 31 New York city employees' retirement system, upon approval by the state 32 administrator, the amounts so certified by the comptroller of the city 33 of New York. The comptroller of the city of New York shall also certify 34 to the state administrator the amount of money required to be contrib- 35 uted by each of such employees. The comptroller of the state of New 36 York shall be authorized to withhold the contributions of such employees 37 and pay that amount to the New York city employees' retirement system. 38 The amount so certified shall be the same as the amounts required to be 39 contributed for similarly situated city employees by the city of New 40 York and by employees of the city of New York. 41 § 5-002. Subdivision 3 of section 352 of the education law, as amended 42 by chapter 13 of the laws of 2021, is amended to read as follows: 43 3. The state university shall consist of the four university centers 44 at Albany, Binghamton, Buffalo and Stony Brook, the designated colleges 45 of arts and sciences at Brockport, Buffalo, Cortland, Fredonia, Geneseo, 46 New Paltz, Old Westbury, Oneonta, Oswego, Plattsburgh, Potsdam [and], 47 Purchase and Staten Island, empire state college, the agricultural and 48 technical colleges at Alfred, Canton, Cobleskill, Delhi, Farmingdale and 49 Morrisville, downstate medical center, upstate medical center, the 50 college of optometry, the college of environmental science and forestry, 51 maritime college, the college of technology at Utica/Rome, the statutory 52 or contract colleges at Cornell university and Alfred university, and 53 such additional universities, colleges and other institutions, facili- 54 ties and research centers as have been or hereafter may be acquired, 55 established, operated or contracted to be operated for the state by the 56 state university trustees.S. 8474 82 1 § 5-003. Paragraphs (f) and (g) of subdivision 2 and paragraph (d) of 2 subdivision 3 of section 6204 of the education law, paragraph (f) of 3 subdivision 2 as amended by chapter 306 and paragraph (g) of subdivision 4 2 as added by chapter 305 of the laws of 1979, and paragraph (d) of 5 subdivision 3 as amended by chapter 98 of the laws of 2010, are amended 6 to read as follows: 7 (f) The five trustees appointed by the mayor shall include at least 8 one resident of each of the [five] boroughs of the city of New York. 9 (g) The trustees appointed by the governor shall include at least one 10 resident of each of the [five] boroughs of the city of New York. 11 (d) (i) The board of trustees shall hold at least one public hearing 12 each year in each of the [five] boroughs of the city of New York. The 13 purpose of such hearing shall be to receive testimony and statements 14 from concerned individuals about university issues. 15 (ii) The board of trustees shall fix the time, place, duration and 16 format of each hearing. 17 (iii) At least thirty days notice of the hearing shall be given by the 18 chairperson of the board of trustees to all of the trustees, to all 19 presidents of educational units, to the chair of faculty-senate bodies 20 of educational units, to all student government presidents of educa- 21 tional units, to the borough president, the members of the city council, 22 the members of the board of estimate, the local community boards of the 23 borough where the hearing is to be held and to the media. The notice 24 shall contain the time, place and date of the public hearing. Such 25 information shall be made electronically available on the city universi- 26 ty of New York website. Any such meeting of the board of trustees shall 27 be conducted in accordance with article seven of the public officers 28 law. 29 (iv) At least three trustees shall attend each hearing. 30 § 6-001. The judiciary law is amended by adding a new article 5-C to 31 read as follows: 32 ARTICLE 5-C 33 INTERIM COURT STRUCTURE FOR THE CITY OF STATEN ISLAND 34 Section 178. Declaration of legislative findings and intent. 35 178-a. Continuation of court proceedings. 36 178-b. Judicial transition. 37 178-c. Judiciary jurisdiction. 38 178-d. Judiciary; family court. 39 178-e. Judiciary; criminal court. 40 178-f. Judiciary; civil court. 41 178-g. Judicial transition; structure. 42 178-h. Unified court system; services. 43 178-i. Judicial transition services. 44 178-j. Effect of existing collective bargaining agreements. 45 § 178. Declaration of legislative findings and intent. The interim 46 court structure established for the city of Staten Island by this arti- 47 cle is being enacted in the exercise of the legislature's constitutional 48 authority to provide for the creation and organization of units of local 49 government. The legislature finds that it is not possible to create, 50 fund and staff a new and jurisdictionally distinct court structure for 51 the city of Staten Island which would be fully operational on the effec- 52 tive date of such city's incorporation. The legislature also finds that 53 the creation of a jurisdictionally distinct court structure for the city 54 of Staten Island would likely disrupt the orderly administration of 55 justice in such city and the county of Richmond, unnecessarily inconven- 56 ience and confuse litigants, and increase significantly the cost ofS. 8474 83 1 conducting litigation within such city and county. The purpose of this 2 article is to prevent an interregnum in the operations of the unified 3 court system in connection with the incorporation of the city of Staten 4 Island and its organization as a functional unit of local government. By 5 establishing an interim court structure for such city, the legislature 6 intends to relieve taxpayers and litigants of the expense, inconven- 7 ience, confusion, and delay that would be occasioned by the creation of 8 a new court structure for such city. By preserving the existing trial 9 court structure in the county of Richmond during the period of govern- 10 mental reorganization following the incorporation of the city of Staten 11 Island, the legislature intends that all inhabitants of such county and 12 city will continue to possess the same rights and access to the unified 13 court system that they possessed immediately prior to the incorporation 14 of such city. 15 § 178-a. Continuation of court proceedings. The incorporation of the 16 city of Staten Island shall not alter the jurisdiction of any court 17 existing in the county of Richmond immediately prior to the effective 18 date of such city's incorporation. All courts in such county are contin- 19 ued, and no civil or criminal appeal, action or proceeding pending 20 before any court or any judge or justice on the effective date of incor- 21 poration shall abate or be impaired; and every such appeal, action or 22 proceeding shall be continued in the court in which such appeal, action 23 or proceeding was pending immediately prior to such effective date. 24 § 178-b. Judicial transition. There is established a judicial transi- 25 tion period for the city of Staten Island. Such period shall commence 26 on the effective date of such city's incorporation and terminate on 27 December thirty-first in the fifth year following such incorporation or 28 until the provisions of this article are specifically superseded by 29 state law. 30 § 178-c. Judiciary jurisdiction. During the judicial transition peri- 31 od: 32 (1) the county of Richmond shall be deemed to be a county within the 33 city of New York for all purposes of article six of the state constitu- 34 tion; 35 (2) the county of Richmond shall be deemed to be a county within the 36 city of New York for the purposes of section five hundred two of this 37 chapter; 38 (3) the city of Staten Island shall be deemed to be a part of the city 39 of New York for the purposes of section one hundred fifty-five and arti- 40 cles two-A and two-B of title two of the vehicle and traffic law; and 41 (4) the judge of the surrogate's court in the county of Richmond shall 42 be deemed to be a judge of a surrogate's court within the city of New 43 York for the purposes of subdivision c of section twelve of article six 44 of the state constitution. 45 § 178-d. Judiciary; family court. Notwithstanding section one hundred 46 twenty-one of the family court act, the county of Richmond shall be 47 deemed to be a county within the city of New York during the judicial 48 transition period, and there shall be no fewer than three judges of such 49 court who shall be residents of the county of Richmond. A vacancy occur- 50 ring in the office of any such judge during the judicial transition 51 period shall be filled by the mayor of the city of New York upon the 52 recommendation of the mayor of the city of Staten Island consistent with 53 the provisions of section two hundred sixteen-a of the family court act. 54 § 178-e. Judiciary; criminal court. Notwithstanding the provisions of 55 sections twenty and twenty-two of the New York city criminal court act, 56 the city of Staten Island shall be deemed to be part of the city of NewS. 8474 84 1 York during the judicial transition period, and there shall be no fewer 2 than three judges of such court who shall be residents of the city of 3 Staten Island. A vacancy occurring in the office of such judge during 4 the judicial transition period shall be filled by the mayor of the city 5 of New York upon the recommendation of the mayor of the city of Staten 6 Island consistent with the provisions of section twenty-two of the New 7 York city criminal court act. 8 § 178-f. Judiciary; civil court. Notwithstanding the provisions of 9 section one hundred two-a of the New York city civil court act, the city 10 of Staten Island shall be deemed to be part of the city of New York 11 during the judicial transition period, and there shall be no fewer than 12 three judges of such court who shall be residents of the city of Staten 13 Island. A vacancy occurring in the office of such judge otherwise than 14 by expiration of term during the judicial transition period shall be 15 filled by the mayor of the city of New York upon the recommendation of 16 the mayor of the city of Staten Island consistent with the provisions of 17 section one hundred two-a of the New York city civil court act. 18 § 178-g. Judicial transition; structure. The mayor and the common 19 council of the city of Staten Island, in consultation with the chief 20 administrator of the courts, shall develop a plan for an appropriate 21 court structure for the city of Staten Island following the judicial 22 transition period. Such plan shall include recommendations for the 23 jurisdiction of each court, the number of judges needed, a personnel 24 structure for nonjudicial officers and employees, necessary physical 25 facilities, and a fiscal analysis of each component of the plan. Such 26 plan shall be submitted to the governor, the legislature and to the 27 chief judge of the state, no later than three years following commence- 28 ment of the judicial transition period. 29 § 178-h. Unified court system; services. The chief administrator of 30 the courts is authorized to do all things necessary to continue the 31 efficient operation of the unified court system within the county of 32 Richmond and the city of Staten Island during and after the judicial 33 transition period. 34 § 178-i. Judicial transition services. During the judicial transition 35 period, the mayor and the comptroller of the city of Staten Island and 36 the mayor and the comptroller of the city of New York are authorized to 37 enter into agreements relating to the provision of municipal services 38 for the courts within the city of Staten Island. Such municipal services 39 may include, but shall not be limited to, correctional services. 40 § 178-j. Effect of existing collective bargaining agreements. 41 Notwithstanding any other provision of law: 42 (1) The provisions of this article shall not alter any existing 43 collective negotiating unit of nonjudicial employees or any provision of 44 a collective negotiating agreement in effect on the effective date of 45 this article. 46 (2) To the extent permitted by the state constitution, where a judi- 47 cial or nonjudicial officer or employee of the unified court system is 48 required as a condition of his or her continued employment to reside in 49 the city of New York and, on the effective date of this article, he or 50 she resides in the county of Richmond, such officer or employee shall be 51 deemed to reside in the city of New York for so long as he or she 52 remains in his or her position, provided he or she continues to reside 53 in the county or in the city of New York. 54 (3) The nonjudicial personnel of the courts affected by this article 55 in office on the effective date of this article shall, to the extent 56 practicable, be continued without diminution of salaries and with theS. 8474 85 1 same status and rights in the courts continued in the county of Rich- 2 mond. 3 § 7-001. Section 31 of the public housing law, as amended by chapter 4 829 of the laws of 1947, is amended to read as follows: 5 § 31. Scope of authority's jurisdiction. The territorial jurisdic- 6 tion of an authority established for a city or village shall be cotermi- 7 nous with the territorial limits of such city or village, and the terri- 8 torial jurisdiction of an authority established for a town shall include 9 all such town, except that such territorial jurisdiction shall not 10 include any territory that lies within the boundaries of any village, 11 whether such village has or has not established an authority. The 12 members of such town authority shall if they consent and when authorized 13 by resolutions of the town board and the village board, act as the 14 authority in and for said village, the same as if it had been created 15 especially for said village. 16 The foregoing notwithstanding, the New York city housing authority, 17 the creation and establishment of which was validated pursuant to 18 section four hundred of this chapter, shall continue to have territorial 19 jurisdiction for the five counties which had constituted parts of the 20 city of New York prior to the establishment of the city of Staten 21 Island. 22 § 7-002. Subdivision 3 of section 402 of the public housing law, as 23 added by chapter 96 of the laws of 2013, is amended to read as follows: 24 3. a. The authority shall consist of seven members appointed by the 25 mayor, one of whom shall be designated by the mayor as [chairman] chair- 26 person removable at his or her pleasure. The term of office of each 27 member other than the [chairman] chairperson shall be three years, 28 provided, however, that the initial appointments of the six members 29 other than the [chairman] chairperson shall be as follows: two shall be 30 appointed for one-year terms, two shall be appointed for two-year terms, 31 and two shall be appointed for three-year terms. The mayor shall file 32 with the commissioner of housing a certificate of appointment of the 33 [chairman] chairperson and of each member. Any member other than the 34 [chairman] chairperson may be removed by the mayor upon filing in the 35 office of the commissioner of citywide administrative services and serv- 36 ing upon the member the reasons therefor. Such document setting forth 37 the reasons shall be made available to the general public, which shall 38 include but not be limited to publishing the reasons on the New York 39 city housing authority's website. Three of such members shall be a 40 tenant of record or an authorized member of the tenant household, in 41 good standing, residing in one of the federal projects owned or operated 42 by the authority, provided, however, that for the initial appointments 43 of the three such members, one shall be among the members initially 44 appointed for one-year terms, one shall be among the members initially 45 appointed for two-year terms, and one shall be among the members 46 initially appointed for three-year terms. A vacancy in the office of a 47 member other than the [chairman] chairperson occurring otherwise than by 48 expiration of term shall be filled for the unexpired term. Further, any 49 vacancy in the office of a tenant member shall only be filled by the 50 appointment of an eligible tenant member, and such appointment shall be 51 made within ninety days of such vacancy. 52 b. Notwithstanding paragraph a of this subdivision, upon the estab- 53 lishment of a city of Staten Island and for so long as the New York city 54 housing authority shall have territorial jurisdiction in the city of 55 Staten Island, such authority shall consist of eight members, the eighth 56 of whom shall be appointed by the mayor of Staten Island and shall serveS. 8474 86 1 for a five-year term. The mayor of the city of Staten Island shall file 2 with the commissioner of housing and the chairperson of the New York 3 city housing authority a certificate of appointment of such member. Such 4 member may be removed by the mayor of Staten Island for cause after a 5 public hearing. Such member may be of any political party. A vacancy in 6 the office of such member occurring other than by expiration of a term 7 shall be filled for the unexpired term. 8 § 7-003. Section 455 of the education law, as amended by chapter 724 9 of the laws of 1976, is amended to read as follows: 10 § 455. Relationship with the board of education and the city of New 11 York. 1. In order most effectively to carry out its corporate purposes, 12 the fund shall cooperate with the director of management and budget and 13 the board of education of the city of New York in matters relating to 14 land acquisition and capital planning for school buildings and facili- 15 ties. During the course of construction, reconstruction, rehabilitation 16 and improvement of combined occupancy structures the fund shall consult 17 with personnel of such board as the work progresses in matters relating 18 to space requirements, site plans, architectural concept, and substan- 19 tial changes in the plans and specifications therefor, and in matters 20 relating to the original furnishings, equipment, machinery and apparatus 21 needed to furnish and equip the school portion of such buildings and 22 structures, upon the completion of work. The board, on its part, shall 23 perform such functions and services for the fund as may be requested and 24 the fund shall pay to the board, from any monies of the fund available 25 for such purpose, the reasonable cost of such functions and services. 26 2. Notwithstanding subdivision one of this section, upon the estab- 27 lishment of a city of Staten Island, with respect to any fund activities 28 to take place within such city of Staten Island, the fund shall cooper- 29 ate with the mayor and comptroller of such city of Staten Island and the 30 board of education of the city school district of the city of Staten 31 Island in matters relating to land acquisition and capital planning for 32 school buildings and facilities to the same extent as with the respec- 33 tive officials of the city of New York. 34 § 7-004. Paragraph (c) of subdivision 1 of section 462 of the educa- 35 tion law, as separately amended by chapters 724 and 729 of the laws of 36 1976, is amended to read as follows: 37 (c) (i) To assure the continued operation and solvency of the capital 38 reserve fund for the carrying out of the public purposes of this arti- 39 cle, provision is made in paragraph (a) of this subdivision for the 40 accumulation in the capital reserve fund of an amount equal to the maxi- 41 mum amount of principal and interest maturing and becoming due and sink- 42 ing fund payments required to be made in any succeeding fiscal year on 43 all bonds of the fund then outstanding secured by the capital reserve 44 fund. In order further to assure such maintenance of the capital 45 reserve fund, the board of education shall annually request from the 46 city of New York and pay over to the fund, for deposit in the capital 47 reserve fund, such sum, if any, as shall be certified by the [chairman] 48 chairperson of the fund to the board, the mayor and the director of 49 management and budget of the city of New York as necessary to restore 50 the capital reserve fund to an amount equal to the maximum amount of 51 principal and interest maturing and becoming due and sinking fund 52 payments required to be made in the next succeeding fiscal year on the 53 bonds of the fund then outstanding secured by the capital reserve fund; 54 provided, however, that such sum shall have been first appropriated by 55 the city to the board or shall otherwise have been made lawfully avail- 56 able to the board for such purpose. The [chairman] chairperson of theS. 8474 87 1 fund shall annually, not later than the fifteenth day of February in 2 each year, make and deliver to the board, the mayor and the director of 3 management and budget his or her certificate stating the amount, if any, 4 required to restore the capital reserve fund to the amount aforesaid and 5 the amount so stated, if any, shall be paid to the fund by the board 6 during the then current fiscal year of the fund. In the event of the 7 failure or inability of the board to pay over the stated amount to the 8 fund on or before August first of the same year, the [chairman] chair- 9 person of the fund shall forthwith make and deliver to the comptroller 10 of the state of New York and the mayor and comptroller of the city of 11 Staten Island a further certificate restating the amount so required 12 and, after the comptroller of the state of New York shall have given 13 written notice to the commissioner of education, the mayor and director 14 of management and budget and the mayor and comptroller of the city of 15 Staten Island, such amount shall be paid over to the fund by the comp- 16 troller of the state of New York out of the next payment of state aid 17 apportioned, first, to the city of New York on behalf of the city school 18 district of the city of New York for the support of common schools or 19 such other aid or assistance payable in support of common schools as 20 shall supersede or supplement such state aid for the support of common 21 schools, including federal moneys apportioned by the state to the city 22 of New York on behalf of the city school district for the support of 23 common schools and, thereafter, if such amounts are insufficient, from 24 such similar aid payable to the city of Staten Island. Any amount so 25 paid over to the fund shall be deducted from the corresponding appor- 26 tionment of state education aid or other aid or assistance for education 27 otherwise credited to the board of education for its purposes and shall 28 not obligate the state to make or entitle the city or the board of 29 education or city of Staten Island to receive any additional or 30 increased apportionment or payment of state aid for school purposes. 31 (ii) Notwithstanding subparagraph (i) of this paragraph, on or after 32 the first of January next succeeding the date on which this subparagraph 33 shall have become a law, the fund shall not issue any bonds, notes or 34 other obligations secured by a capital reserve fund into which state aid 35 or other aid otherwise payable to the city of Staten Island is to be 36 deposited pursuant to this paragraph, provided, however, the fund may 37 issue refunding bonds to pay bonds previously issued, which refunding 38 bonds may be so secured if the fund gives reasonable adequate notice of 39 its intention to issue such refunding bonds to the mayor of the city of 40 Staten Island and the comptroller of the city of Staten Island and both 41 such officials are given a reasonable opportunity to participate at the 42 meeting or meetings of the board of the fund at which action is taken to 43 issue such refunding bonds. 44 § 7-005. Paragraph (c) of subdivision 3 of section 462 of the educa- 45 tion law, as amended by chapter 474 of the laws of 1996, is amended to 46 read as follows: 47 (c) (i) To assure the continued operation and solvency of the fund for 48 the carrying out of the public purposes of this article, provision is 49 made in paragraph (a) of this subdivision for the accumulation in a debt 50 service reserve fund of an amount equal to the debt service reserve fund 51 requirement on all bonds of the fund then outstanding secured by a debt 52 service or debt service reserve fund. In order further to assure such 53 maintenance of a debt service reserve fund, the board of education shall 54 annually request from the city of New York and pay over to the fund 55 after making the payment required by paragraph (c) of subdivision one of 56 this section for deposit in a debt service reserve fund, such sum, ifS. 8474 88 1 any, as shall be certified by the [chairman] chairperson of the fund to 2 the board, the mayor and the director of the budget of the city of New 3 York as necessary to restore such debt service reserve fund to an amount 4 equal to the debt service reserve fund requirement for the bonds of the 5 fund secured by such debt service reserve fund; provided, however, that 6 such sum shall have been first appropriated by the city to the board or 7 shall otherwise have been made lawfully available to the board for such 8 purpose. The [chairman] chairperson of the fund shall annually, not 9 later than the fifteenth day of February in each year, make and deliver 10 to the board, the mayor and the director of the budget his or her 11 certificate stating the amount, if any, required to restore a debt 12 service reserve fund to the amount aforesaid and the amount so stated 13 after making the payment required by paragraph (c) of subdivision one of 14 this section if any, shall be paid to the fund by the board during the 15 then current fiscal year of the fund. In the event of the failure or 16 inability of the board to pay over the stated amount to the fund on or 17 before August first of the same year, the [chairman] chairperson of the 18 fund shall forthwith make and deliver to the comptroller of the state of 19 New York and the mayor and comptroller of the city of Staten Island a 20 further certificate restating the amount so required and, after the 21 comptroller of the state of New York shall have given written notice to 22 the commissioner, the mayor and director of the budget and the mayor and 23 comptroller of the city of Staten Island, such amount after making the 24 payment required by paragraph (c) of subdivision one of this section 25 shall be paid over to the fund by the comptroller of the state of New 26 York out of the next payment of state aid apportioned, first, to the 27 city of New York on behalf of the city school district of the city of 28 New York for the support of common schools or such other aid or assist- 29 ance payable in support of common schools as shall supercede or supple- 30 ment such state aid for the support of common schools, including federal 31 moneys apportioned by the state to the city of New York on behalf of the 32 city school district for the support of common schools and, thereafter, 33 if such amounts are insufficient, from such similar aid payable to the 34 city of Staten Island. Any amount so paid over to the fund under para- 35 graph (c) of subdivision one of this section shall be deducted from the 36 corresponding apportionment of state education aid or other aid or 37 assistance for education otherwise credited to the board of education or 38 the city of Staten Island for its purposes and shall not obligate the 39 state to make or entitle the city or the board of education or the city 40 of Staten Island to receive any additional or increased apportionment or 41 payment of state aid for school purposes. 42 (ii) Notwithstanding subparagraph (i) of this paragraph, on or after 43 the first of January next succeeding the date on which this subparagraph 44 shall have become a law, the fund shall not issue any bonds, notes or 45 other obligations secured by a debt service reserve fund into which 46 state aid or other aid otherwise payable to the city of Staten Island is 47 to be deposited pursuant to this paragraph, provided, however, the fund 48 may issue refunding bonds to pay bonds previously issued, which refund- 49 ing bonds may be so secured if the fund gives reasonable adequate notice 50 of its intention to issue such refunding bonds to the mayor of the city 51 of Staten Island and the comptroller of the city of Staten Island and 52 both such officials are given a reasonable opportunity to participate at 53 the meeting or meetings of the board of the fund at which action is 54 taken to issue such refunding bonds.S. 8474 89 1 § 7-006. Subdivision 1 of section 1045-c of the public authorities 2 law, as added by chapter 513 of the laws of 1984, is amended to read as 3 follows: 4 1. A corporation known as the New York city municipal water finance 5 authority is hereby created for public purposes and charged with the 6 duties and having the powers provided in this title. The authority shall 7 be a body corporate and politic constituting a public benefit corpo- 8 ration. It shall be administered by a board of directors consisting of 9 [seven] eight members as follows: the commissioner of environmental 10 protection of the city, the state commissioner of environmental conser- 11 vation, the director of management and budget of the city, the commis- 12 sioner of finance of the city, two public members to be appointed by the 13 mayor, one public member to be appointed by the mayor of Staten Island 14 and one public member to be appointed by the governor. One public 15 member appointed by the mayor shall serve for a term of one year, one 16 public member appointed by the mayor shall serve for a term of two 17 years, and the public [member] members appointed by the governor and 18 mayor of Staten Island shall serve for a term of two years from January 19 first next succeeding the date of their appointment. Their successors 20 shall serve for terms of two years each. Members shall continue in 21 office until their successors have been appointed and qualified. The 22 mayor, mayor of Staten Island or the governor shall fill any vacancy 23 which may occur by reason of death, resignation or otherwise in a manner 24 consistent with the original appointment. A public member may be 25 removed by the mayor, mayor of Staten Island, or the governor, whichever 26 appointed him or her, for cause, but not without an opportunity to be 27 heard in person or by counsel, in his or her defense, upon not less than 28 ten days' notice. The mayor shall select a [chairman] chairperson from 29 among the directors appointed by him or her who shall serve in such 30 capacity at his or her pleasure. The [chairman] chairperson shall 31 preside over all meetings of the board of directors and shall have such 32 other duties as may be prescribed by the board. 33 § 7-007. Subdivision 2 of section 1045-f of the public authorities 34 law, as added by chapter 513 of the laws of 1984, is amended to read as 35 follows: 36 2. The water board shall consist of seven members, six of which shall 37 be appointed by the mayor and, the seventh of which shall be appointed 38 by the mayor of Staten Island. The mayor of Staten Island shall fill 39 the earlier of the first expiration of a term or the first vacancy 40 occurring after the date of establishment of the city of Staten Island 41 and any successor thereto. Terms of office of the members shall be two 42 years except that the terms of four of the board members first appointed 43 shall be one year. At least one member shall have experience in the 44 science of water resource development. No member shall be a director of 45 the authority. The mayor shall appoint a [chairman] chairperson from 46 among the members of the board. All members shall continue to hold 47 office until their successors are appointed and qualified. Vacancies 48 shall be filled in the manner provided for original appointments. Vacan- 49 cies, occurring otherwise than by expiration of term of office, shall be 50 filled in the same manner as original appointments for the unexpired 51 terms. 52 § 7-008. Subdivision 5 of section 1045-f of the public authorities 53 law, as added by chapter 513 of the laws of 1984, is amended to read as 54 follows: 55 5. The appointing mayor may remove any member for inefficiency, 56 neglect of duty or misconduct in office after giving such member a copyS. 8474 90 1 of the charges against such member and an opportunity to be heard and 2 defended, in person or by counsel, upon not less than ten days' notice. 3 If any member shall be so removed, the appointing mayor shall file in 4 the office of the clerk of the city a complete statement of charges 5 against such member, and the appointing mayor's findings thereon, 6 together with a complete record of the proceedings. 7 § 7-009. Paragraphs e and f of subdivision 1 of section 656 of the 8 private housing finance law, as amended by chapter 174 of the laws of 9 1992, are amended to read as follows: 10 e. (i) To assure the continued operation and solvency of the corpo- 11 ration for the carrying out of its corporate purposes, provision is made 12 in paragraph a of this subdivision for the accumulation in each capital 13 reserve fund of an amount equal to the maximum capital reserve fund 14 requirement. In order further to assure such maintenance of each capital 15 reserve fund, there shall be paid by the city to the corporation for 16 deposit in each capital reserve fund on or before the first day of 17 April, in each year, such amount, if any, needed for the purpose of 18 restoring each such capital reserve fund to the maximum capital reserve 19 fund requirement for such fund, as shall be certified by the chairperson 20 of the corporation to the mayor and the director of management and budg- 21 et on or before the first day of December next preceding; provided that 22 any such amount shall have been first appropriated by or on behalf of 23 the city for such purpose or shall have been otherwise made available 24 from the proceeds of notes or bonds of the city authorized and issued 25 pursuant to the local finance law for such purpose, which is hereby 26 determined to be a specific object or purpose having a period of proba- 27 ble usefulness of five years. In the event of the failure or inability 28 of the city to pay over to the corporation, in full, on or before such 29 first day of April the amount so certified the chairperson of the corpo- 30 ration shall forthwith certify to the comptroller of the state of New 31 York the amount remaining unpaid and thereupon the state comptroller 32 shall pay to the corporation, out of the first moneys available for the 33 next succeeding payments of [(i)] (A) state aid apportioned to the city 34 of New York and, to the extent the amounts available therefor are insuf- 35 ficient, state aid apportioned to the city of Staten Island, as per 36 capita aid for the support of local government pursuant to section 37 fifty-four of the state finance law or [(ii)] (B) such other aid or 38 assistance payable by the state to the city and to the extent the 39 amounts available therefor are insufficient, such aid or assistance 40 payable by the state to the city of Staten Island and not otherwise 41 allocated as shall supersede or supplement such state per capita aid, 42 including federal moneys apportioned to the city and, to the extent the 43 amounts available therefor are insufficient, such moneys apportioned to 44 the city of Staten Island by the state, such amount remaining unpaid, 45 after giving written notice to the director of management and budget of 46 each amount to be paid out of such state aid, until the amount in each 47 such capital reserve fund is restored to the maximum capital reserve 48 fund requirement thereof; provided, however, that prior to the issuance 49 of any notes or bonds of the corporation pursuant to this article the 50 city shall have enacted a local law authorizing payments from such 51 sources into such a fund so long as any notes or bonds of the corpo- 52 ration shall be outstanding and unpaid, and provided further that 53 moneys, if any, payable to the city university construction fund pursu- 54 ant to the provisions of the city university construction fund act shall 55 be paid, in full, to such fund, prior to any payments therefrom to the 56 corporation. Any amount so paid over to the corporation shall beS. 8474 91 1 deducted from the corresponding apportionment of such per capita state 2 aid otherwise payable to the city of New York or the city of Staten 3 Island, as applicable, and shall not obligate the state to make nor 4 entitle the city or the city of Staten Island to receive any additional 5 apportionment or payment of per capita state aid. All amounts paid over 6 to the corporation as provided in this [paragraph] subparagraph, includ- 7 ing amounts paid by the state comptroller out of payments of such state 8 aid, shall constitute and be accounted for as non-interest bearing loans 9 by the city or the city of Staten Island, as applicable to the corpo- 10 ration and, subject, subordinate and junior to the rights of the holders 11 of any notes or bonds of the corporation theretofore or thereafter 12 issued, shall be repaid to the city from [(i)] (A) moneys in such capi- 13 tal reserve fund in excess of the maximum capital reserve fund require- 14 ment thereof or [(ii)] (B) any moneys of the corporation not required 15 for any other of its corporate purposes. 16 (ii) Notwithstanding subparagraph (i) of this paragraph, on or after 17 the first of January next succeeding the date on which this subparagraph 18 shall have become a law, the corporation shall not issue any bonds, 19 notes or other obligations secured by a capital reserve fund into which 20 per capita state aid or other aid otherwise payable to the city of 21 Staten Island is to be deposited pursuant to this subparagraph, 22 provided, however, the corporation may issue refunding bonds to pay 23 bonds previously issued, which refunding bonds may be so secured if the 24 corporation gives reasonable adequate notice of its intention to issue 25 such refunding bonds to the mayor of the city of Staten Island and the 26 comptroller of the city of Staten Island and both such officials are 27 given a reasonable opportunity to participate at the meeting or meetings 28 of the board of the corporation at which action is taken to issue such 29 refunding bonds. 30 f. In the event the chairperson of the corporation shall certify to 31 the mayor and director of management and budget or to the state comp- 32 troller any amount necessary to restore a capital reserve fund to the 33 maximum capital reserve fund requirement thereof pursuant to subdivision 34 e of this section, the chairperson shall simultaneously deliver to the 35 mayor of the city of Staten Island and the comptroller of the city of 36 Staten Island and additionally to such persons a statement of the cause 37 or causes of such capital reserve fund deficiency and the measures to be 38 taken by the corporation or the department of housing preservation and 39 development to insure repayment of any loans made by the city or the 40 city of Staten Island to the corporation, including amounts paid by the 41 state comptroller out of payments of state aid, for the purpose of 42 restoring such capital reserve fund to the maximum capital reserve fund 43 requirement thereof and to prevent the recurrence of any such deficien- 44 cy. 45 § 7-010. Subdivision 4 of section 1680-b of the public authorities 46 law, as amended by chapter 62 of the laws of 1988, is amended to read as 47 follows: 48 4. In the event that a participating municipality fails to pay to the 49 authority when due all or part of the rentals and other payments payable 50 pursuant to any lease, sublease or agreement with the authority, the 51 chairman or another officer of the authority shall certify at the times 52 provided in this subdivision the amount of rentals and other payments 53 then due from such participating municipality and unpaid. The state 54 comptroller, upon receipt of such certificate, shall deduct the amount 55 of such rentals and other payments as remains unpaid to the authority 56 first from the aid payable to such participating municipality from theS. 8474 92 1 court facilities incentive aid fund established by section ninety-four 2 of the state finance law and, then, from the next succeeding payments of 3 state aid apportioned to such participating municipality, as revenue 4 sharing, per capita aid, and any other aid pursuant to section fifty- 5 four of the state finance law and, then, from the next succeeding 6 payments of state aid for any local governmental administrative costs 7 that are reimbursable to the participating municipality pursuant to 8 state law and, then, from the next succeeding payments of state aid from 9 moneys appropriated pursuant to section six hundred eight of the public 10 health law and pursuant to section ten-c of the highway law; provided, 11 however, that the right of the authority to the payment of any amount 12 deducted by the state comptroller pursuant to this section from per 13 capita aid apportioned to the city of New York or, to the extent insuf- 14 ficient, the city of Staten Island shall be subject and subordinate to 15 the rights of the city university construction fund pursuant to section 16 sixty-two hundred seventy-nine of the education law, the New York city 17 housing development corporation pursuant to section six hundred fifty- 18 six of the private housing finance law, the trustees of the police 19 pension fund pursuant to paragraph e of subdivision seven of section 20 fifty-four of the state finance law, and the municipal assistance corpo- 21 ration for the city of New York pursuant to section three thousand thir- 22 ty-six-a of this chapter and subdivision one of section ninety-two-e of 23 the state finance law. In order to insure that the amount of rentals 24 and other payments due and unpaid by a participating municipality are 25 paid, the authority on or within thirty days prior to January twenty- 26 fifth, April twenty-fifth, July twenty-fifth and October twenty-fifth of 27 each year shall certify to the state comptroller the amount of rentals 28 and other payments then due and unpaid by each participating munici- 29 pality pursuant to any lease, sublease or other agreement. The amount 30 required to be deducted by the state comptroller pursuant to this subdi- 31 vision shall be deducted from such aid, whether or not the state aid 32 from which such deduction is to be made is then payable to the partic- 33 ipating municipality, and thereupon paid to the authority. The amount of 34 state aid payable to such participating municipality shall be reduced by 35 the amount deducted by the state comptroller notwithstanding the amount 36 appropriated and apportioned by the state to such participating munici- 37 pality, and the state shall not be obligated to make and the participat- 38 ing municipality shall not be entitled to receive any additional appor- 39 tionment or payment of such state aid. Nothing shall be construed to 40 create an obligation upon the state to appropriate moneys, to preclude 41 the state from reducing the amount of moneys appropriated or level of 42 assistance provided, or to preclude the state from altering or modifying 43 the manner in which it provides for or provides assistance. 44 § 7-011. Section 1727 of the public authorities law is amended by 45 adding a new subdivision 9 to read as follows: 46 9. Notwithstanding the provisions of this section or any other 47 provision of law to the contrary, the authority shall continue its 48 corporate existence regardless of the alteration of the composition of 49 the board of education of the city school district of the city of New 50 York caused by the incorporation of the city of Staten Island and the 51 establishment of the city school district of the city of Staten Island. 52 § 8-001. Subdivision 1 of section 23 of the executive law, as amended 53 by chapter 385 of the laws of 2017, is amended to read as follows: 54 1. Each county, except Richmond county and those counties contained 55 within the city of New York, and each city with a population of one 56 million or more, shall prepare a comprehensive emergency managementS. 8474 93 1 plan. Each city with a population of less than one million, town and 2 village is authorized to prepare a comprehensive emergency management 3 plan. The disaster preparedness commission shall provide assistance and 4 advice for the development of such plans. Each city with a population of 5 less than one million, town and village plan shall be coordinated with 6 the county plan. 7 § 8-002. Subdivision 1 of section 101-b of the executive law, as 8 added by chapter 1214 of the laws of 1971, is amended to read as 9 follows: 10 1. Definitions. As used in this section, 11 a. "Agency" means any state board, bureau, commission, department, 12 division or officer authorized by law to adopt rules. 13 b. "Rule" means the whole or part of each agency statement of general 14 applicability or regulation or code that implements or applies law, 15 including the amendment, suspension or repeal thereof. 16 c. "Municipal corporation" means [a] any county outside the [city] 17 cities of New York and Staten Island, a city, a town, a village or a 18 school district. 19 d. "Governing body" means: 20 (1) In a county, a board of supervisors, county legislature or other 21 body vested by its charter, other law or other valid enactment with 22 jurisdiction to enact local laws; 23 (2) In a city, the board of aldermen, a common council, commission or 24 other body vested by its charter or other law with jurisdiction to enact 25 ordinances or local laws; 26 (3) In a town, the town board; 27 (4) In a village, the board of trustees; and 28 (5) In a school district, the board of education, board of trustees or 29 sole trustee. 30 § 8-003. Intentionally omitted. 31 § 8-004. Subdivisions 1, 2, 3, 4 and 6 of section 246 of the executive 32 law, subdivisions 1, 2 and 3 as amended by section 10 of part D of chap- 33 ter 56 of the laws of 2010, subdivision 4 as amended by section 102 of 34 part WWW of chapter 59 of the laws of 2017, and subdivision 6 as added 35 by chapter 479 of the laws of 1970 and as renumbered by chapter 813 of 36 the laws of 1985, are amended to read as follows: 37 1. The program of state aid to county probation services shall be 38 administered by the division of criminal justice services with the 39 advice of the state probation commission and the director of the office 40 of probation and correctional alternatives. Funds appropriated to the 41 division for distribution as state aid to county probation services 42 [and], to the probation services of New York city and to the probation 43 services of the city of Staten Island shall be distributed by the divi- 44 sion in accordance with rules and regulations adopted by the commission- 45 er of the division of criminal justice services after consultation with 46 the state probation commission and the director of the office of 47 probation and correctional alternatives. 48 2. State aid shall be granted to the city of New York, the city of 49 Staten Island and the respective counties outside [the city of New York] 50 such cities for expenditures to be incurred by the county or [city] such 51 cities in maintaining and improving local probation services subject to 52 amounts appropriated for this purpose. State aid grants shall not be 53 used for expenditures for capital additions or improvements, or for debt 54 service costs for capital improvements. 55 State aid shall be granted by the commissioner of the division of 56 criminal justice services after consultation with the state probationS. 8474 94 1 commission and the director of the office of probation and correctional 2 alternatives, provided the respective counties or the city of Staten 3 Island or the city of New York conform to standards relating to the 4 administration of probation services as adopted by the commissioner of 5 the division of criminal justice services after consultation with the 6 state probation commission and the director of the office of probation 7 and correctional alternatives. 8 3. Applications from counties or the city of Staten Island or the city 9 of New York for state aid under this section shall be made by filing 10 with the division of criminal justice services, a detailed plan, includ- 11 ing cost estimates covering probation services for the fiscal year or 12 portion thereof for which aid is requested. Included in such estimates 13 shall be clerical costs and maintenance and operation costs as well as 14 salaries of probation personnel and such other pertinent information as 15 the commissioner of the division of criminal justice services may 16 require. Items for which state aid is requested under this section shall 17 be duly designated in the estimates submitted. The commissioner of the 18 division of criminal justice services, after consultation with the state 19 probation commission and the director of the office of probation and 20 correctional alternatives, shall approve such plan if it conforms to 21 standards relating to the administration of probation services as speci- 22 fied in the rules adopted by him or her. 23 4. An approved plan and compliance with standards relating to the 24 administration of probation services promulgated by the commissioner of 25 the division of criminal justice services shall be a prerequisite to 26 eligibility for state aid. 27 The commissioner of the division of criminal justice services may take 28 into consideration granting additional state aid from an appropriation 29 made for state aid for county probation services for counties or the 30 city of Staten Island or the city of New York when a county or the city 31 of Staten Island or the city of New York demonstrates that additional 32 probation services were dedicated to intensive supervision programs and 33 intensive programs for sex offenders. The commissioner shall grant addi- 34 tional state aid from an appropriation dedicated to juvenile risk inter- 35 vention services coordination by probation departments which shall 36 include, but not be limited to, probation services performed under arti- 37 cle three of the family court act. The administration of such additional 38 grants shall be made according to rules and regulations promulgated by 39 the commissioner of the division of criminal justice services. Each 40 county and the city of Staten Island and the city of New York shall 41 certify the total amount collected pursuant to section two hundred 42 fifty-seven-c of this chapter. The commissioner of the division of crim- 43 inal justice services shall thereupon certify to the comptroller for 44 payment by the state out of funds appropriated for that purpose, the 45 amount to which the county or the city of Staten Island or the city of 46 New York shall be entitled under this section. The commissioner shall, 47 subject to an appropriation made available for such purpose, establish 48 and provide funding to probation departments for a continuum of 49 evidence-based intervention services for youth alleged or adjudicated 50 juvenile delinquents pursuant to article three of the family court act 51 or for eligible youth before or sentenced under the youth part in 52 accordance with the criminal procedure law. Such additional state aid 53 shall be made in an amount necessary to pay one hundred percent of the 54 expenditures for evidence-based practices and juvenile risk and 55 evidence-based intervention services provided to youth sixteen years of 56 age or older when such services would not otherwise have been providedS. 8474 95 1 absent the provisions of [a] part WWW of chapter fifty-nine of the laws 2 of two thousand seventeen [that increased the age of juvenile jurisdic-3tion]. 4 6. The director, after consultation with the state probation commis- 5 sion, may authorize or require the comptroller to withhold the payment 6 of state aid to any county, or the city of Staten Island or the city of 7 New York, in the event that such county, or the city of Staten Island or 8 the city of New York, (a) fails to conform to standards of probation 9 administration as formulated by the director pursuant to this section, 10 (b) discontinues or fails to follow an approved plan, or (c) fails to 11 enforce in a satisfactory manner rules promulgated pursuant to this 12 section, or laws now in effect or hereafter adopted which relate in any 13 manner to the administration of probation services. 14 § 8-004-a. The second undesignated paragraph of subdivision 4 of 15 section 246 of the executive law, as amended by section 103 of part WWW 16 of chapter 59 of the laws of 2017, is amended to read as follows: 17 The commissioner of the division of criminal justice services may take 18 into consideration granting additional state aid from an appropriation 19 made for state aid for county probation services for counties or the 20 city of Staten Island or the city of New York when a county or the city 21 of Staten Island or the city of New York demonstrates that additional 22 probation services were dedicated to intensive supervision programs and 23 intensive programs for sex offenders. The commissioner shall grant addi- 24 tional state aid from an appropriation dedicated to juvenile risk inter- 25 vention services coordination by probation departments which shall 26 include, but not be limited to, probation services performed under arti- 27 cle three of the family court act. The administration of such additional 28 grants shall be made according to rules and regulations promulgated by 29 the commissioner of the division of criminal justice services. Each 30 county and the city of Staten Island and the city of New York shall 31 certify the total amount collected pursuant to section two hundred 32 fifty-seven-c of this chapter. The commissioner of the division of crim- 33 inal justice services shall thereupon certify to the comptroller for 34 payment by the state out of funds appropriated for that purpose, the 35 amount to which the county or the city if Staten Island or the city of 36 New York shall be entitled under this section. The commissioner shall, 37 subject to an appropriation made available for such purpose, establish 38 and provide funding to probation departments for a continuum of 39 evidence-based intervention services for youth alleged or adjudicated 40 juvenile delinquents pursuant to article three of the family court act 41 or for eligible youth before or sentenced under the youth part in 42 accordance with the criminal procedure law. 43 § 8-005. Subdivision 1 of section 255 of the executive law, as added 44 by chapter 603 of the laws of 1973, is amended to read as follows: 45 1. There is hereby created a department of probation in and for the 46 city of New York to have charge of all probation work in the supreme, 47 family and criminal courts in the counties of Bronx, Kings, New York[,] 48 and Queens [and Richmond]. 49 § 8-006. The executive law is amended by adding a new section 255-a to 50 read as follows: 51 § 255-a. Probation in the city of Staten Island. 1. There is hereby 52 created a department of probation in and for the city of Staten Island 53 to have charge of all probation work in the supreme, family and other 54 criminal courts in the county of Richmond. 55 2. The head of such department shall be a director of probation 56 appointed by the mayor of the city of Staten Island to serve during theS. 8474 96 1 pleasure of the mayor. The director shall have charge of the adminis- 2 tration of the department and shall be responsible for carrying out the 3 functions of the department including intake, investigation, super- 4 vision, conciliation and pre-disposition social treatment in cases 5 coming to the courts referred to in this section. The director may, 6 from time to time, create, abolish, transfer and consolidate bureaus and 7 other units within the department as he or she may determine necessary 8 for efficient operation thereof. The director also shall have the power 9 to appoint and remove such deputy directors, assistants, probation offi- 10 cers and other employees as may be needed for the performance of the 11 duties of the department and may prescribe their duties and fix their 12 compensation, within appropriations made available therefor by the city 13 of Staten Island and subject to all applicable civil service laws and 14 rules and regulations. The director may, in his or her discretion, 15 appoint volunteer probation officers, when necessary, provided they have 16 the qualifications required of salaried officers, but no such volunteer 17 probation officer shall receive pay from the public funds for his or her 18 services. The city of Staten Island shall make the necessary appropri- 19 ation for the salaries of the director and of all officers and employees 20 of the department as referred to herein, as well as for the expenses 21 actually and necessarily incurred by such director, officers and employ- 22 ees in the performance of their duties. 23 3. The director shall discharge his or her powers and responsibil- 24 ities in accordance with all laws and rules applicable to probation and 25 with the general rules regulating methods and procedure in the adminis- 26 tration of probation as adopted from time to time pursuant to section 27 two hundred forty-three of this chapter. The director may adopt depart- 28 mental rules, not inconsistent with law or the aforesaid general rules, 29 to regulate the policies, programs, standards, and methods of procedure 30 in relation to probation and the powers and duties of officers and 31 employees as in the director's judgment are deemed proper. 32 4. Notwithstanding any other provision of law or of the Staten Island 33 city charter or administrative code, any duly appointed officer or 34 employee of such probation department may reside in any county within 35 the state. 36 § 8-007. Subdivisions 1 and 4 of section 257-c of the executive law, 37 as added by chapter 55 of the laws of 1992, are amended to read as 38 follows: 39 1. Notwithstanding any other provision of law, every county, the city 40 of Staten Island and the city of New York, may adopt a local law requir- 41 ing individuals currently serving or who shall be sentenced to a period 42 of probation upon conviction of any crime under article thirty-one of 43 the vehicle and traffic law to pay to the local probation department 44 with the responsibility of supervising the probationer an administrative 45 fee of thirty dollars per month. The department shall waive all or part 46 of such fee where, because of the indigence of the offender, the payment 47 of said surcharge would work an unreasonable hardship on the person 48 convicted, his or her immediate family, or any other person who is 49 dependent on such person for financial support. 50 4. In the event of non-payment of any fees which have not been waived 51 by the local probation department, the county, the city of Staten Island 52 or the city of New York may seek to enforce payment in any manner 53 permitted by law for enforcement of a debt. 54 § 8-008. Subdivision 3 of section 262 of the executive law, as amended 55 by section 28 of part A of chapter 56 of the laws of 2010, is amended to 56 read as follows:S. 8474 97 1 3. Upon approval by the board, by a majority of its members, any coun- 2 ty outside the [city] cities of New York and Staten Island acting 3 through its county executive, and upon approval of the local legislative 4 body, may submit a proposed service plan to the office for approval. The 5 city of New York acting through the mayor and upon approval by the board 6 of estimate and the city of Staten Island acting through the mayor and 7 upon approval by the common council may submit a proposed service plan 8 to the office for approval. 9 § 8-009. Subdivisions 1 and 2 of section 266 of the executive law, as 10 added by chapter 338 of the laws of 1989, are amended to read as 11 follows: 12 1. Counties and the [city] cities of New York and Staten Island may 13 submit approved amendments for alcohol and substance abuse programs as 14 defined in this article as part of or in addition to an approved plan. 15 In accordance with this article, nothing in this section shall prohibit 16 the development of regional alcohol and substance abuse programs by two 17 or more counties, the city of Staten Island or cities with a population 18 of one million or more. 19 2. Such approved amendments shall include a statement by the county or 20 the city of New York or the city of Staten Island indicating such 21 municipality's understanding that funding for eligible alcohol and 22 substance abuse programs shall be in accordance with subdivision four of 23 this section and the municipality's commitment to meet the funding 24 requirements as set forth in such subdivision. 25 § 8-010. Section 267 of the executive law, as amended by section 33 of 26 part A of chapter 56 of the laws of 2010, is amended to read as follows: 27 § 267. Office reports. The office shall submit to the governor, the 28 temporary president of the senate, the speaker of the assembly, the 29 [chairman] chairperson of the senate crime and correction committee and 30 the [chairman] chairperson of the assembly committee on codes by October 31 first of each year its evaluation and assessment of this alternatives 32 planning and programming effort by the counties. Such report shall 33 include, but not be limited to, the status of the development of such 34 plans, the approval and implementation of such plans, the success of the 35 programs, in terms of their utilization, effect on jail population, 36 results of the analyses provided counties and the [city] cities of New 37 York and Staten Island on the relationship between alcohol, drugs and 38 crime and the success of the eligible alcohol and substance abuse 39 programs and sentencing decisions together with any recommendations with 40 respect to the proper operation or improvement of planning and implemen- 41 tation of effective alternatives to detention and alternatives to incar- 42 ceration programs in counties. 43 § 8-011. Subdivisions 1 and 7 of section 530 of the executive law, 44 subdivision 1 as amended by section 4 of subpart B of part Q of chapter 45 58 of the laws of 2011, subdivision 7 as amended by section 21 of part K 46 of chapter 56 of the laws of 2019, are amended to read as follows: 47 1. Definitions. As used in this section, the term "municipality" shall 48 mean a county, the city of Staten Island or a city having a population 49 of one million or more. 50 7. The agency administering detention for each county and the city of 51 Staten Island and the city of New York shall submit to the office of 52 children and family services, at such times and in such form and manner 53 and containing such information as required by the office of children 54 and family services, an annual report on youth remanded pursuant to 55 article three or seven of the family court act who are detained during 56 each calendar year including, commencing January first, two thousandS. 8474 98 1 twelve, the risk level of each detained youth as assessed by a detention 2 risk assessment instrument approved by the office of children and family 3 services provided, however, that the report due January first, two thou- 4 sand twenty-one and thereafter shall not be required to contain any 5 information on youth who are subject to article seven of the family 6 court act. The office may require that such data on detention use be 7 submitted to the office electronically. Such report shall include, but 8 not be limited to, the reason for the court's determination in accord- 9 ance with section 320.5 or seven hundred thirty-nine of the family court 10 act to detain the youth; the offense or offenses with which the youth is 11 charged; and all other reasons why the youth remains detained. The 12 office shall submit a compilation of all the separate reports to the 13 governor and the legislature. 14 § 8-012. Subdivisions 1, 2 and 4 of section 214 of the elder law are 15 amended to read as follows: 16 1. Definitions. As used in this section, the following words shall 17 have the following meanings: 18 (a) "Designated agency" shall mean an agency which is designated by 19 the chief executive officer of the county if there be one, or otherwise 20 the governing board of such county, or the chief executive officer of 21 the city of New York or the mayor of the city of Staten Island, or the 22 governing board of an Indian tribal council; which is either a unit of 23 county government or the city of New York or the city of Staten Island 24 or an Indian tribal organization or a private non-profit agency, and 25 which is the area agency on aging created pursuant to the federal older 26 Americans act of 1965. 27 (b) "Elderly person" shall mean a person sixty years of age or older. 28 (c) "County" shall mean a county, as defined in section three of the 29 county law, except that the city of New York shall be considered one 30 county. 31 (d) "Base year expenditures" and "base year services" shall mean the 32 level of expenditures and services in the year prior to the first year 33 for which a county plan is submitted or in such county's two thousand 34 five fiscal year, whichever is greater. 35 (e) "Community services" shall mean services for elderly persons which 36 are provided by a public or governmental agency or non-profit agency, 37 and which are provided in the home of an elderly person or in community 38 settings such as senior citizens centers, housing projects, or agency 39 offices. Such services shall not include any services provided pursuant 40 to the public health law other than home care services. 41 (f) "Community service projects" shall mean community services 42 financed pursuant to paragraph (b) of subdivision four of this section. 43 (g) "County plan" shall mean a plan for community services prepared by 44 a county pursuant to this section. 45 (h) "Non-profit agency" shall mean a corporation organized or existing 46 pursuant to the not-for-profit corporation law. 47 (i) "Program year" shall mean the period from April first through 48 March thirty-first of the following calendar year. 49 (j) "First program year" for a county shall mean the initial year for 50 which the county has received approval for its county plan. 51 2. County plans for improving the availability of community services 52 to the elderly. (a) Counties with a designated agency are required to 53 submit a county plan for a two-, three-, or four-year period determined 54 by the director, with an annual update containing a budget request for 55 the forthcoming program year and such other information as shall be 56 required by the director, for improving the delivery of communityS. 8474 99 1 services for elderly persons in the format prescribed by the director. 2 The plan for the city of New York or the plan for the city of Staten 3 Island shall specifically address the needs of each county within such 4 city. Such plan shall be a comprehensive description of the manner in 5 which the county intends to address the needs of elderly persons living 6 in the county through improved coordination of existing community 7 services and by the development of any new or expanded community service 8 projects which will improve the delivery of services to the elderly. 9 Such plan shall contain: 10 (1) a statement of goals and objectives for addressing the needs of 11 elderly persons in the county, an assessment of the needs of elderly 12 persons residing in the county, a description of public and private 13 resources that currently provide community services to elderly persons 14 within the county, a description of intended actions to consolidate and 15 coordinate existing community services administered by county govern- 16 ment, a description of the intended actions to coordinate congregate 17 services programs for the elderly operated within the county pursuant to 18 section two hundred seventeen of this title with other community 19 services for the elderly, a description of the means to coordinate other 20 community services for elderly persons in the county with those adminis- 21 tered by county government, and a statement of the priorities for the 22 provision of community services during the program period covered by 23 such plan; 24 (2) an identification of community service projects to be developed to 25 improve the delivery of services, a budget request for approval for the 26 forthcoming year which individually identifies each community service 27 project to be funded pursuant to paragraph (b) of subdivision four of 28 this section, letters of comment from the appropriate local agencies on 29 the relationship and expected impact of the proposed community service 30 projects, assurances that community service projects will provide 31 services to those most in need, an indication of fee schedules by which 32 elderly persons participating in community service projects may contrib- 33 ute to the costs of such projects, and an indication of how the effec- 34 tiveness of such community service projects will be evaluated; 35 (3) an identification of planning, coordination, and administrative 36 activities necessary to achieve the goals and objectives of the plan, 37 together with a budget request for such activities for approval for the 38 forthcoming year to be funded pursuant to paragraph (a) of subdivision 39 four of this section, and assurances by the county that it will comply 40 with the requirements of state and federal law; and 41 (4) such other components as may be required pursuant to regulations 42 promulgated by the director. 43 (b) Such county plan for community services or annual update shall be 44 prepared by the designated agency and approved by the chief executive 45 officer of the county, if there be one, or otherwise the governing board 46 of the county, or the chief executive of the city of New York or the 47 mayor of the city of Staten Island and submitted to the director no 48 later than ninety days prior to the beginning of the program period 49 covered by such plan or annual update. Prior to a submission of a coun- 50 ty plan or annual update to the director for approval, the designated 51 agency shall conduct such public hearings as may be required by regu- 52 lations of the director, provided that there shall be at least one such 53 hearing, and one in each county contained within the city of New York or 54 the city of Staten Island. 55 (c) The director shall review such county plan and may approve or 56 disapprove such plan, or any part, program, or project within such plan,S. 8474 100 1 and shall propose such modifications and conditions as are deemed appro- 2 priate and necessary. Compliance with paragraphs (a) and (b) of this 3 subdivision shall be the basis for approval of a county plan. The direc- 4 tor shall establish by regulation the dates for notifying the designated 5 agency of approval or disapproval of a county plan. In the event the 6 director shall disapprove the proposed county plan, the county submit- 7 ting such application shall be afforded an opportunity for an adjudica- 8 tory hearing, as prescribed by article three of the state administrative 9 procedure act. 10 (d) Notwithstanding any provision of this section, nothing contained 11 in this section shall give the director or a designated agency any 12 administrative, fiscal, supervisory, or other authority whatsoever over 13 any plans, programs or expenditures authorized pursuant to titles eigh- 14 teen, nineteen and twenty of the federal social security act, or over 15 any unit of state or local government. 16 (e) Counties with a designated agency may submit to the director a 17 letter of intent, in the form and by the date prescribed by the director 18 with the approval of the director of the budget, evidencing the commit- 19 ment of the county to develop a county home care plan for functionally 20 impaired elderly. 21 (f) Within the amounts appropriated therefor, counties submitting an 22 approved letter of intent pursuant to paragraph (e) of this subdivision 23 shall be eligible for reimbursement of one hundred percent of the 24 approved expenditures for preparing a county home care plan for func- 25 tionally impaired elderly. Such a grant-in-aid shall be available to a 26 county only once and shall be limited to one-half the amount available 27 to such county pursuant to subparagraph one of paragraph (a) of subdivi- 28 sion four of this section; provided however that in either of the two 29 years immediately following its first submission of a home care plan for 30 functionally impaired elderly, a county which does not receive state aid 31 during such year for expanded non-medical in-home services, non-institu- 32 tional respite services, case management services, and ancillary 33 services pursuant to paragraph (j) of subdivision four of this section, 34 may apply for reimbursement of one hundred percent of the approved 35 expenditures for revising such home care plan, limited to one-quarter 36 the amount available to such county pursuant to subparagraph one of 37 paragraph (a) of subdivision four of this section. 38 (g) County home care plans for functionally impaired elderly prepared 39 pursuant to this subdivision shall include a comprehensive description 40 of all aspects of home care, non-institutional respite, case management, 41 and ancillary services available to elderly persons in the county; a 42 description of intended actions to coordinate such home care, non-insti- 43 tutional respite, case management, and ancillary services to func- 44 tionally impaired elderly persons in their county provided under this 45 section with other services to elderly persons; a proposal for expanded 46 non-medical in-home services, non-institutional respite services, case 47 management services, and ancillary services for functionally impaired 48 elderly persons with unmet needs to support such persons' continued 49 residence in their homes; and such other components as may be required 50 pursuant to regulations promulgated by the director, including how the 51 proposed expanded non-medical in-home services, non-institutional 52 respite services, case management services, and ancillary services will 53 be delivered to unserved or underserved populations. 54 (h) Such county home care plan for functionally impaired elderly shall 55 be prepared by the designated agency after consultation with the social 56 services district and the local public health agency, and shall beS. 8474 101 1 approved by the chief executive officer of the county, if there be one, 2 or otherwise the governing board of the county, or the chief executive 3 of the city of New York or the mayor of the city of Staten Island, and 4 submitted to the director for approval by such date as may be specified 5 by regulation. The director shall not approve such county home care plan 6 for functionally impaired elderly unless it complies with the standards 7 and regulations issued pursuant to this section. 8 4. State aid. (a) County plans for improving the availability of 9 community services to the elderly: 10 (1) within the amounts appropriated therefor, counties with an 11 approved county plan shall be eligible for reimbursement of one hundred 12 percent of the annual approved expenditures for the preparation and 13 revision of such county plan, evaluation of projects contained within 14 such county plan, execution of interagency agreements necessary to carry 15 out the plan, actions to consolidate, combine or collocate services 16 within the county, and such other costs of the designated agency neces- 17 sary to implement such county plan, provided that the total annual 18 amount payable to a county pursuant to this subparagraph shall not 19 exceed the sum of one dollar for each elderly person residing in the 20 county, or seventy-five thousand dollars, whichever is less, and further 21 provided that for the city of New York or the city of Staten Island such 22 amount shall not exceed one dollar for each elderly person residing in 23 [the] such city or three hundred seventy-five thousand dollars, whichev- 24 er is less. Notwithstanding the foregoing limitations, counties with a 25 population of less than twenty thousand elderly persons shall be eligi- 26 ble for reimbursement of one hundred percent of such annual approved 27 expenditures provided that the total annual amount of such reimbursement 28 per county shall not exceed twenty thousand dollars. 29 (2) within the amounts appropriated therefor, a county may receive a 30 grant-in-aid of up to twenty-five per centum of the total annual amount 31 that such county is eligible to receive pursuant to subparagraph one of 32 this paragraph for the cost of preparing an initial county plan in 33 accordance with this section. Such a grant-in-aid shall be available to 34 a county only once and shall be in addition to the reimbursement 35 received by the county pursuant to subparagraph one of this paragraph 36 for the first program year. A request for such a grant-in-aid shall be 37 accompanied by a letter of intent in the form prescribed by the director 38 evidencing the commitment of the county to develop a county plan for 39 community services and shall be submitted to the director at least six 40 months prior to the beginning of the first program year. 41 (b) Community service projects: 42 (1) within the amounts appropriated therefor, counties having an 43 approved county plan shall be eligible for reimbursement by the state 44 for expenditures for approved community service projects pursuant to 45 this section. Such state reimbursement shall not exceed thirty-three 46 thousand six hundred dollars or four dollars twenty cents for each 47 elderly person residing in the county, whichever is greater. The annual 48 state reimbursement eligibility shall be at a rate of seventy-five 49 percent of the total annual expenditures for such approved programs. 50 (2) the director shall provide by regulation that certain non-county 51 moneys and in-kind equivalents may be used to comprise the county share 52 of such total annual approved expenditures, provided that such county 53 share shall not include cost-sharing received from elderly persons 54 receiving expanded non-medical in-home services, non-institutional 55 respite services, case management services, and ancillary services 56 pursuant to paragraph (k) of this subdivision or moneys received fromS. 8474 102 1 the federal government for services for the elderly allocated to the 2 states or local governments according to population or other such non- 3 competitive basis. 4 (3) the director shall provide by regulation the requirements for any 5 participant contributions and fee schedules used for community service 6 projects and the manner for the accounting and use of any such revenue. 7 (c) Reimbursement pursuant to this section shall not be available for 8 expenditures for base year services otherwise provided without cost, or 9 to replace base year expenditures made by the county or any other 10 service provider irrespective of the source of funds for such services. 11 (d) Reimbursement shall not be available to community services 12 projects funded pursuant to paragraph (b) of this subdivision or to 13 expanded non-medical in-home services, non-institutional respite 14 services, case management services, and ancillary services funded pursu- 15 ant to paragraph (j) of this subdivision for services provided to elder- 16 ly persons who are eligible for or are receiving services to meet their 17 needs pursuant to titles eighteen, nineteen or twenty of the federal 18 social security act or any other governmental programs or for services 19 provided to residents in adult residential care facilities which had 20 previously been provided by the facility or which are required by law to 21 be provided by such facility. 22 (e) For the purpose of determining the amount of state reimbursement 23 for which a county is eligible pursuant to this section, the last 24 preceding federal census or other census data approved by the comp- 25 troller shall be used. Funds appropriated by the state for the purpose 26 of reimbursement for community services pursuant to this section shall 27 be apportioned among the counties pursuant to the formula set forth in 28 paragraph (b) of this subdivision by the director. Funds appropriated by 29 the state for the purpose of reimbursement for expanded non-medical 30 in-home services, non-institutional respite services, case management 31 services, and ancillary services pursuant to this section shall be 32 apportioned among the counties by the director pursuant to the formula 33 set forth in paragraph (j) of this subdivision. 34 (f) The comptroller may withhold the payment of state aid to any coun- 35 ty in the event that such county alters or discontinues the operations 36 approved by the director pursuant to this section or otherwise fails to 37 comply with the regulations or requirements of the director. 38 (g) Counties shall submit claims for reimbursement after the end of 39 each month or each quarter as required by and in accordance with proce- 40 dures prescribed by the director. Reimbursement shall be available for 41 approved expenditures incurred in accordance with an approved county 42 plan for community services. 43 (h) Reimbursement pursuant to subparagraph one of paragraph (b) or 44 paragraph (j) of this subdivision shall not be available for expendi- 45 tures for community or expanded non-medical in-home services, non-insti- 46 tutional respite services, case management services, and ancillary 47 services to elderly persons in the city of New York and in the city of 48 Staten Island unless expenditures for such services are apportioned for 49 services in each of the counties contained within such city in a manner 50 which the director has determined by regulation substantially reflects 51 the proportion that the number of elderly persons in that county bears 52 to the total number of elderly persons in [the] such city as a whole. In 53 determining whether reimbursement shall be available under paragraph (g) 54 of this subdivision, the director shall ensure that expenditures were 55 apportioned in accordance with the provisions of this paragraph.S. 8474 103 1 (i) The director, within the amounts appropriated therefor and with 2 the approval of the director of the budget, may authorize a county which 3 has an approved home care plan for functionally impaired elderly to 4 provide expanded non-medical in-home services, non-institutional respite 5 services, case management services, and ancillary services pursuant to 6 such plan. Such services shall be limited to those services necessary to 7 meet otherwise unmet needs and which support such elderly persons' 8 continued residence in their homes. Needs will be determined pursuant to 9 a standardized evaluation of functional impairment, available resources 10 and such other relevant factors specified pursuant to regulations 11 promulgated by the director. No expanded non-medical in-home services, 12 non-institutional respite services, or ancillary services shall be 13 provided to any individual pursuant to this section unless such expanded 14 non-medical in-home services, non-institutional respite services, or 15 ancillary services are accompanied by ongoing case management services 16 in accordance with regulations promulgated by the director. 17 (j) Within the amounts appropriated therefor, counties authorized to 18 provide expanded non-medical in-home services, non-institutional respite 19 services, case management services, and ancillary services pursuant to 20 paragraph (i) of this subdivision shall be eligible for reimbursement by 21 the state of up to seventy-five percent of allowable expenditures for 22 approved services pursuant to this section up to the level authorized by 23 the director. The director shall not authorize a level of state 24 reimbursement pursuant to this paragraph which exceeds the sum of nine- 25 ty-one thousand two hundred fifty dollars or seven dollars thirty cents 26 for each elderly person residing in the county, whichever is greater, 27 and shall proportionately reduce such sum for each county in any years 28 for which appropriations are not sufficient to fully fund approved 29 expanded non-medical in-home services, non-institutional respite 30 services, case management services, and ancillary services for func- 31 tionally impaired elderly in all counties with approved home care plans; 32 provided however that in state fiscal years beginning on or after the 33 first day of April, two thousand five, the director, with the approval 34 of the director of the budget, may authorize state reimbursement in 35 excess of these levels to the extent appropriations are available there- 36 for. 37 (k) The director, with the approval of the director of the budget, 38 shall provide by regulation the extent of cost-sharing to be required of 39 elderly persons receiving expanded non-medical in-home services, non-in- 40 stitutional respite services, case management services, and ancillary 41 services pursuant to this section, which shall reflect such recipients' 42 means to pay for such services and which will not affect their ability 43 to remain in their homes; provided however that the director shall not 44 authorize or direct the withholding of state aid pursuant to paragraph 45 (f) of this subdivision prior to the first day of April, two thousand 46 five, based on any county's failure or inability to comply with regu- 47 lations promulgated pursuant to this paragraph. The full amount of cost- 48 sharing actually received by any county from elderly persons receiving 49 expanded non-medical in-home services, non-institutional respite 50 services, case management services, and ancillary services shall be used 51 by such county to expand either such county's program of community 52 services or such county's program of expanded non-medical in-home 53 services, non-institutional respite services, case management services, 54 and ancillary services pursuant to this section. 55 (l) Reimbursement pursuant to paragraph (j) of this subdivision shall 56 not be available for expenditures for base year services otherwiseS. 8474 104 1 provided without cost, or to replace base year expenditures made by the 2 county or any other service provider irrespective of the source of 3 funds, or to replace community services expenditures pursuant to para- 4 graph (b) of this subdivision. 5 (m) Counties shall submit claims for reimbursement for expanded 6 in-home services, non-institutional respite services, case management 7 services, and ancillary services to functionally impaired elderly as 8 required by and in accordance with procedures prescribed by the direc- 9 tor. Reimbursement shall be available for approved expenditures 10 incurred in accordance with an approved county home care plan for func- 11 tionally impaired elderly to the extent the director has authorized 12 state aid for such services pursuant to paragraph (i) of this subdivi- 13 sion. 14 (n) The director shall provide by regulation that certain non-county 15 moneys and in-kind equivalents may be used in part to compose the county 16 share of total allowable expenditures pursuant to paragraph (j) of this 17 subdivision, provided that such county share shall not include cost- 18 sharing received from elderly persons receiving expanded non-medical 19 in-home services, non-institutional respite services, case management 20 services, and ancillary services pursuant to paragraph (k) of this 21 subdivision or moneys received from the federal government for services 22 for the elderly allocated to the states or local governments according 23 to population or other such non-competitive basis. 24 § 8-013. Subdivision 9 of section 140 of the executive law, as amended 25 by chapter 861 of the laws of 1960, is amended to read as follows: 26 9. The clerks of the counties of New York, Kings, Queens, Richmond 27 and Bronx shall each keep a book or card index file in which shall be 28 registered the signature of the commissioners so filing such certif- 29 icates; and the county clerk of any county in the city with whom such 30 commissioner has filed a certificate of appointment shall, upon demand 31 and upon payment of the sum of fifty cents, authenticate a certificate 32 of acknowledgment or proof of oath taken before such commissioner of 33 deeds, without regard to the county in the city in which such [acknowlg-34ment] acknowledgment or proof was taken or oath administered, by 35 subjoining or attaching to the original certificate of acknowledgment or 36 proof or oath a certificate under his hand and official seal specifying 37 that at the time of taking the acknowledgment or proof or oath the offi- 38 cer taking it was duly authorized to take the same; that the authenti- 39 cating officer is acquainted with the former's handwriting, or has 40 compared the signature on the certificate of acknowledgment, proof or 41 oath with the autograph signature deposited in his office by such offi- 42 cer, and that he verily believes the signature is genuine. 43 § 8-014. Any person who resides in or maintains an office or other 44 place of business in the city of Staten Island and who resides in the 45 county of Richmond on the date of establishment of the city of Staten 46 Island who holds an appointment as a commissioner of deeds from the 47 preceding municipality shall be deemed to hold the appointment as 48 commissioner of deeds from the common council of the city of Staten 49 Island in accordance with the provisions of section 139 of the executive 50 law. Such person shall continue to hold such office until his original 51 appointment expires or is revoked pursuant to law. 52 § 8-015. Section 56 of the social services law, as amended by chapter 53 863 of the laws of 1977, is amended to read as follows: 54 § 56. City social services districts. The city of New York and the 55 city of Staten Island shall have all the powers and duties of a social 56 services district insofar as consistent with the provisions of theS. 8474 105 1 special and local laws relating to such [city] cities. The officers 2 thereof charged with the administration of public assistance and care 3 shall have additional powers and duties of a commissioner of social 4 services not inconsistent with the laws relating to said [city] cities. 5 § 8-016. Section 57 of the social services law, as amended by chapter 6 863 of the laws of 1977, is amended to read as follows: 7 § 57. Cities in county social services districts. Each city, other 8 than the city of New York and the city of Staten Island, shall form part 9 of the county social services district of the county in which it is 10 situated and shall not assume any powers and responsibilities for the 11 administration or expense of public assistance and care, in addition to 12 those specified in subdivision two of section sixty-nine, except pursu- 13 ant to the provisions of sections seventy-four and seventy-four-a of 14 this chapter. 15 § 8-017. Section 61 of the social services law is amended by adding a 16 new subdivision 1-a to read as follows: 17 1-a. The city of Staten Island is hereby constituted a city social 18 services district. 19 § 8-018. Subdivision 1 of section 74 of the social services law, as 20 added by chapter 863 of the laws of 1977, is amended to read as follows: 21 1. Each city, other than the city of New York and the city of Staten 22 Island, which is responsible for one or more types of public assistance 23 and care on the date this section becomes effective shall function under 24 section seventy-four-a of this chapter. 25 § 8-019. Section 86-a of the social services law, as amended by chap- 26 ter 655 of the laws of 1978, is amended to read as follows: 27 § 86-a. City public welfare funds. The taxes levied for public 28 assistance and care in a city, or in a city public welfare district, 29 shall be paid to the city treasurer, [or] the commissioner of finance in 30 the city of New York or the comptroller in the city of Staten Island, 31 and disbursed in accordance with the provisions of law relating to such 32 city for the payment of bills and claims, provided such provisions of 33 law are not inconsistent with the provisions of this chapter. 34 § 8-020. Intentionally omitted. 35 § 8-021. Subdivision 2 of section 209 of the social services law, as 36 amended by chapter 71 of the laws of 1983, paragraphs (a), (b), (c), 37 (d), (e) and (f) as amended by section 2 of part Z of chapter 56 of the 38 laws of 2023, is amended to read as follows: 39 2. The following amounts shall be the standard of monthly need for 40 determining eligibility for and the amount of additional state payments, 41 depending on the type of living arrangement and the geographic area in 42 which the eligible individual or the eligible couple resides: 43 (a) On and after January first, two thousand twenty-three, for an 44 eligible individual living alone, $1,001.00; and for an eligible couple 45 living alone, $1,475.00. 46 (b) On and after January first, two thousand twenty-three, for an 47 eligible individual living with others with or without in-kind income, 48 $937.00; and for an eligible couple living with others with or without 49 in-kind income, $1,417.00. 50 (c) On and after January first, two thousand twenty-three, (i) for an 51 eligible individual receiving family care, $1,180.48 if he or she is 52 receiving such care in the city of New York, the city of Staten Island 53 or the county of Nassau, Suffolk, Westchester or Rockland; and (ii) for 54 an eligible couple receiving family care in the city of New York, the 55 city of Staten Island or the county of Nassau, Suffolk, Westchester or 56 Rockland, two times the amount set forth in subparagraph (i) of thisS. 8474 106 1 paragraph; or (iii) for an eligible individual receiving such care in 2 any other county in the state, $1,142.48; and (iv) for an eligible 3 couple receiving such care in any other county in the state, two times 4 the amount set forth in subparagraph (iii) of this paragraph. 5 (d) On and after January first, two thousand twenty-three, (i) for an 6 eligible individual receiving residential care, $1,349.00 if he or she 7 is receiving such care in the city of New York, the city of Staten 8 island or the county of Nassau, Suffolk, Westchester or Rockland; and 9 (ii) for an eligible couple receiving residential care in the city of 10 New York, the city of Staten Island or the county of Nassau, Suffolk, 11 Westchester or Rockland, two times the amount set forth in subparagraph 12 (i) of this paragraph; or (iii) for an eligible individual receiving 13 such care in any other county in the state, $1,319.00; and (iv) for an 14 eligible couple receiving such care in any other county in the state, 15 two times the amount set forth in subparagraph (iii) of this paragraph. 16 (e) On and after January first, two thousand twenty-three, (i) for an 17 eligible individual receiving enhanced residential care, $1,608.00; and 18 (ii) for an eligible couple receiving enhanced residential care, two 19 times the amount set forth in subparagraph (i) of this paragraph. 20 (f) The amounts set forth in paragraphs (a) through (e) of this 21 subdivision shall be increased to reflect any increases in federal 22 supplemental security income benefits for individuals or couples which 23 become effective on or after January first, two thousand twenty-four but 24 prior to June thirtieth, two thousand twenty-four. 25 § 8-022. Subdivision 1 of section 368-e of the social services law, as 26 amended by section 55 of part B of chapter 58 of the laws of 2009, is 27 amended to read as follows: 28 1. The department of health shall review claims for expenditures made 29 by counties, the city of Staten Island and the city of New York for 30 medical care, services and supplies which are furnished to preschool 31 children with handicapping conditions or such preschool children 32 suspected of having handicapping conditions, as such children are 33 defined in the education law. If approved by the department, payment for 34 such medical care, services and supplies which would otherwise qualify 35 for reimbursement under this title and which are furnished in accordance 36 with this title and the regulations of the department to such children, 37 shall be made in accordance with the department's approved medical 38 assistance fee schedules by payment to such county or [city] cities 39 which furnished the care, services or supplies either directly or by 40 contract. Notwithstanding any provisions of law, rule or regulation to 41 the contrary, any clinic or diagnostic and treatment center licensed 42 under article twenty-eight of the public health law, which as determined 43 by the state education department, in conjunction with the department of 44 health, has a less than arms length relationship with the provider 45 approved under section forty-four hundred ten of the education law 46 shall, subject to the approval of the department and based on standards 47 developed by the department, be authorized to directly submit such 48 claims for medical assistance, services or supplies so furnished for any 49 period beginning on or after July first, nineteen hundred ninety-seven. 50 The actual full cost of the individualized education program (IEP) 51 related services incurred by the clinic shall be reported on the New 52 York State Consolidated Fiscal Report in the education law section 53 forty-four hundred ten program cost center in which the student is 54 placed and the associated medical assistance revenue shall be reported 55 in the same manner.S. 8474 107 1 § 8-023. Subdivision 13 of section 390 of the social services law, as 2 amended by chapter 160 of the laws of 2003, is amended to read as 3 follows: 4 13. Notwithstanding any other provision of law, this section[, except5for paragraph (a-1) of subdivision two-a of this section,] shall not 6 apply to child day care centers in the city of New York or in the city 7 of Staten Island. 8 § 9-001. Subdivision 1 of section 214 of the county law, as amended by 9 chapter 967 of the laws of 1973, is amended to read as follows: 10 1. Concurrent resolutions, election notices and official canvass. 11 The members of the county legislative body, whether such body be denomi- 12 nated board of supervisors, county legislature or otherwise, or, in the 13 [city] cities of New York and Staten Island, of the council of each such 14 city representing respectively each of the two principal political 15 parties into which the people of the state are divided, shall designate 16 annually the newspaper published within the county to publish the 17 concurrent resolutions of the legislature. Such designation shall be in 18 writing and signed by a majority of the members representing each of 19 said political parties. In making such designation, consideration shall 20 be given to the newspapers advocating the principles of such political 21 party, the support of its nominees and the extent of the circulation in 22 the county. However the fact that a newspaper is an independent newspa- 23 per not advocating the principles of any political party shall not 24 disqualify it from consideration. If there be but one newspaper 25 published in the county, such newspaper shall be designated. The desig- 26 nation shall be filed with the clerk of the county legislative body or, 27 in the [city] cities of New York and Staten Island, with the clerk of 28 the council of each such city, who shall not later than January tenth 29 cause notice of the name and address of such newspaper or newspapers to 30 be forwarded to the secretary of state. In like manner the members of 31 the county legislative body or, in the [city] cities of New York and 32 Staten Island, of the council of each such city representing each of the 33 two principal political parties into which the people of the state are 34 divided, shall designate the newspaper published within the county to 35 publish the election notices issued by the secretary of state and the 36 newspaper to publish the official canvass. In the event of a failure so 37 to designate in any year, or if either of such political parties has no 38 representatives among the body or, in the [city] cities of New York and 39 Staten Island, council membership, the last newspaper designated by the 40 members of such party shall be deemed duly designated. 41 § 9-002. Section 226-a of the county law, as added by chapter 80 of 42 the laws of 1969, is amended to read as follows: 43 § 226-a. Patriotic observances. The county legislature and/or board 44 of supervisors, as the case may be, of any county or borough outside the 45 city of New York or the city of Staten Island, is hereby authorized to 46 appropriate and set aside each year such sums it may deem proper for the 47 purpose of providing for the due and proper observance of any legal 48 holiday, including Columbus day. 49 § 9-003. Section 361-a of the county law, as amended by chapter 359 of 50 the laws of 1989, is amended to read as follows: 51 § 361-a. Expenses of boards of elections outside New York City and the 52 city of Staten Island; apportionment of. The board of elections in each 53 county, outside of the [city] cities of New York and Staten Island, on 54 or before the fifteenth day of December and not earlier than the first 55 day of October, in each year, shall certify to the clerk of the legisla- 56 tive body of the county, the total amount of the expenses of such boardS. 8474 108 1 of elections, including salaries for the preceding year, and, if the 2 legislative body of any county shall so direct, shall certify to such 3 clerk the portions of such expenses which under provisions of law are to 4 be borne by any city or cities in said county and the portion thereof 5 which is to be borne by the rest of such county and such clerk shall 6 thereupon notify the proper local official or officials, who, in spread- 7 ing upon the assessment-rolls the taxes to be levied upon the taxable 8 property in the city or any such cities, and in the rest of the county, 9 shall include in the amount so spread the amounts certified by the board 10 of elections to be borne by such city or cities, respectively, and in 11 the amount spread upon the assessment-rolls of the taxable property in 12 the several towns or other political subdivisions of the rest of the 13 county the amount so certified by said board of elections to be borne by 14 such towns or political subdivisions respectively. Whenever any addi- 15 tional expenses either for salaries or supplies in addition to the regu- 16 lar county-wide primary and election expenses are incurred by a board of 17 elections incidental to any election in any city, town or village, such 18 board of elections shall certify to the county legislative body a 19 detailed statement of such expenses and said county legislative body may 20 cause the amount thereof to be levied against such city, town or village 21 or may certify the amount thereof to such city, town or village and such 22 city, town or village shall upon such certification, include the amount 23 so certified in the next budget and tax levy and shall pay the same to 24 the county. 25 § 9-004. Subdivision 2 of section 390 of the county law, as added by 26 chapter 1 of the laws of 1951, is amended to read as follows: 27 2. Whenever a patient admitted to said hospital has local residence, 28 as defined in the public health law, in the county in which the hospital 29 is situated, he shall be a charge upon such county. If such patient 30 admitted to said hospital has local residence in some other county or in 31 the city of New York or the city of Staten Island, he shall be a charge 32 upon such other county or the city of New York or the city of Staten 33 Island, as the case may be, and the superintendent shall send a bill for 34 such charge to the clerk of the board of supervisors of such other coun- 35 ty or to the comptroller of the city of New York or of the city of 36 Staten Island. Such charge shall be at a rate to be fixed by the board 37 of managers, which shall not exceed the per diem per capita cost of care 38 and treatment in said hospital, and if the county operating said hospi- 39 tal is currently receiving state aid for the care and treatment of 40 tuberculosis patients pursuant to the public health law, such charge may 41 be an amount for each day of such patient's care equivalent to the 42 balance of the total per diem per capita cost of operating such hospital 43 during the preceding fiscal year, as computed and approved by the state 44 commissioner of health [pursuant to subdivision three of section fifty-45four of the public health law]. Such bill shall be audited and paid by 46 the board of supervisors of said county, except that a bill so submitted 47 to the city of New York or the city of Staten Island shall be paid by 48 such city after audit and upon warrant of the comptroller of such city. 49 Any patient admitted to said hospital may pay for his care and treatment 50 in whole or in part if he volunteers to do so. 51 § 9-005. Section 391 of the county law, as added by chapter 1 of the 52 laws of 1951, is amended to read as follows: 53 § 391. Admission of out of county patients. 1. Exclusive of the 54 city of New York and the city of Staten Island, and exclusive of coun- 55 ties served by state tuberculosis hospitals, any person in a county not 56 having a county hospital for the care and treatment of persons sufferingS. 8474 109 1 from tuberculosis may apply in person to the clerk of the board of 2 supervisors of such county or to the state commissioner of health for 3 admission to a tuberculosis hospital, providing that such person submit 4 with such application a statement signed by a reputable physician that 5 such physician has, within the ten days preceding the date of such 6 application, examined such person and that, in his opinion, such person 7 is suffering from tuberculosis or is suspected of having tuberculosis 8 and is in need of care and treatment therefor. Upon receipt of such 9 application, the clerk of the board of supervisors or the state commis- 10 sioner of health, as the case may be, shall forward the same to the 11 superintendent of any state, county or city hospital for the care and 12 treatment of tuberculosis. 13 2. Whenever the superintendent of such a hospital shall receive an 14 application for the admission of a patient in accordance with the 15 provisions of subdivision one of this section, if it appear from such 16 application that the person therein referred to is suffering from tuber- 17 culosis or is suspected of having tuberculosis and is in need of care 18 and treatment therefor, the superintendent shall notify said person to 19 appear in person at the hospital, provided there be a vacancy in such 20 hospital and there be no pending application from a patient living in 21 the county in which the hospital is located. If, upon personal examina- 22 tion of the patient, the superintendent is satisfied that such patient 23 is in need of care and treatment for tuberculosis, he shall admit him to 24 the hospital. Every patient so admitted shall be a charge against the 25 county in which he was living immediately prior to such admission. Such 26 charge shall be at a rate to be fixed by the board of managers, which 27 shall not exceed the per diem per capita cost of maintenance therein and 28 any cost of transportation to or from the hospital, except that if the 29 county operating said hospital is currently receiving state aid for the 30 care and treatment of tuberculosis patients pursuant to the public 31 health law, such charge shall be an amount for each day of such 32 patient's care equivalent to the balance of the total per diem per capi- 33 ta cost of operating such hospital during the preceding fiscal year, as 34 computed and approved by the state commissioner of health [pursuant to35subdivision three of section fifty-four of the public health law]; and 36 the bill therefor shall be audited and paid by the board of supervisors 37 of the said county. However, if such patient has local residence, as 38 defined in the public health law, in some county other than the one in 39 which he was living immediately prior to such admission or in the city 40 of New York or the city of Staten Island, he shall be a charge upon such 41 other county or the city of New York or the city of Staten Island, as 42 the case may be, and in this event any amounts for the cost of such care 43 and treatment which shall have been paid by the county from which he was 44 admitted shall be charged back and reimbursed to such county by the 45 aforesaid other county or the city of New York or the city of Staten 46 Island in which the patient has local residence. Any patient admitted 47 to a hospital in accordance with the provisions of subdivision one of 48 this section may pay for his care and treatment in whole or in part if 49 he volunteers to do so. 50 § 9-006. Section 901 of the county law is amended by adding a new 51 subdivision 1-a to read as follows: 52 1-a. The commissioner of corrections of the city of Staten Island 53 shall have custody of the civil jails and persons lawfully committed to 54 his or her custody and such jails shall be kept by him or her, or by 55 keepers appointed by him or her, for whose acts he or she shall be 56 responsible.S. 8474 110 1 § 9-007. Subdivision 1 of section 902 of the county law, as amended by 2 chapter 950 of the laws of 1956, is amended to read as follows: 3 1. The offices of the county clerk in the counties constituting the 4 city of New York and the office of the Richmond county clerk shall 5 remain open for the transaction of business from nine o'clock in the 6 forenoon to four o'clock in the afternoon every day except Saturdays, 7 Sundays and holidays and except in the months of July and August when 8 said offices shall remain open for the transaction of business from nine 9 o'clock in the forenoon to two o'clock in the afternoon except Satur- 10 days, Sundays and holidays. 11 § 9-008. Section 904 of the county law, as amended by chapter 655 of 12 the laws of 1978, is amended to read as follows: 13 § 904. Court and trust fund register and liability of officers. The 14 county clerks of the counties comprising the city of New York and the 15 Richmond county clerk shall perform the same duties and shall be subject 16 to the same penalties imposed by the provisions of this chapter upon 17 other county clerks of the state with relation to court and trust fund 18 registers and the delivery of property or moneys to the commissioner of 19 finance in pursuance of any judgment, decree or order of a court of 20 record of this state. 21 § 9-009. The county law is amended by adding a new section 905-a to 22 read as follows: 23 § 905-a. Liability for loss of court and trust funds in the city of 24 Staten Island. The officer responsible for collection and management of 25 public funds for the city of Staten Island and such officer's surety or 26 sureties shall be liable in the same manner as county treasurers are 27 made liable under the provisions of this chapter for the loss of court 28 and trust funds. 29 § 9-010. The county law is amended by adding a new section 906-a to 30 read as follows: 31 § 906-a. Liability of city of Staten Island for loss of court and 32 trust funds. The city of Staten Island shall be responsible for all 33 property or moneys deposited with the officer responsible for collection 34 and management of public funds for the city of Staten Island by virtue 35 of any judgment, decree or order of a court of record in this state 36 provided, however, that the city shall not be held liable for any loss 37 due to the depreciated value of an investment legal at the time of its 38 purchase and which continued to be a legal investment during the period 39 of the trust. An action to recover any loss to or of such fund may be 40 brought against the city by any party aggrieved or by the state comp- 41 troller in a court of competent jurisdiction. 42 § 9-011. The county law is amended by adding a new section 931-a to 43 read as follows: 44 § 931-a. Employees of the district attorney of the county of Rich- 45 mond. The district attorney of Richmond county is vested with the power 46 to appoint any person to any position for which there is now provision 47 by appropriation or which shall hereafter be established. All positions 48 in the district attorney's office of Richmond county for which there is 49 now provision by appropriation shall be continued, except that the mayor 50 of the city of Staten Island may with the consent of the district attor- 51 ney increase or decrease the number of positions and the term, grade, 52 salary and compensation of any position. 53 § 9-012. The county law is amended by adding a new section 944 to read 54 as follows: 55 § 944. Applicability of article to the county of Richmond. For the 56 purposes of continuing the application of this article within the cityS. 8474 111 1 of Staten Island on and after the date of establishment of the city of 2 Staten Island, the county of Richmond shall be deemed to continue as a 3 county within the city of New York for the purposes of exercising those 4 powers and duties devolved upon said county of Richmond pursuant to this 5 article. 6 § 9-013. Subdivision 2 and paragraphs (a) and (c) of subdivision 3 of 7 section 9-124 of the election law, subdivision 2 as amended by chapter 8 437 of the laws of 2019, paragraphs (a) and (c) of subdivision 3 as 9 amended by chapter 481 of the laws of 2023, are amended to read as 10 follows: 11 2. Each box, envelope, or container containing the ballots and stubs, 12 if any, and all items described in subdivision one of this section shall 13 be deposited by an inspector designated for that purpose with the offi- 14 cer or board from whom or which the board of inspectors received it. In 15 the city of New York and the city of Staten Island, every such box, 16 envelope, or container shall be delivered at the polling place to police 17 or peace officers designated by the police commissioner of such [city] 18 cities, who shall deposit them with the appropriate board of elections. 19 (a) Except in the city of New York or the city of Staten Island, the 20 registration poll records or computer generated registration lists, the 21 returns of canvass with results tapes and tally sheets, if any, annexed, 22 the voted ballots, stubs, opened packages of unused ballots and ballot 23 envelopes, any early mail, absentee, military, special federal, or 24 special presidential ballots which may have been delivered to the poll 25 site during election day, the challenge report records, keys and the 26 package of protested and void ballots shall be filed with the appropri- 27 ate board of elections. 28 (c) In the city of New York and the city of Staten Island, the board 29 of inspectors shall deliver to police or peace officers designated by 30 the police commissioner of such [city] cities, at the polling place the 31 registration poll records or computer generated registration lists, 32 challenge report, records, keys, other election supplies, including two 33 copies of the returns of the canvass and any early mail, absentee, mili- 34 tary, special federal, or special presidential ballots which may have 35 been delivered to the poll site during election day, voted ballots, 36 stubs, open packages of unused ballots and ballot envelopes. Such police 37 or peace officers shall file the returns, the package of void and 38 protested ballots, if any, and the early mail, absentee, military, 39 special federal, or special presidential ballots which may have been 40 delivered to the poll site during election day; and emergency ballots, 41 stubs and ballot envelopes, if any, within twenty-four hours after the 42 close of the polls, in the office of the appropriate board of elections 43 or its branch office within the borough, as the case may be. 44 § 9-014. Subdivision 3 of section 9-124 of the election law is amended 45 by adding a new paragraph (d) to read as follows: 46 (d) In the city of Staten Island the board of inspectors, shall deliv- 47 er to the police or peace officer at the polling place the registration 48 poll records or computer generated registration lists, challenge report, 49 records, keys, the flag, other election supplies, the returns of the 50 canvass and the absentee and military, special federal, special presi- 51 dential and emergency ballots, stubs and ballot envelopes. The police 52 or peace officer shall file the returns, the package of void, protested 53 and wholly blank ballots, if any, and the absentee and military, special 54 federal, special presidential and emergency ballots, stubs and ballot 55 envelopes, if any, within twenty-four hours after the close of the 56 polls, in the office of the board of elections.S. 8474 112 1 § 9-015. Section 88-b of the state finance law, as added by chapter 13 2 of the laws of 1987, subdivisions 2 and 6 as amended by chapter 65 of 3 the laws of 1988, is amended to read as follows: 4 § 88-b. Suburban transportation fund. 1. There is hereby established 5 in the joint custody of the commissioner of taxation and finance and the 6 comptroller a fund to be known as the "suburban transportation fund". 7 2. The suburban transportation fund shall consist of moneys from the 8 commuter railroad account of the metropolitan transportation authority 9 special assistance fund required to be paid by such authority to the 10 suburban transportation fund pursuant to subdivision three of section 11 twelve hundred seventy-a of the public authorities law and any moneys 12 from the metropolitan transportation authority Dutchess, Orange and 13 Rockland fund transferred pursuant to subdivision four of section twelve 14 hundred seventy-a of the public authorities law. 15 3. Moneys in the suburban transportation fund shall be kept separate 16 from and shall not be commingled with any other moneys in the custody of 17 the commissioner of taxation and finance and the comptroller. All depos- 18 its of such money shall, if required by the comptroller, be secured by 19 obligations of the United States or of the state of market value equal 20 at all times to the amount of the deposit and all banks and trust compa- 21 nies are authorized to give such securities for such deposits. 22 4. Moneys of the fund shall be made available for financing any of the 23 following types of capital projects within the counties comprising the 24 metropolitan commuter transportation district, except those counties 25 comprising the city of New York or the city of Staten Island, but only 26 to the extent that such projects are on an adopted transportation plan 27 and approved by a designated transportation coordinating committee, if 28 one exists, or by the metropolitan planning organization as created 29 pursuant to section fifteen-a of the transportation law if no designated 30 transportation coordinating committee exists: capacity and infrastruc- 31 ture improvements to state, county, town, city, village roads, highways, 32 parkways and bridges; or state, county, town, city or village mass 33 transportation projects; provided, however, that in Nassau and Suffolk 34 counties such moneys shall be available only for capacity improvements 35 to state roads, highways, parkways and bridges. The amount of state 36 funds historically appropriated statewide, other than bond funds, for 37 transportation capital purposes from other sources shall not be reduced 38 because of the availability of such moneys made available pursuant to 39 this chapter, nor shall such moneys be used to match federal aid. Prior 40 to the allocation of state advance funds appropriated pursuant to this 41 section, the municipality responsible for the project shall certify to 42 the commissioner of transportation that the amount of funds appropriated 43 for transportation capital purposes by that municipality shall not be 44 reduced because of the availability of such state advance funds, and 45 that such moneys shall not be used to match federal aid. 46 The designated transportation coordinating committee, if one exists, 47 or the metropolitan planning organization if no designated transporta- 48 tion coordinating committee exists, shall notify the municipalities 49 within its jurisdiction of which projects it has approved. 50 5. In the event that any county withdraws from the metropolitan commu- 51 ter transportation district, the withdrawing county shall pay to the 52 state comptroller any amount that is required so that the state is fully 53 reimbursed for funds advanced in anticipation of reimbursement from the 54 suburban transportation fund. In the event that any withdrawing county 55 shall fail to make a payment pursuant to this subdivision, the state 56 comptroller shall withhold and pay to the capital projects fund anS. 8474 113 1 amount equal to the amount owed from the next general or specific state 2 aid payment and scheduled to be paid to that county. 3 6. Moneys in the suburban transportation fund transferred pursuant to 4 section twelve hundred seventy-a of the public authorities law shall be 5 made available to the state department of transportation for capital 6 projects in the counties of Nassau, Suffolk, Westchester, Putnam, Dutch- 7 ess, Orange and Rockland on the basis of each county's average pro rata 8 share of the mortgage recording tax receipts raised in such counties 9 pursuant to subdivision one of section two hundred sixty-one of the tax 10 law during the period January first, nineteen hundred eighty-four 11 through December thirty-first, nineteen hundred eighty-six as certified 12 by the metropolitan transportation authority. Moneys transferred to the 13 suburban transportation fund at the request of Dutchess, Orange or Rock- 14 land county pursuant to subdivision three of section twelve hundred 15 seventy-b of the public authorities law shall be used by the state 16 department of transportation to increase the proportionate share of such 17 capital projects in such county. Such projects shall be financed by 18 means of a state advance to be reimbursed by the New York state thruway 19 authority, or its successor agency, through the issuance of its bonds or 20 notes in the manner set forth in subdivision seven of this section, or 21 by means of a state advance to be reimbursed directly from the suburban 22 transportation fund. 23 7. (a) For projects funded by the suburban transportation fund, the 24 state department of transportation may enter into an agreement with the 25 New York state thruway authority, or its successor agency, for the 26 purpose of having the thruway authority, or its successor agency, issue 27 bonds or notes to pay the capital costs of such project. Such agreement 28 shall be subject to approval by the director of the division of the 29 budget. 30 (b) For projects funded pursuant to this subdivision, the affected 31 municipality shall enter into an agreement with the department of trans- 32 portation for the conveyance of all affected real property including 33 highways, roads and bridges to the thruway authority, or its successor 34 agency, for the term of the bonds or notes issued by the thruway author- 35 ity, or its successor agency, for such project or for such lesser period 36 that such bonds or notes are outstanding. During the period of such 37 conveyance to the thruway authority, or its successor agency, the 38 department of transportation or the municipality shall agree to maintain 39 the facility in a state of good repair, the responsibility for which 40 shall be with the state, or municipality, which had jurisdiction over 41 said facility prior to such agreement. 42 (c) Upon the final retirement of all bonds and notes issued by the 43 thruway authority, or its successor agency, for such purpose, such prop- 44 erty shall automatically revert to the conveying entity. 45 8. Payments to the thruway authority, or its successor agency, pursu- 46 ant to this section shall be subject to appropriation from the suburban 47 transportation fund. The thruway authority, or its successor agency, 48 shall utilize such moneys to pay the debt service on such bonds or notes 49 and to meet administrative costs in connection therewith. 50 § 9-016. Section 2302 of the surrogate's court procedure act, as 51 amended by chapter 460 of the laws of 1999, is amended to read as 52 follows: 53 § 2302. Award of costs and allowances 54 1. Upon a motion the court may award costs to any party in such 55 amount as it determines not exceeding $20 to each party, except in coun-S. 8474 114 1 ties within the City of New York and in the city of Staten Island, where 2 such amount shall not exceed $40. 3 2. Upon rendering a decree or in granting or denying an application 4 to vacate a decree the court may award as costs such sum as it deems 5 reasonable to the petitioner and to any other party who has succeeded in 6 whole or in part in a contest or whose attorney, in the absence of a 7 contest, has rendered services of substantial benefit to him, her or it, 8 or to the estate, not exceeding 9 (a) in counties within the City of New York and in the city of Staten 10 Island: 11 (i) $100 where there has not been a contest, or 12 (ii) $300 where there has been a contest and $300 for each day, less 13 one, necessarily occupied in the trial or hearing and in addition $100 14 for each day necessarily occupied in preparing therefore and $100 addi- 15 tional if a motion for a new trial is granted. 16 (b) in all other counties: 17 (i) $50 where there has not been a contest, or 18 (ii) $150 where there has been a contest and $150 for each day, less 19 one, necessarily occupied in the trial or hearing and in addition $50 20 for each day necessarily occupied in preparing therefore and $50 addi- 21 tional if a motion for a new trial is granted. 22 3. In a contested probate proceeding: 23 (a) Costs payable out of the estate or otherwise may be awarded (1) to 24 an unsuccessful contestant only if he, she or it be a guardian ad litem 25 or guardian, committee or conservator of a person under disability; (2) 26 to an unsuccessful proponent named as executor in the will when 27 propounded by him, her or it in good faith as the last will of the dece- 28 dent; and (3) to a person named as executor in a prior will on file in 29 the court that is not admitted to probate when such person participates 30 in the proceeding in good faith. Such nominated executor, guardian ad 31 litem, guardian, committee or conservator, whether successful or not may 32 be awarded costs and an allowance in such sum as the court deems reason- 33 able for his, her or its counsel fees and other expenses incurred in the 34 contest or attempt to sustain the will. The court may direct that such 35 costs and allowances in whole or in part be payable by an unsuccessful 36 contestant except that an award of the successful proponent's counsel's 37 fees may only be allowed where the court finds that the contest was 38 brought in bad faith or was frivolous. 39 (b) Either before or after the decree granting probate the court may 40 order that a copy of the minutes of the trial be furnished to a contes- 41 tant for the purposes of appeal and charge the expense thereof initially 42 to the estate if satisfied that the contest is in good faith. If the 43 contestant be unsuccessful upon the appeal and he, she or it is not the 44 guardian of an infant, the committee of an incompetent, the conservator 45 of a conservatee or a guardian ad litem he, she or it shall refund to 46 the estate any amount so paid by the estate for the minutes. 47 4. In a proceeding for probate of a will when the public administra- 48 tor or county treasurer has been directed to probate a will or continue 49 the proceedings for the probate thereof, the court may award to either 50 of them such sum as it deems reasonable for his, her or its counsel fees 51 and other expenses necessarily incurred therein. 52 5. After appeal, pursuant to the direction of the appellate court the 53 court may award a fiduciary such sum as it deems reasonable for counsel 54 fees and other expenses necessarily incurred on the appeal. 55 6. In a proceeding to construe a will or after appeal in such a 56 proceeding, pursuant to the direction of the appellate court the courtS. 8474 115 1 may award to a fiduciary or any party to the proceeding such sum as it 2 deems reasonable for his, her or its counsel fees and other expenses 3 necessarily incurred in the proceeding or on the appeal. 4 7. Upon a final or intermediate judicial settlement a fiduciary may 5 be awarded for his, her or its expenses and counsel fees such sum as the 6 court deems reasonable not exceeding: 7 (a) within the counties of the City of New York and in the city of 8 Staten Island: $100 for each day necessarily occupied in preparing the 9 account and in drawing, entering and executing the decree. Any sum so 10 awarded may be in addition to any costs, allowances or commissions 11 otherwise authorized and awarded by the court. 12 (b) in all other counties: $ 50 for each day necessarily occupied in 13 preparing the account and in drawing, entering and executing the decree. 14 Any sum so awarded may be in addition to any costs, allowances or 15 commissions otherwise authorized and awarded by the court. 16 8. In a proceeding for disposition of real property a fiduciary may 17 be awarded out of the proceeds of sale his, her or its commissions and 18 such sum as the court deems reasonable for counsel fees and expenses 19 necessarily incurred in the proceeding. 20 § 9-017. The general municipal law is amended by adding a new section 21 929 to read as follows: 22 § 929. City of Staten Island industrial development agency. (a) 23 Legislative intent. It is the policy and intent of the city of Staten 24 Island to promote the economic welfare of its inhabitants and to active- 25 ly promote, attract, encourage and develop economically sound commerce 26 and industry through governmental action for the purpose of preventing 27 unemployment and economic deterioration by the creation of a city of 28 Staten Island industrial development agency. It is recognized that the 29 viability and integrity of the residential communities in the city of 30 Staten Island should be protected and maintained so that no person be 31 deprived of his or her place of residence by any condemnation for 32 economic or industrial development undertaken pursuant to this article. 33 (b) For the purpose of this section "city" means the city of Staten 34 Island. 35 (c) For the benefit of the city and the inhabitants thereof an indus- 36 trial development agency, to be known as the city of Staten Island 37 industrial development agency, is hereby established for the accomplish- 38 ment of any or all of the purposes specified in title one of this arti- 39 cle, except that it shall not have the power to construct or rehabili- 40 tate any residential facility or housing of any nature and kind 41 whatsoever, nor shall it use any of its funds to further the 42 construction or rehabilitation of any residential facility or housing of 43 any nature and kind whatsoever. It shall constitute a body corporate 44 and politic, and be perpetual in duration. It shall only have the 45 powers and duties conferred by title one of this article upon industrial 46 development agencies as of January first, nineteen hundred seventy-three 47 except it shall not have the power of condemnation. In the exercise of 48 the powers conferred upon such agency with respect to the acquisition of 49 real property by this article such agency shall be limited to the 50 geographical jurisdictional limits of the city. 51 (d) It shall be organized in a manner prescribed by and be subject to 52 the provisions of title one of this article, except that its board shall 53 consist of ten members. Among its membership shall be the city comp- 54 troller, the city commissioner of economic development, the corporation 55 counsel of such city and the director of the city planning commission of 56 such city, each of whom shall have the power to designate an alternateS. 8474 116 1 to represent them at board meetings with all the rights and powers, 2 including the right to vote, reserved to all board members, provided 3 that such designation be in writing to the chairperson of the board. 4 The remaining six members shall be appointed by the mayor of such city. 5 (e) The mayor shall designate the chairperson of the board, who shall 6 serve at the pleasure of the mayor. 7 (f) The terms of the directors first appointed by the mayor, other 8 than the chairperson of the board shall be as follows: 9 (1) two shall serve for terms of one year each; 10 (2) two shall serve for terms of two years each; 11 (3) two shall serve for terms of three years each, thereafter the 12 successors of all such directors shall serve for terms of three years 13 each. The mayor shall fill any vacancy which may occur by reason of 14 death, resignation, or otherwise in a manner consistent with the 15 original appointment. Members may be removed by the mayor for cause 16 after a hearing upon ten days' written notice. Such members shall 17 receive no compensation for their services but shall be entitled to the 18 necessary expenses, including traveling expenses, incurred in the 19 discharge of their duties. 20 (g) The chief executive officer of the agency shall be appointed by a 21 two-thirds vote of the board of directors. 22 (h) The agency, its members, officers, and employees, shall be 23 subject to article fourteen of the civil service law and for all such 24 purposes the agency shall be deemed the "public employer" and its 25 members, officers and employees shall be deemed "public employees". 26 (i) The city shall have the power to make, or contract to make grants 27 or loans including, but not limited to grants or loans of money, to the 28 agency in such amounts, upon such terms and conditions and for such 29 period or periods of time as in the judgment of the city and the agency 30 are necessary or appropriate for the accomplishment of any of the 31 purposes of the agency. 32 (j) The city shall have the power to condemn property for transfer to 33 the city of Staten Island industrial development agency under title one 34 of this article upon the request of two-thirds of the members of the 35 board of directors of the city of Staten Island industrial development 36 agency. No property shall be condemned on behalf of the agency which is 37 zoned "residential" as defined in the zoning resolution of the city, if 38 any, or which is occupied in whole or in part as a dwelling or resi- 39 dence. 40 (k) For the purpose of this section "governing body" as used in title 41 one of this article shall mean the mayor of the city. Except as other- 42 wise provided in this section, the agency, its members, officers and 43 employees, and its operations and activities shall be governed by the 44 provisions of title one of this article. 45 (l) The city shall save harmless and indemnify any person who is 46 serving or has served as a director or officer or as employee of the 47 city of Staten Island industrial development agency against any finan- 48 cial loss arising out of or in connection with any claim, demand, suit 49 or judgment, based on a cause of action involving allegations that pecu- 50 niary harm was sustained by any person as a result of any transaction, 51 act or omission to act of the city of Staten Island industrial develop- 52 ment agency or of any action or inaction or vote of any director, offi- 53 cer or employee of such agency unless such individual is found by a 54 final judicial determination not to have acted in good faith for a 55 purpose such individual reasonably believed to be in the best interests 56 of the agency or not to have had reasonable cause to believe that suchS. 8474 117 1 conduct was lawful. Provided, however, that such individual must trans- 2 mit to the corporation counsel of the city of Staten Island any notice 3 of claim, summons or complaint or other analogous paper served on such 4 individual within ten days of its receipt unless prevented from doing so 5 by compelling circumstances. The corporation counsel shall, without 6 charge, represent any such individual unless unable to do so by reason 7 of conflict of interest. In the event that the corporation counsel is 8 unable to give such representation, the city of Staten Island shall 9 indemnify the individual for any reasonable litigation expense incurred 10 by such individual. 11 § 10-001. Legislative findings. It is the intention of the legisla- 12 ture that the incorporation of the city of Staten Island shall not alter 13 the existing landlord-tenant relationships within such city and that the 14 state and local laws regulating landlord-tenant relationships such as 15 legal regulated rents, maximum rents and tenancy issues shall continue 16 to provide such regulation until superseded by state law or local law of 17 the city of Staten Island and in accordance with such intent, such laws 18 and regulations are hereby continued. It is further provided that all 19 real property tax exemptions provided under article 4 of the real prop- 20 erty tax law shall be continued as shall all rent regulations and other 21 regulations and duties imposed on the owners of property receiving 22 exemptions pursuant to such article until superseded by state law or 23 local law of the city of Staten Island. 24 § 10-002. Section 1 of chapter 21 of the laws of 1962, constituting 25 the local emergency housing rent control act, is amended by adding a new 26 subdivision 2-a to read as follows: 27 2-a. Applicability. For the purposes of this act, a city which is 28 incorporated on or after the first of January next succeeding the date 29 on which this subdivision shall have become a law and which is comprised 30 of a geographical area with respect to which provisions of this act were 31 in effect on the date immediately prior to such incorporation and which 32 city had been wholly contained within a city with a population of one 33 million or more shall continue to be treated as a city with a population 34 of one million or more. 35 § 10-003. Section 4 of section 4 of chapter 576 of the laws of 1974, 36 constituting the emergency tenant protection act of nineteen seventy- 37 four, is amended by adding a new subdivision f to read as follows: 38 f. In the city of Staten Island, the rent guidelines board shall be 39 the rent guidelines board established pursuant to the local law enacted 40 as a successor to the New York city rent stabilization law of nineteen 41 hundred sixty-nine and provided with such powers under such local law. 42 § 10-004. Subdivision b of section 14 of section 4 of chapter 576 of 43 the laws of 1974, constituting the emergency tenant protection act of 44 nineteen seventy-four, is relettered subdivision c and a new subdivision 45 b is added to read as follows: 46 b. in the city of Staten Island; provided that for the purposes of 47 this act, the city of Staten Island shall continue to be treated as a 48 city with a population of one million or more and the reference to any 49 local law applicable to the geographical area of such city prior to its 50 incorporation shall refer to the appropriate successor legislation 51 enacted by the city of Staten Island; and 52 § 10-005. The section heading and subdivision 8 of section 352-eeee of 53 the general business law, as amended by section 1 of part N of chapter 54 36 of the laws of 2019, are amended to read as follows: 55 Conversions to cooperative or condominium ownership in the city of New 56 York or in the city of Staten Island.S. 8474 118 1 8. The provisions of this section shall only be applicable in the city 2 of New York and the city of Staten Island. 3 § 10-006. Section 467-b of the real property tax law is amended by 4 adding a new subdivision 14 to read as follows: 5 14. For the purposes of this section, the city of Staten Island shall 6 continue to be treated as a city with a population of one million or 7 more and any reference to a local law enacted pursuant to the local 8 emergency housing rent control act shall also refer to the successor 9 local law enacted by the city of Staten Island. 10 § 10-007. The real property tax law is amended by adding a new section 11 498 to read as follows: 12 § 498. City of Staten Island. For the purposes of this article, the 13 city of Staten Island shall continue to be treated as a city with a 14 population of one million or more and the reference to any local law 15 applicable to the geographical area of such city prior to its incorpo- 16 ration shall be deemed to refer to the appropriate successor legislation 17 enacted by the city of Staten Island. 18 § 10-008. Applicability. It is the intention of the legislature that 19 the state and local laws regulating landlord-tenant relationships such 20 as legal regulated rents, maximum rents and tenancy issues shall contin- 21 ue to provide such regulation; provided, however, that within one 22 hundred twenty days after the date of establishment of the city of 23 Staten Island, the common council of such city must make a determination 24 of whether or not a public emergency exists requiring the continuation 25 of such regulations. 26 § 11-001. Legislative findings. The legislature recognizes that the 27 formation of the city of Staten Island was not contemplated in the 28 establishment of the constitutional real property tax limitations. To 29 the greatest extent practicable, the establishment of the city of Staten 30 Island is formulated to preserve existing local laws, regulations and 31 instrumentalities of government to preserve the status quo and prevent a 32 disruption of government injurious to the public good. 33 The unique factor which determined the establishment of the constitu- 34 tional real property tax limits for the city of New York was the inclu- 35 sion of counties wholly within the city with the city assuming the 36 responsibilities and expenditures for functions normally exercised by 37 the counties in areas outside the city of New York. Staten Island will 38 now share this unique factor with New York city, as the county of Rich- 39 mond is wholly contained within the city of Staten Island. 40 Real property located in cities outside the city of New York is 41 subject to a real property tax limit of four percent, of which two 42 percent is city tax and two percent is county tax. Real property located 43 within New York city is subject to a more restrictive real property tax 44 limit of two and one-half percent, all of which is city tax. County real 45 property tax is not permitted within the city of New York. 46 The people of the city of Staten Island and county of Richmond and the 47 New York state legislature have adopted a charter for the city of Staten 48 Island which continues the New York city form of government placing 49 governmental responsibility on the city rather than the county. The 50 county of Richmond has not assumed new responsibilities justifying an 51 interpretation of the constitutional real property tax limits which 52 would permit the county of Richmond to impose a real property tax. Like- 53 wise the maintenance of the New York city form of government with the 54 usual county responsibilities being a function of city government when 55 combined with the prohibition of a county real property tax, requires anS. 8474 119 1 interpretation providing a city real property tax limit of two and one- 2 half percent for the city of Staten Island. 3 Therefore the legislature finds and declares that the existing more 4 restrictive real property tax limits for real property located within 5 the county of Richmond remain in effect, providing a city real property 6 tax limit of two and one-half percent for the city of Staten Island and 7 prohibiting the imposition of a real property tax by the county of Rich- 8 mond. 9 § 12-001. Subdivision (a) of section 1107 of the tax law, as amended 10 by section 1 of part C of chapter 407 of the laws of 1999, is amended to 11 read as follows: 12 (a) General. On the first day of the first month following the month 13 in which a municipal assistance corporation is created under article ten 14 of the public authorities law for a city of one million or more, in 15 addition to the taxes imposed by sections eleven hundred five and eleven 16 hundred ten, there is hereby imposed on such date, within the territo- 17 rial limits of such city (including, in the case of the municipal 18 assistance corporation for the city of New York, the city of Staten 19 Island), and there shall be paid, additional taxes, at the rate of four 20 percent, which except as provided in subdivision (b) of this section, 21 shall be identical to the taxes imposed by sections eleven hundred five 22 and eleven hundred ten. Such sections and the other sections of this 23 article, including the definition and exemption provisions, shall apply 24 for purposes of the taxes imposed by this section in the same manner and 25 with the same force and effect as if the language of those sections had 26 been incorporated in full into this section and had expressly referred 27 to the taxes imposed by this section. 28 § 12-002. Subdivision (c) of section 1107 of the tax law, as amended 29 by chapter 588 of the laws of 2000, is amended to read as follows: 30 (c) Tax on sale of service of parking, garaging or storing of motor 31 vehicles. On the first day of the first month following the month in 32 which a municipal assistance corporation is created under article ten of 33 the public authorities law for a city of one million or more, in addi- 34 tion to the taxes imposed by sections eleven hundred five, eleven 35 hundred ten and subdivision (a) of this section, there is hereby imposed 36 on such date, within the territorial limits of such city (including, in 37 the case of the municipal assistance corporation for the city of New 38 York, the city of Staten Island), and there shall be paid, additional 39 taxes at the rate of six percent on receipts from every sale of the 40 service of providing parking, garaging or storing for motor vehicles by 41 persons operating a garage (other than a garage which is part of prem- 42 ises occupied solely as a private one or two family dwelling), parking 43 lot or other place of business engaged in providing parking, garaging or 44 storing of motor vehicles provided, however, that this subdivision shall 45 not apply to such facilities owned and operated by such city or an agen- 46 cy or instrumentality of such city or a public corporation the majority 47 of whose members are appointed by the chief executive officer of such 48 city or the legislative body of such city or both of them; provided, 49 however, that receipts for such services paid to a homeowner's associ- 50 ation by its members or receipts paid by members of a homeowner's asso- 51 ciation to a person leasing the parking facility from the homeowner's 52 association shall not be subject to the tax imposed by this subdivision. 53 For purposes of this subdivision, a homeowner's association is an asso- 54 ciation (including a cooperative housing or apartment corporation) (i) 55 the membership of which is comprised exclusively of owners or residents 56 of residential dwelling units, including owners of units in a condomin-S. 8474 120 1 ium, and including shareholders in a cooperative housing or apartment 2 corporation, where such units are located in a defined geographical area 3 such as a housing development or subdivision; and (ii) which owns or 4 operates a garage, parking lot or other place of business engaged in 5 providing parking, garaging or storing for motor vehicles located in 6 such area for use (whether or not exclusive) by such owners or resi- 7 dents. All provisions set forth in this article applicable to the taxes 8 imposed under section eleven hundred five, including the definition and 9 exemption provisions of this article, shall apply with respect to a tax 10 imposed under this subdivision, except as to rate and except as other- 11 wise provided herein. The transitional provisions contained in section 12 eleven hundred six shall not apply to the taxes imposed by this section. 13 § 12-003. Intentionally omitted. 14 § 12-004. Section 1210 of the tax law is amended by adding two new 15 subdivisions (k) and (l) to read as follows: 16 (k) In the case of the municipal assistance corporation for the city 17 of New York the power of the city of Staten Island to adopt and amend 18 local laws, ordinances or resolutions imposing taxes pursuant to the 19 authority of such section shall, notwithstanding any provisions of arti- 20 cle twenty-nine of this chapter to the contrary, be suspended until all 21 the notes and bonds of such municipal assistance corporation shall have 22 been fully paid and discharged together with interest on unpaid install- 23 ments of interest. 24 (l) Notwithstanding the provisions of subdivision (k) of this section, 25 the city of Staten Island is hereby authorized and empowered to adopt 26 and amend local laws, imposing taxes, at a rate not to exceed two 27 percent on the receipts of sales from the services of laundering, dry- 28 cleaning, tailoring, weaving, pressing, shoe repairing and shoe shining, 29 and charges to a patron for admission to, or use of, facilities for 30 sporting activities in which the patron is to be a participant such as 31 bowling alleys and swimming pools. Such taxes shall be administered, 32 collected and distributed by the state tax commission as provided in 33 subpart B of part three and in part four of this article. 34 § 12-005. Subdivisions 3 and 4 of section 92-d of the state finance 35 law, subdivision 3 as amended by section 4 of part A of chapter 88 of 36 the laws of 2000 and subdivision 4 as amended by section 11 of part SS1 37 of chapter 57 of the laws of 2008, are amended to read as follows: 38 3. The taxes, interest and penalties imposed, pursuant to sections 39 eleven hundred seven or eleven hundred eight (as the case may be) of the 40 tax law within the territorial limits of a city in aid of which a munic- 41 ipal assistance corporation has been created (including, in the case of 42 the municipal assistance corporation for the city of New York, the city 43 of Staten Island), and received by the commissioner of taxation and 44 finance, after deducting the amount which the commissioner of taxation 45 and finance shall determine to be necessary for reasonable costs of the 46 commissioner of taxation and finance in administering, collecting and 47 distributing such taxes, shall be appropriated (i) to the municipal 48 assistance corporation which has been created in aid of such city in 49 order to enable such corporation to fulfill the terms of any agreements 50 made with the holders of its notes and bonds and to carry out its corpo- 51 rate purposes, including the maintenance of the capital reserve fund, 52 and (ii) the balance, if any, to the city in aid of which such corpo- 53 ration has been created, or to a public benefit corporation to which the 54 tax may be otherwise payable pursuant to law, as hereinafter provided. 55 Notwithstanding the provisions of this subdivision, in the case of the 56 municipal assistance corporation for the city of New York, such balance,S. 8474 121 1 if any, shall be divided between the city of New York and the city of 2 Staten Island and paid, as hereinafter provided. 3 4. On or before the twelfth day of each month, the commissioner of 4 taxation and finance shall certify to the comptroller the amount of all 5 revenues so received during the prior month as a result of the taxes, 6 interest and penalties so imposed and in addition on or before the last 7 day of June the commissioner shall certify the amount of such revenues 8 received during and including the first twenty-five days of June. In 9 the case of the municipal assistance corporation for the city of New 10 York, the commissioner of taxation and finance shall certify separately 11 the amounts of such revenues received from within the territorial limits 12 of the city of New York and the territorial limits of the city of Staten 13 Island. The amount of revenues so certified shall be deposited by the 14 comptroller in the municipal assistance tax fund and the amount attrib- 15 utable to the taxes, interest and penalties imposed within the territo- 16 rial limits of a city in aid of which a municipal assistance corporation 17 has been created including, in the case of the municipal assistance 18 corporation for the city of New York, the city of Staten Island shall be 19 credited to a special account established in such fund for such corpo- 20 ration. Notwithstanding the foregoing provisions, the commissioner of 21 taxation and finance may prorate revenue attributable to the first or 22 last quarterly return period during which the taxes imposed by section 23 eleven hundred seven or eleven hundred eight (as the case may be) of the 24 tax law apply so as to separate from the revenue collected for that 25 quarter pursuant to such taxes the revenue collected pursuant to local 26 legislation adopted by a city pursuant to section twelve hundred ten or 27 twelve hundred twelve-A of the tax law. Such a proration by the commis- 28 sioner of taxation and finance shall be made on the basis of the ratio 29 of the number of months during which such taxes were imposed during such 30 quarterly return period to the total number of months in such quarterly 31 return period when such proration is reasonably necessary to ascertain 32 the amount of such money which must be deposited by the comptroller in 33 such special account and the amount of such money which must be deposit- 34 ed pursuant to section twelve hundred sixty-one of the tax law. The 35 commissioner of taxation and finance shall not be held liable for any 36 inaccuracy in any certification under this subdivision. 37 § 12-006. Subdivision 6 of section 92-d of the state finance law, as 38 amended by section 4 of part A of chapter 88 of the laws of 2000, is 39 amended to read as follows: 40 6. Upon receipt by the comptroller of a certificate or certificates 41 from the [chairman] chairperson of a municipal assistance corporation 42 that such corporation requires a payment or payments in order to comply 43 with any agreement with the holders of its notes and bonds and to carry 44 out its corporate purposes, including the maintenance of the capital 45 reserve fund, from the special account established for such corporation, 46 each of which certificates shall specify the required payment or 47 payments and the date when the payment or payments is required, the 48 comptroller shall pay from such special account on or before the speci- 49 fied date or within thirty days after such receipt, whichever is later, 50 to such corporation, as the [chairman] chairperson thereof may direct in 51 any such certificate, the amount or amounts so certified. In the case 52 of the municipal assistance corporation for the city of New York, each 53 amount so paid shall be comprised of revenues attributable to receipts 54 from both the city of New York and the city of Staten Island in the same 55 proportion that such revenues were received during the period covered by 56 each such certification. The [chairman] chairperson of such corporationS. 8474 122 1 shall furnish the commissioner of taxation and finance with copies of 2 such certificates. The comptroller shall from time to time, but in no 3 event later than the fifteenth day of October, January and April and the 4 last day of June of each fiscal year, pay over and distribute to the 5 chief fiscal officer of the city in aid of which such municipal assist- 6 ance corporation has been created to be paid into the treasury of such 7 city to the credit of the general fund, or pay over and distribute to a 8 public benefit corporation to which the tax may otherwise be payable 9 pursuant to law, all revenues in the special account established for 10 such corporation in the municipal assistance tax fund, if any, in excess 11 of the aggregate amount which the [chairman] chairperson of such corpo- 12 ration has certified to the comptroller and which has been previously 13 appropriated and paid to such corporation as hereinabove authorized. 14 Notwithstanding the provisions of this subdivision, in the case of the 15 municipal assistance corporation for the city of New York, the comp- 16 troller shall from time to time, but in no event later than the 17 fifteenth of October, January, and April and the last day of June of 18 each fiscal year, (a) apportion between the city of New York and the 19 city of Staten Island the revenues, if any, in the special account 20 established for such corporation in the municipal assistance tax fund on 21 the basis of the locus of their receipt and (b) pay over and distribute 22 to the chief fiscal officers of such cities to pay into their respective 23 treasuries to the credit of the general fund all such respective reven- 24 ues in excess of the aggregate amount which the chairperson of such 25 corporation has certified to the comptroller and which has been previ- 26 ously appropriated and paid to such corporation as hereinabove author- 27 ized. In no event shall the comptroller pay over and distribute any 28 revenues (other than the amount to be deducted for administering, 29 collecting and distributing such sales and compensating use taxes) to 30 any person other than the municipal assistance corporation unless and 31 until the aggregate of all payments certified to the comptroller as 32 required by such corporation as of such date in order to comply with its 33 agreements with the holders of its notes and bonds and to carry out its 34 corporate purposes, including the maintenance of the capital reserve 35 fund, which remain unappropriated or unpaid to such corporation shall 36 have been appropriated to such corporation and shall have been paid in 37 full; provided, however, that no person, including such corporation or 38 the holders of its notes or bonds shall have any lien on such revenues 39 and such agreement shall be executory only to the extent of such reven- 40 ues available to the state in such special account. On the day on which 41 the comptroller pays over and distributes to the chief fiscal officer of 42 such city or cities any revenues from such special account the commis- 43 sioner of taxation and finance shall certify to the comptroller the 44 amount to be deducted for administering, collecting and distributing the 45 tax imposed pursuant to section eleven hundred seven or eleven hundred 46 eight (as the case may be) of the tax law within the territorial limits 47 of such city or cities since he or she last certified such amount and 48 the comptroller shall pay such amount into the general fund of the state 49 treasury to the credit of the state purposes fund therein. 50 § 12-007. Subdivision 3 of section 92-e of the state finance law, as 51 amended by chapter 187 of the laws of 1995, is amended to read as 52 follows: 53 3. Such amounts, including per capita aid apportioned to a city in aid 54 of which a municipal assistance corporation has been created (including, 55 in the case of the municipal assistance corporation for the city of New 56 York, the city of Staten Island), shall be deposited by the comptrollerS. 8474 123 1 to the credit of the special account established for the municipal 2 assistance corporation which has been created in aid of such city in 3 order to enable such corporation to fulfill the terms of any agreements 4 made with the holders of its notes and bonds and to carry out its corpo- 5 rate purposes, including the maintenance of the capital reserve fund 6 securing such bonds and notes, and, subject to the provisions of section 7 fifty-four of this chapter, and subdivisions five and five-a of this 8 section, the balance, if any, shall be paid to the chief fiscal officer 9 of the city in aid of which such corporation has been created as herein- 10 after provided. Notwithstanding the provisions of this subdivision, in 11 the case of the municipal assistance corporation for the city of New 12 York, such balance, if any, shall be divided between the city of New 13 York and the city of Staten Island and paid, as hereinafter provided. 14 § 12-008. Subdivision 5 of section 92-e of the state finance law, as 15 amended by chapter 55 of the laws of 1992, is amended to read as 16 follows: 17 5. Upon receipt by the comptroller of a certificate or certificates 18 from the [chairman] chairperson of a municipal assistance corporation 19 that such corporation requires a payment or payments in order to comply 20 with any agreement with the holders of its notes and bonds and to carry 21 out its corporate purposes, including the maintenance of the capital 22 reserve fund securing such bonds, from the appropriate special account 23 established for such corporation, each of which certificates shall spec- 24 ify the required payment or payments and the date when the payment or 25 payments is required, the comptroller shall pay from such special 26 account on or before the specified date or within thirty days after 27 receipt of such certificate or certificates, whichever is later, to such 28 corporation, as the [chairman] chairperson thereof may direct in any 29 such certificate, the amount or amounts so certified. In the case of 30 the municipal assistance corporation for the city of New York, each 31 amount so paid shall be comprised of per capita aid apportioned to the 32 city of New York and the city of Staten Island in the same proportion 33 that such amounts were so apportioned during the period covered by each 34 such certification. The comptroller shall from time to time, but in no 35 event later than the fifteenth day of October, January and April and the 36 last day of June of each fiscal year, pay over and distribute to the 37 chief fiscal officer of the city in aid of which such municipal assist- 38 ance corporation has been created to be paid into the treasury of such 39 city to the credit of the general fund all revenues in the special 40 account established for such corporation in the municipal assistance 41 state aid fund, if any, in excess of (i) the aggregate amount which the 42 [chairman] chairperson of such corporation has certified to the comp- 43 troller and which has been previously paid to such corporation as herein 44 above authorized, and (ii) amounts to be refunded to the general fund of 45 the state of New York pursuant to subdivision five-a of this section. 46 Notwithstanding the provisions of this subdivision, in the case of the 47 municipal assistance corporation for the city of New York, the comp- 48 troller shall from time to time, but in no event later than the 49 fifteenth of October, January and April and the last day of June of each 50 fiscal year, (a) apportion between the city of New York and the city of 51 Staten Island the revenues, if any, in the special account established 52 for such corporation in the municipal assistance state aid fund on the 53 basis of the amounts apportioned to each such city pursuant to section 54 fifty-four of this chapter and (b) pay over and distribute to the chief 55 fiscal officers of such cities to be paid into their respective treas- 56 uries to the credit of the general fund all such respective revenues inS. 8474 124 1 excess of the aggregate amount which the chairperson of such corporation 2 has certified to the comptroller and which has been previously paid to 3 such corporation as hereinabove authorized. In no event shall the comp- 4 troller pay over and distribute any revenues to any person other than 5 the municipal assistance corporation unless and until the aggregate of 6 all payments certified to the comptroller as required by such corpo- 7 ration as of such date in order to comply with its agreements with the 8 holders of its notes and bonds and to carry out its corporate purposes, 9 including the maintenance of the capital reserve fund securing such 10 bonds, which remain unpaid to such corporation shall have been paid in 11 full to such corporation; provided, however, that no person, including 12 such corporation or the holders of its notes or bonds shall have any 13 lien on such revenues and such agreement shall be executory only to the 14 extent of such revenues available to the state in such special account. 15 § 12-009. Paragraph c of subdivision 6 of section 54 of the state 16 finance law, as added by chapter 430 of the laws of 1997, is amended to 17 read as follows: 18 c. Upon such certification of the amounts payable to counties, cities, 19 villages and towns for town-wide and town outside village purposes, such 20 per capita aid shall be apportioned and paid to the chief fiscal officer 21 of each such locality pursuant to this section on audit and warrant of 22 the state comptroller out of moneys appropriated by the legislature for 23 such purpose to the credit of the local assistance account in the gener- 24 al fund of the state treasury; provided however that upon such certif- 25 ication of amounts payable to the city of New York or, the city of 26 Staten Island, if applicable, such per capita aid shall be apportioned 27 and paid as follows: (i) any amounts required to be paid to the city 28 university construction fund pursuant to the city university 29 construction fund act, (ii) any amounts required to be paid to the New 30 York city housing development corporation pursuant to the New York city 31 housing development corporation act, (iii) any amounts required to be 32 paid by the city to the New York city transit authority pursuant to the 33 provisions of chapter seven of the laws of nineteen hundred seventy-two, 34 (iv) any amounts required to be paid by the city to the state to repay 35 an advance made in nineteen hundred seventy-four to subsidize the fare 36 of the New York city transit authority, (v) five hundred thousand 37 dollars to the chief fiscal officer of the city of New York for payment 38 to the trustees of the police pension fund of such city pursuant to the 39 provisions of paragraph e of this subdivision, (vi) eighty million 40 dollars to the special account for the municipal assistance corporation 41 for the city of New York in the municipal assistance tax fund created 42 pursuant to section ninety-two-d of this chapter to the extent that such 43 amount has been included by the municipal assistance corporation for the 44 city of New York in any computation for the issuance of bonds on a pari- 45 ty with outstanding bonds pursuant to a contract with the holders of 46 such bonds prior to the issuance of any other bonds secured by payments 47 from the municipal assistance state aid fund created pursuant to section 48 ninety-two-e of this chapter, (vii) the balance to the special account 49 for the municipal assistance corporation for the city of New York in the 50 municipal assistance state aid fund created pursuant to section ninety- 51 two-e of this chapter, and (viii) any amounts to be refunded to the 52 general fund of the state of New York pursuant to the annual appropri- 53 ation enacted for the municipal assistance state aid fund. Notwithstand- 54 ing any existing law, no payments of per capita aid payable to the city 55 of New York shall be paid to the state of New York municipal bond bank 56 agency, the New York state sports authority or the transit constructionS. 8474 125 1 fund so long as amounts of such aid are required to be paid into the 2 municipal assistance state aid fund, and thereafter, after payment of 3 the amounts described in subparagraphs (i) through (viii) of this para- 4 graph the balance shall be paid (A) to the state in repayment of the 5 appropriation of two hundred fifty million dollars made to the city 6 pursuant to chapter two hundred fifty-seven of the laws of nineteen 7 hundred seventy-five providing emergency financial assistance to the 8 city of New York at the extraordinary session held in such year, as 9 amended, (B) to the state of New York municipal bond bank agency to the 10 extent provided by section twenty-four hundred thirty-six of the public 11 authorities law, (C) to the New York state sports authority to the 12 extent provided by section twenty-four hundred sixty-three of the public 13 authorities law, (D) to the transit construction fund to the extent 14 provided by section twelve hundred twenty-five-i of the public authori- 15 ties law, and thereafter (E) to the city of New York. 16 § 12-010. Subparagraphs 1 and 2 of paragraph d of subdivision 6 of 17 section 54 of the state finance law, as added by chapter 430 of the laws 18 of 1997, are amended to read as follows: 19 (1) to the city of New York and the city of Staten Island, on the 20 twenty-fifth days of April, June, October and February; 21 (2) to every county, city, village or town, other than the city of 22 New York and the city of Staten Island, whose fiscal year commences on 23 the first day of June or July, on the twenty-fifth days of April, May, 24 September and December; 25 § 12-011. Subdivisions 1 and 2 of section 3034 of the public authori- 26 ties law, as added by chapter 169 of the laws of 1975, are amended to 27 read as follows: 28 1. The corporation shall be administered by a board of directors, 29 consisting of nine directors, none of whom shall be officers or employ- 30 ees of the federal government or of the state or political subdivisions 31 thereof. All of the directors shall be appointed by the governor with 32 the advice and consent of the senate, provided that four of such direc- 33 tors shall be appointed upon written recommendation of the mayor. Of 34 the directors initially appointed upon the written recommendation of the 35 mayor, one shall serve for a term ending December thirty-first, nineteen 36 hundred seventy-six; one shall serve for a term ending December thirty- 37 first, nineteen hundred seventy-seven; one shall serve for a term ending 38 December thirty-first, nineteen hundred seventy-eight; and one shall 39 serve for a term ending December thirty-first, nineteen hundred seven- 40 ty-nine. The provisions of this subdivision notwithstanding, of the 41 directors appointed upon the recommendation of the mayor, the director 42 whose term expires on the December thirty-first next preceding the 43 establishment of a city of Staten Island, and any successor thereto, 44 shall be appointed only upon the written recommendation of the mayor of 45 the city of Staten Island. Of the remaining directors initially 46 appointed by the governor, one shall serve for a term ending December 47 thirty-first, nineteen hundred seventy-six; one shall serve for a term 48 ending December thirty-first, nineteen hundred seventy-seven; one shall 49 serve for a term ending December thirty-first, nineteen hundred seven- 50 ty-eight; and two shall serve for a term ending December thirty-first, 51 nineteen hundred seventy-nine. Each director shall hold office until 52 his or her successor has been appointed and qualified. Thereafter each 53 director appointed by the governor shall serve a term of four years, 54 except that any director appointed to fill a vacancy shall serve only 55 until the expiration of his predecessor's term.S. 8474 126 1 2. The speaker and the minority leader of the assembly, the president 2 pro-tem and the minority leader of the senate, the city board of esti- 3 mate acting by majority vote, [and] the [vice-chairman] vice-chairperson 4 of the city council, the comptroller of the city of Staten Island and 5 the common council of the city of Staten Island shall each be entitled 6 to appoint a representative to the board of directors. Each such 7 representative shall be entitled to receive notice of and to attend all 8 meetings of the board of directors but shall not be entitled to vote. 9 No representative shall be an employee or officer of the federal, state 10 or city governments. Each representative shall serve at the pleasure of 11 the appointing official or body, shall be eligible for reappointment, 12 and shall hold office until his or her successor has been appointed. 13 § 12-012. Subdivision 1 of section 3036 of the public authorities law, 14 as amended by chapter 201 of the laws of 1978, is amended to read as 15 follows: 16 1. Not less than one hundred twenty days before the beginning of each 17 fiscal year of the corporation (but not later than July 1, 1975 for the 18 fiscal year ending June 30, 1976), the [chairman] chairperson of the 19 board of directors of the corporation shall certify to the state comp- 20 troller and to the mayor a schedule setting forth the cash requirements 21 of the corporation for such fiscal year and the time or times when such 22 cash is required. The total amount so certified by such [chairman] 23 chairperson for such fiscal year shall be equal to: (i) the amounts 24 which are required to be deposited in the capital reserve fund author- 25 ized to be created and established pursuant to subdivision three of this 26 section during such fiscal year in order to maintain such capital 27 reserve fund of the corporation at the level required in accordance with 28 subdivision five of this section; (ii) the amounts required to be depos- 29 ited in the debt service fund of the corporation to pay all interest and 30 all payments of principal and redemption premium, if any, on notes and 31 bonds secured by such debt service fund maturing or otherwise coming due 32 during such fiscal year; and (iii) the amounts required to be deposited 33 in the operating fund of the corporation, as determined by the corpo- 34 ration, to meet the operating requirements and other expenses of the 35 corporation during such fiscal year. If any increase shall occur in the 36 cash requirements specified above, or if payments are required at a time 37 or times earlier than previously certified or if the city shall for any 38 reason fail to make timely payment of the principal and accrued interest 39 due on any obligation issued by the city to the corporation and maturing 40 within the same fiscal year, such [chairman] chairperson shall certify a 41 revised schedule of cash requirements for such fiscal year to the state 42 comptroller and to the mayor. The schedule accompanying each certif- 43 ication (or revision thereof) shall provide for such payment dates as 44 the corporation deems appropriate to assure that sufficient funds will 45 be available from the sources identified below to enable it to meet its 46 current obligations as they come due. Upon receipt of such certif- 47 ication, or any revision thereof, the state comptroller shall pay such 48 amount to the corporation for deposit in the appropriate funds, in 49 accordance with such certification from the special account established 50 for the corporation in the municipal assistance tax fund, in accordance 51 with subdivision one of section ninety-two-d of the state finance law, 52 including any amount transferred to the municipal assistance tax fund 53 from the stock transfer tax fund pursuant to subdivision four of section 54 [92-b] ninety-two-b of the state finance law. Any such payment shall 55 be made within thirty days of receipt of the certification or at the 56 time specified in the certification, whichever is later; provided thatS. 8474 127 1 any such amounts shall have been first appropriated by the state for 2 such purpose or shall have been otherwise made available. Any amount so 3 paid to the corporation shall be deducted from the amount otherwise 4 payable to the city or the city of Staten Island, as the case may be, 5 from the municipal assistance tax fund established by section ninety- 6 two-d of the state finance law and shall not obligate the state to make, 7 nor entitle the city or the city of Staten Island, as the case may be, 8 to receive, any additional payments. 9 § 12-013. Subdivision 1 of section 3036-a of the public authorities 10 law, as amended by chapter 55 of the laws of 1992, is amended to read as 11 follows: 12 1. In addition to the total amount certified by such [chairman] chair- 13 person for such fiscal year, all as referred to in subdivision one of 14 section three thousand thirty-six, the [chairman] chairperson shall at 15 the same time certify to the state comptroller and to the mayor a sched- 16 ule setting forth additional cash requirements of the corporation which 17 shall be equal to: (i) the amounts which are required to be deposited in 18 the capital reserve fund authorized to be created and established pursu- 19 ant to subdivision two of this section (in this section called the capi- 20 tal reserve fund) during such fiscal year in order to maintain the capi- 21 tal reserve fund at the level required in accordance with subdivision 22 four of this section; (ii) the amounts required to be deposited in the 23 bond service fund of the corporation to pay all interest and all 24 payments of principal and redemption premium, if any, on notes and bonds 25 payable from the sources hereinafter identified in this section and 26 maturing or otherwise coming due during such fiscal year; and (iii) the 27 amounts required to be deposited in the operating fund of the corpo- 28 ration heretofore established, as determined by the corporation, to meet 29 the operating requirements and other expenses of the corporation during 30 such fiscal year. If any increase shall occur in such additional cash 31 requirements specified above, or if payments are required at a time or 32 times earlier than previously certified or if the city shall for any 33 reason fail to make timely payment of the principal and accrued interest 34 due on any obligation issued by the city to the corporation and maturing 35 within the same fiscal year, such [chairman] chairperson shall certify a 36 revised schedule of such additional cash requirements for such fiscal 37 year to the state comptroller and to the mayor. The schedule accompany- 38 ing each certification (or revision thereof) shall provide for such 39 payment dates as the corporation deems appropriate to assure that suffi- 40 cient funds will be available from the sources identified below to 41 enable it to meet its current obligations under this section as they 42 come due. Upon receipt of such certification, or any revision thereof, 43 the state comptroller shall pay such amount to the corporation for 44 deposit in the appropriate funds referred to in this section, in accord- 45 ance with such certification from the special account established for 46 the corporation in the municipal assistance state aid fund in accord- 47 ance with subdivision one of section ninety-two-e of the state finance 48 law and, subject to agreements with outstanding bond and note holders of 49 the corporation, from the special account established for the corpo- 50 ration in the municipal assistance tax fund, in accordance with subdivi- 51 sion one of section ninety-two-d of the state finance law, including any 52 amount transferred to the municipal assistance tax fund from the stock 53 transfer tax fund pursuant to subdivision four of section ninety-two-b 54 of the state finance law. Any such payment shall be made within thirty 55 days of receipt of the certification or at the time specified in the 56 certification, whichever is later; provided that any such amounts shallS. 8474 128 1 have been first appropriated by the state for such purpose or shall have 2 been otherwise made available. Any amount paid to the corporation from 3 such municipal assistance state aid fund shall be deducted from the 4 amount otherwise payable to the city or the city of Staten Island, as 5 the case may be, as per capita aid pursuant to sections fifty-four and 6 ninety-two-e of the state finance law and shall not obligate the state 7 to make, nor entitle the city or the city of Staten Island, to receive, 8 any additional payments of per capita aid. Any amount so paid to the 9 corporation from the municipal assistance tax fund shall, in addition to 10 the amount deducted pursuant to subdivision one of section three thou- 11 sand thirty-six, be deducted from the amount otherwise payable to the 12 city or the city of Staten Island, as the case may be, from the munici- 13 pal assistance tax fund and shall not obligate the state to make, nor 14 entitle the city or the city of Staten Island to receive, any additional 15 payments from such municipal assistance tax fund. 16 § 12-014. Subdivision 1 of section 3036-b of the public authorities 17 law, as amended by chapter 55 of the laws of 1992, is amended to read as 18 follows: 19 1. In addition to the total amount certified by such [chairman] chair- 20 person for such fiscal year, all as referred to in subdivision one of 21 each of sections three thousand thirty-six and three thousand thirty- 22 six-a of this title, the [chairman] chairperson shall at the same time 23 certify to the state comptroller and to the mayor a schedule setting 24 forth additional cash requirements of the corporation which shall be 25 equal to: (i) the amounts required to be deposited in the bond payment 26 fund of the corporation to pay all interest and all payments of princi- 27 pal and redemption premium, if any, on bonds and notes payable from the 28 sources hereinafter identified in this section and maturing or otherwise 29 coming due during such fiscal year; (ii) the amounts required to be 30 deposited in the operating fund of the corporation heretofore estab- 31 lished, as determined by the corporation, to meet the operating require- 32 ments and other expenses of the corporation during such fiscal year to 33 the extent not otherwise provided for; and (iii) the amounts required to 34 be deposited in the bond reserve fund created and established pursuant 35 to the agreements of the corporation made with the holders of its bonds 36 or notes issued pursuant to subdivision two-b of section three thousand 37 thirty-three of this title during such fiscal year in order to maintain 38 the bond reserve fund at the level required in accordance with the 39 agreements of the corporation made with the holders of its bonds or 40 notes issued pursuant to subdivision two-b of section three thousand 41 thirty-three of this title. If any increase shall occur in such addi- 42 tional cash requirements specified above, or if payments are required at 43 a time or times earlier than previously certified or if the city shall, 44 for any reason, fail to make timely payment of the principal and accrued 45 interest due on any obligation issued by the city to the corporation and 46 maturing within the same fiscal year, such [chairman] chairperson shall 47 certify a revised schedule of such additional cash requirements for such 48 fiscal year to the state comptroller and to the mayor. The schedule 49 accompanying each certification, or revision thereof, shall provide for 50 such payment dates as the corporation deems appropriate to assure that 51 sufficient funds will be available from the sources identified below to 52 enable it to meet its current obligations under this section as they 53 come due. Upon receipt of such certification, or any revision thereof, 54 the state comptroller shall pay such amount to the corporation for 55 deposit in the appropriate funds referred to in this section, in accord- 56 ance with such certification and subject to agreements with holders ofS. 8474 129 1 outstanding bonds and notes of the corporation, from the special account 2 established for the corporation in the municipal assistance state aid 3 fund in accordance with subdivision one of section ninety-two-e of the 4 state finance law and from the special account established for the 5 corporation in the municipal assistance tax fund in accordance with 6 subdivision one of section ninety-two-d of the state finance law, 7 including any amount transferred to the municipal assistance tax fund 8 from the stock transfer tax fund pursuant to subdivision four of section 9 ninety-two-b of the state finance law. Any such payment shall be made 10 within thirty days of receipt of the certification or at the time speci- 11 fied in the certification, whichever is later; provided that any such 12 amounts shall have been first appropriated by the state for such purpose 13 or shall have been otherwise made available. Any amount paid to the 14 corporation from such municipal assistance state aid fund, in addition 15 to the amount deducted pursuant to subdivision one of section three 16 thousand thirty-six-a of this title, shall be deducted from the amount 17 otherwise payable to the city or the city of Staten Island, as the case 18 may be, as per capita aid pursuant to sections fifty-four and ninety- 19 two-e of the state finance law and shall not obligate the state to make, 20 nor entitle the city or the city of Staten Island to receive, any addi- 21 tional payments of per capita aid. Any amount so paid to the corporation 22 from the municipal assistance tax fund, in addition to the amount 23 deducted pursuant to subdivision one of each of section three thousand 24 thirty-six or three thousand thirty-six-a of this title, shall be 25 deducted from the amount otherwise payable to the city or the city of 26 Staten Island, as the case may be, from the municipal assistance tax 27 fund and shall not obligate the state to make, nor entitle the city or 28 the city of Staten Island to receive, any additional payments from such 29 municipal assistance tax fund. 30 § 12-015. Section 6 of section 2 of chapter 868 of the laws of 1975, 31 constituting the New York state financial emergency act for the city of 32 New York, subdivision 1 as amended by chapter 777 of the laws of 1978, 33 subdivision 3 as amended by chapter 869 of the laws of 1975 and subdivi- 34 sion 4 as amended by chapter 201 of the laws of 1978, is amended to read 35 as follows: 36 § 6. Administration of the board. 1. The membership of the board 37 shall be the governor, the state comptroller (pursuant to [his] such 38 official's authority to supervise the accounts of any political subdivi- 39 sion of the state), the mayor, the city comptroller, the mayor of the 40 city of Staten Island, the comptroller of the city of Staten Island, and 41 three members appointed by the governor with the advice and consent of 42 the senate. At least two of the appointed members shall be residents of 43 the city or have their principal place of business in the city. The 44 mayor of the city of Staten Island may recommend to the governor the 45 appointment of one such appointed member. Such appointed members shall 46 serve at the pleasure of the governor. The governor shall be the [chair-47man] chairperson of the board and the governor or [his] the governor's 48 representative shall preside over all meetings of the board. The board 49 shall act by majority vote of the entire board, provided, however, on 50 matters affecting only the city, as determined by the governor, the 51 state comptroller and the appointed members, the mayor of the city of 52 Staten Island and the comptroller of the city of Staten Island shall not 53 vote, and on matters affecting only the city of Staten Island, as deter- 54 mined by the governor, the state comptroller and the appointed members, 55 the mayor and the city comptroller shall not vote. Such officials not 56 voting shall not be considered members of the board for determining aS. 8474 130 1 majority. The board shall maintain a record of its proceedings in such 2 form as it may determine, but such record shall indicate attendance and 3 all votes cast by each member. Every member of the board, who is other- 4 wise an elected official of the state or city, shall be entitled to 5 designate a representative to attend, in [his] such official's place, 6 meetings of the board and to vote or otherwise act in [his] such offi- 7 cial's behalf. Written notice of such designation shall be furnished to 8 the board by the designating member prior to any meeting attended by 9 [his] such official's representative. Any such representative shall 10 serve at the pleasure of the designating member. No such representative 11 shall be authorized to delegate any of [his] such representative's 12 duties or functions to any other person. The lieutenant governor, 13 temporary president of the senate, the minority leader of the senate, 14 speaker and minority leader of the assembly, the president of the coun- 15 cil of the city of New York, the city board of estimate acting by major- 16 ity vote, the speaker and the minority leader of the common council of 17 the city of Staten Island and the [vice-chairman] vice-chairperson and 18 the minority leader of the council of the city of New York, shall each 19 be entitled to appoint a representative to the board. Each such repre- 20 sentative shall be entitled to receive notice of and to attend all meet- 21 ings of the board but shall not be entitled to vote. No representative 22 shall be an employee or officer of the federal, state or city govern- 23 ments. Each representative shall serve at the pleasure of the appoint- 24 ing official or body, shall be eligible for reappointment, and shall 25 hold office until [his] such representative's successor has been 26 appointed. 27 2. Notwithstanding any inconsistent provisions of law, general, 28 special or local, no officer or employee of the state, or political 29 subdivision of the state, any governmental entity operating any public 30 school or college or other public agency or instrumentality or unit of 31 government which exercises governmental powers under the laws of the 32 state, shall forfeit [his] such person's office or employment by reason 33 of [his] such person's acceptance or appointment as a member, represen- 34 tative, officer, employee or agent of the board nor shall service as 35 such member, representative, officer, employee or agent of the board be 36 deemed incompatible or in conflict with such office or employment. 37 3. The members of the board appointed by the governor and all repre- 38 sentatives designated by members of the board shall serve without salary 39 or per diem allowance but shall be entitled to reimbursement for actual 40 and necessary expenses incurred in the performance of official duties 41 under this act, provided however that such members and representatives 42 are not, at the time such expenses are incurred, public employees other- 43 wise entitled to such reimbursement. 44 4. The governor and the mayor, jointly, shall appoint an executive 45 director of the board who shall serve at the pleasure of the board and 46 may be removed by the board. The board may delegate to the executive 47 director or to one or more of its other officers, employees or agents, 48 such powers and duties as the board may deem proper, except any duties 49 inconsistent with the duties and functions prescribed by any other 50 office or position any such person may hold. 51 § 12-016. Section 7 of section 2 of chapter 868 of the laws of 1975, 52 constituting the New York state financial emergency act for the city of 53 New York, paragraphs a, b, c, e, f and g of subdivision 1, paragraphs 54 (b) and (f) of subdivision 3 and subdivisions 4 and 6 as amended and 55 subdivision 7 as added by chapter 777 of the laws of 1978, paragraph h 56 of subdivision 1 as amended by chapter 870 of the laws of 1975, para-S. 8474 131 1 graphs d and i of subdivision 1 as amended by chapter 830 of the laws of 2 1987, subdivisions 3 and 5 as added by chapter 201 of the laws of 1978, 3 and paragraph (i) of subdivision 3 as amended by chapter 285 of the laws 4 of 1985, is amended to read as follows: 5 § 7. Functions of the board. 1. In carrying out the purposes of this 6 act, the board shall perform the following functions: 7 a. In accordance with the provisions of section eight of this act, the 8 board shall (i) consult with the city and the covered organizations and 9 to the extent it deems it necessary or appropriate to accomplish the 10 purposes of this act, the city of Staten Island, in the preparation of 11 the financial plan, and certify to the city the revenue estimates 12 approved therein, (ii) prescribe the form of the financial plan and the 13 supporting information required in connection therewith, and (iii) exer- 14 cise the rights of approval, disapproval and modification with respect 15 to the financial plan, including but not limited to the revenue esti- 16 mates contained therein. 17 b. The board, to the extent it deems it necessary or appropriate in 18 order to accomplish the purposes of this act, shall establish and adopt 19 procedures with respect to the (i) proper maintenance of the board fund, 20 (ii) the deposit and investment of revenues in such fund and (iii) 21 disbursement of monies from such fund. 22 c. The board shall, from time to time and to the extent it deems 23 necessary or appropriate in order to accomplish the purposes of this 24 act, (i) review the operations, management, efficiency and productivity 25 of such city operations and of such covered organizations or of the city 26 of Staten Island or portions thereof as the board may determine, and 27 make reports thereon; (ii) audit compliance with the financial plan in 28 such areas as the board may determine; (iii) recommend to the city, the 29 city of Staten Island and the covered organizations such measures relat- 30 ing to their operations, management, efficiency and productivity as it 31 deems appropriate to reduce costs and improve services so as to advance 32 the purposes of this act; and (iv) obtain information of the financial 33 condition and needs of the city, the city of Staten Island and the 34 covered organizations. Nothing herein shall diminish the powers of the 35 comptroller otherwise provided by law and the board may request the 36 assistance of the comptroller in performing the above functions. 37 d. The board (i) shall receive from the city and review the reports to 38 be prepared by or on behalf of the city pursuant to section seven-a; 39 (ii) shall receive from the city, the city of Staten Island and the 40 covered organizations and from the deputy comptroller, and shall review 41 such financial statements and projections, budgetary data and informa- 42 tion, and management reports and materials as the board deems necessary 43 or desirable to accomplish the purposes of this act; and (iii) shall 44 inspect, copy and audit such books and records of the city, the city of 45 Staten Island and the covered organizations as the board deems necessary 46 or desirable to accomplish the purposes of this act. 47 e. All contracts entered into by the city or any covered organization 48 and, to the extent the board deems necessary or desirable to accomplish 49 the purposes of this act, by the city of Staten Island must be consist- 50 ent with the provisions of this act and must comply with the require- 51 ments of the financial plan as approved by the board. With respect to 52 all contracts or other obligations to be entered into by the city or any 53 covered organization after October fifteenth, nineteen hundred seventy- 54 five, requiring the payment of funds or the incurring of costs by the 55 city or any covered organization:S. 8474 132 1 (i) Within twenty days from the effective date of this act the mayor 2 shall present to the board proposed regulations respecting the catego- 3 ries and types of contracts and other obligations required to be 4 reviewed by the board pursuant to this subdivision [e]. Within thirty 5 days from the effective date of this act, the board shall approve or 6 modify and approve such proposed regulations or promulgate its own in 7 the event that such proposed regulations are not submitted to it within 8 the twenty days as provided for herein. Such regulations may thereafter 9 be modified by the board from time to time on not less than thirty days 10 notice to the mayor and the mayor may from time to time propose modifi- 11 cations to the board. Unless expressly disapproved or modified by the 12 board within thirty days from the date of submission by the mayor, any 13 such proposed regulations or modifications shall be deemed approved by 14 the board; 15 (ii) Prior to entering into any contract or other obligations subject 16 to review of the board under its regulations, the city or any covered 17 organization and, to the extent the board deems necessary or desirable 18 to accomplish the purposes of this act, the city of Staten Island shall 19 submit a copy of such contract or other obligation to the board accompa- 20 nied by an analysis of the projected costs of such contract or other 21 obligation and a certification that performance thereof will be in 22 accordance with the financial plan, all in such form and with such addi- 23 tional information as the board may prescribe. The board shall promptly 24 review the terms of such contract or other obligation and the supporting 25 information in order to determine compliance with the financial plan; 26 (iii) During a control period the board shall, by order, disapprove 27 any contract or other obligation reviewed by it only upon a determi- 28 nation that, in its judgment, the performance of such contract or other 29 obligation would be inconsistent with the financial plan and the city, 30 the city of Staten Island or covered organization shall not enter into 31 such contract or other obligation; 32 (iv) During a control period if the board approves the terms of a 33 reviewed contract or other obligation, the city or covered organization 34 and, to the extent the board deems necessary or desirable to accomplish 35 the purposes of this act, the city of Staten Island may enter into such 36 contract or other obligation upon the terms submitted to the board. 37 Failure of the board to notify the city, the city of Staten Island or 38 covered organization within thirty days (or such additional time not 39 exceeding thirty days as the board shall have notified the city or 40 covered organization, that it requires to complete its review and analy- 41 sis) after submission to it of a contract or other obligation that such 42 contract or other obligation has been disapproved shall be deemed to 43 constitute board approval thereof. 44 f. Upon submission thereof by the city, the board shall review the 45 terms of each proposed long-term and short-term borrowing by the city 46 and any covered organization to be effected during a control period but 47 after October fifteenth, nineteen hundred seventy-five, and no such 48 borrowing shall be made unless approved by the board. To the extent the 49 board deems necessary or desirable to accomplish the purposes of this 50 act, during a control period, the city of Staten Island shall submit and 51 the board shall review the terms of each proposed long-term and short- 52 term borrowing by the city of Staten Island and no such borrowing shall 53 be made unless approved by the board. Each such proposed borrowing by a 54 covered organization shall be submitted to the city by the covered 55 organization before it may be considered by the board. Not more than 56 thirty days after any such submission by a covered organization the cityS. 8474 133 1 shall transmit any such proposed terms of borrowing to the board togeth- 2 er with the certification of the city as to whether such proposed terms 3 of borrowing are in accordance with the financial plan and are consist- 4 ent with the objectives and purposes of this act. Any such submission 5 to the city shall be accompanied by a certification of the covered 6 organization that the terms thereof are in accordance with the financial 7 plan and are consistent with the objectives or purposes of this act. The 8 transmittal by the city to the board shall include a recommendation by 9 the city for the approval or disapproval of such proposed terms of 10 borrowing pursuant to the terms of this paragraph. In the event the 11 city does not make such transmittal within such thirty day period, such 12 covered organization may submit such proposed borrowing directly to the 13 board. The board shall disapprove any borrowing if it determines that 14 such borrowing is inconsistent with the financial plan or the objectives 15 or purposes of this act. The board shall consult and coordinate with the 16 municipal assistance corporation for the city of New York with respect 17 to borrowings of the city and any covered organization and shall receive 18 reports from the [muncipal] municipal assistance corporation for the 19 city of New York on its review of borrowings by the city. No covered 20 organizations shall be prohibited from issuing bonds or notes to pay 21 outstanding bonds or notes. 22 g. The board and the comptroller shall receive quarterly reports from 23 the city comptroller setting forth the debt service requirements on all 24 bonds and notes of the city and the covered organizations for the 25 following quarter, which reports shall be in such form and contain such 26 information as the board shall determine. Such reports shall be issued 27 no later than sixty days prior to the start of the quarter to which they 28 pertain and shall be updated immediately upon each issuance of bonds or 29 notes after the date of such report to reflect any change in debt 30 service requirements as a result of such issuance. The board also shall 31 receive from the city monthly and quarterly financial reports, which 32 reports shall be in such form and contain such information as the board 33 shall determine and shall be made available by the city to the public. 34 In order to avoid duplicative reports and reporting requirements, to the 35 extent that the city is required to submit monthly or quarterly finan- 36 cial reports to the department of the treasury pursuant to any agreement 37 or arrangement made in connection with federal guarantees of notes or 38 boards issued by the city or a state financing agency, copies of such 39 reports shall be submitted to the board in satisfaction of the monthly 40 and quarterly reporting requirements set forth above, together with such 41 additional information as the board may require. Each monthly and quar- 42 terly report herein required to be submitted to the board must indicate 43 any variance between actual and budgeted revenues, expenses or cash for 44 the period covered by such report. During a control period, to the 45 extent the board deems necessary or desirable to accomplish the purposes 46 of this act, the city of Staten Island shall be subject to the same 47 reporting requirements as the city. 48 h. The board shall issue, to the appropriate officials of the city, 49 the city of Staten Island and the covered organizations, such orders as 50 it deems necessary to accomplish the purposes of this act, including but 51 not limited to timely and satisfactory implementation of an approved 52 financial plan. Any order so issued shall be binding upon the official 53 to whom it was issued and failure to comply with such order shall 54 subject the official to the penalties described in section eleven of 55 this act.S. 8474 134 1 i. The board shall coordinate with the municipal assistance corpo- 2 ration for the city of New York and the deputy comptroller with respect 3 to the performance of its review and monitoring of the revenues and 4 expenditures of the city and the covered organizations. 5 2. In the event of any default by the city on its outstanding bonds or 6 notes, and so long as such default has not been cured by the city, the 7 board may, any provisions of this act notwithstanding, take any action 8 that it is authorized to take pursuant to title six-A of article two of 9 the local finance law, and may direct the city to take any action that 10 the city is authorized to take under such law. 11 3. (a) Notwithstanding any provision of the New York City Collective 12 Bargaining Law, codified as chapter [fifty-four] three of title twelve 13 of the New York city administrative code, or any general or special law 14 to the contrary, any report or recommendation of an impasse panel 15 constituted pursuant to such chapter which provides for an increase in 16 wages or fringe benefits of any employee of the city or covered organ- 17 ization, in addition to considering any standard or factor required to 18 be considered by applicable law, including the standards enumerated in 19 section [1173-7.0] 12-311(c)(3)(b) of such chapter, shall also take into 20 consideration and accord substantial weight to the financial ability of 21 the city and or covered organization to pay the cost of such increase in 22 wages or fringe benefits. 23 (b) The board of collective bargaining constituted pursuant to such 24 chapter, when reviewing such report or recommendation before proceeding 25 to other issues, shall make a threshold determination as to whether such 26 report or recommendation for an increase in wages or fringe benefits is 27 within the city's and or covered organization's financial ability to 28 pay. If the threshold determination is in the negative, the matter shall 29 be remitted to the impasse panel for further consideration. If the 30 threshold determination is in the affirmative, the further review of the 31 report or recommendation with respect to other issues, if any, shall 32 proceed as provided by law. Unless the parties stipulate otherwise, the 33 threshold determination shall be made within thirty days after 34 submission of the report or recommendation to the board of collective 35 bargaining. 36 (c) Any determination pursuant to article eight of the labor law or 37 any agreement or stipulation entered into in lieu thereof which provides 38 for an increase in wages or fringe benefits of any employee of the city 39 or covered organization shall, in addition to considering any standard 40 or factor required to be considered by applicable law, also take into 41 consideration and accord substantial weight to the financial ability of 42 the city and or covered organization to pay the cost of such increase. 43 (d) Any report or recommendation of a fact finding or similar type 44 panel or any interest arbitration award which provides for an increase 45 in wages or fringe benefits of any employee of the city or covered 46 organization not subject to the provisions of the New York City Collec- 47 tive Bargaining Law, codified as chapter [fifty-four] three of title 48 twelve of the New York city administrative code, shall, in addition to 49 considering any standard or factor required to be considered by applica- 50 ble law, also take into consideration and accord substantial weight to 51 the financial ability of the city and or covered organization to pay the 52 cost of such increase. 53 (e) Any party to a proceeding before the board of collective bargain- 54 ing as described in paragraph (b) or other body as described in para- 55 graphs (c) or (d) [hereof] of this subdivision may commence a special 56 proceeding in the appellate division, first department, supreme court,S. 8474 135 1 state of New York, to review the threshold determination as to the city 2 and/or covered organization's financial ability to pay. Such proceeding 3 shall be commenced not later than thirty days after the final determi- 4 nation has been made by the board of collective bargaining in the case 5 of paragraph (b) or other body in the case of paragraphs (c) or (d) of 6 this subdivision. Such proceeding shall have preference over all other 7 causes in such appellate division, other than causes relating to the 8 election law. 9 (f) The court shall make a de novo review of the record solely for the 10 purpose of determining whether an award of an increase in wages or 11 fringe benefits was within the city's and or covered organization's 12 financial ability to pay. The court's findings as to such issue shall be 13 based upon a preponderance of all the evidence set forth in the record. 14 Unless the parties stipulate otherwise, arguments or submission shall be 15 had within fifteen days after commencement of the special proceeding and 16 the court shall render its decision within fifteen days thereafter. All 17 questions, other than the question relating to the threshold determi- 18 nation, shall be reviewed by the appellate division in the same proceed- 19 ing in the manner provided by articles seventy-five or seventy-eight of 20 the civil practice law and rules as may be appropriate, notwithstanding 21 that the issue would otherwise have been cognizable in the first 22 instance before a special or trial term of the supreme court. If an 23 appeal shall otherwise lie from such determination of the appellate 24 division to the court of appeals, notice of such appeal shall be filed 25 within thirty days after the entry of the final order or judgment of the 26 appellate division if such appeal is of right or within ten days after 27 entry of an order granting leave to appeal and such appeal shall have 28 preference over all other appeals other than appeals relating to the 29 election law. 30 (g) At any stage of any proceeding under paragraphs (a), (b), (c), (d) 31 and (e) hereof or any appeal from an order or judgment therefrom, the 32 board may intervene as a party on the issue of the financial ability of 33 the city and or covered organization to pay the cost of an increase in 34 wages or fringe benefits. 35 (h) For the purposes of this subdivision, financial ability to pay 36 shall mean the financial ability of the city and or covered organization 37 to pay the cost of any increase in wages or fringe benefits without 38 requiring an increase in the level of city taxes existing at the time of 39 the commencement of a proceeding under paragraph (a), (c) or (d) hereof. 40 [(i) The provisions of this subdivision shall terminate on June thir-41tieth, nineteen hundred eighty-six.] 42 4. During a control period, except upon approval by the board in 43 accordance with the provisions of paragraph e or f of subdivision one of 44 this section, as the board shall determine, neither the city nor a 45 covered organization nor, to the extent the board deems necessary or 46 desirable to accomplish the purposes of this act, the city of Staten 47 Island shall enter any agreement or other arrangement, whether or not it 48 creates a debt of the city, the city of Staten Island or a covered 49 organization, pursuant to which the revenues or credit of the city or 50 the city of Staten Island may be directly or indirectly pledged, encum- 51 bered, committed or promised, contingently or otherwise, for the payment 52 of obligations of a public benefit corporation. Nothing in this subdivi- 53 sion shall limit the right of the city to comply with the provisions of 54 any existing agreement or other arrangement in respect of the obli- 55 gations of a public benefit corporation.S. 8474 136 1 5. The board may employ such consultants as it may deem necessary to 2 assist it in performing its functions required under this act. 3 6. The board shall have the authority to make and execute agreements 4 and all other instruments which the board deems necessary for the exer- 5 cise of its powers and functions including, in connection with any 6 agreement by the federal government or any agency or instrumentality 7 thereof to guarantee the payment of the principal of or interest on 8 bonds or notes issued by the city or by a state financing agency, to 9 enter into one or more agreements containing terms and conditions 10 required by the secretary of the treasury pursuant to the New York City 11 Loan Guarantee Act of l978, Public Law 95-339 with the federal govern- 12 ment or any agency or instrumentality thereof with respect to such guar- 13 antee or any matters related thereto and to comply with such terms and 14 conditions. 15 7. The board may appoint qualified individuals to participate as 16 members of such audit, productivity or similar committees or councils as 17 the city may from time to time establish in consultation with the board. 18 Such individuals, however, shall not be deemed to be officers, employees 19 or agents of the board. The board shall review and report on, not less 20 than annually, the development and implementation of methods for enhanc- 21 ing the productivity of the city's labor force proposed by any such 22 committee or council. 23 § 12-017. Section 8 of section 2 of chapter 868 of the laws of 1975, 24 constituting the New York state financial emergency act for the city of 25 New York, subdivisions 1, 2, 4, 5 and 6 as amended by chapter 201 of the 26 laws of 1978, the opening paragraph and paragraph c of subdivision 1, 27 subdivisions 2-a and 3 as amended by chapter 777 of the laws of 1978, 28 paragraph a of subdivision 1 as amended by chapter 118 of the laws of 29 2020, is amended to read as follows: 30 § 8. Development of the financial plan. 1. Pursuant to the proce- 31 dures contained in subdivision three of this section, each year the 32 city and to the extent the board deems necessary or desirable to accom- 33 plish the purposes of this act, the city of Staten Island shall develop, 34 and may from time to time modify, with the approval of the board during 35 a control period, a four year financial plan covering the city and the 36 covered organizations or the city of Staten Island, as applicable. 37 Each such financial plan and financial plan modification shall comply 38 with the requirements of subdivision four of this section and shall, 39 except as otherwise provided pursuant to subdivision two-a of this 40 section, conform to the following standards: 41 a. For its fiscal years ending June thirtieth, nineteen hundred seven- 42 ty-nine through June thirtieth, nineteen hundred eighty-one, the city's 43 budget covering all expenditures other than capital items shall be 44 prepared and balanced so that the results thereof would not show a defi- 45 cit when reported in accordance with the accounting principles set forth 46 in the state comptroller's uniform system of accounts for munici- 47 palities, as the same may be modified by the comptroller, in consulta- 48 tion with the city comptroller, for application to the city; subject to 49 the provision of subdivision four of section three thousand thirty-eight 50 of the public authorities law with respect to contributions by the city 51 or other public employer to any retirement system or pension fund and 52 subject to the provision of paragraph (c) of subdivision five of section 53 three thousand thirty-eight of the public authorities law with respect 54 to expense items included in the capital budget of the city. For the 55 fiscal year ending June thirtieth, nineteen hundred eighty-two, and for 56 each fiscal year thereafter, the city's budget covering all expendituresS. 8474 137 1 other than capital items shall be prepared and balanced so that the 2 results thereof would not show a deficit when reported in accordance 3 with generally accepted accounting principles and would permit compar- 4 ison of the budget with the report of actual financial results prepared 5 in accordance with generally accepted accounting principles. With 6 respect to financial plans that include the fiscal years ending June 7 thirtieth, nineteen hundred seventy-nine through June thirtieth, nine- 8 teen hundred eighty-one, the city's budget covering all expenditures 9 other than capital items shall be prepared in accordance with generally 10 accepted accounting principles and there shall be substantial progress 11 in each such fiscal year towards achieving a city budget covering all 12 expenditures other than capital items the results of which would not 13 show a deficit when reported in accordance with generally accepted 14 accounting principles. The city shall eliminate expense items from its 15 capital budget not later than the commencement of the fiscal year ending 16 June thirtieth, nineteen hundred eighty-two. For the fiscal year ending 17 June thirtieth, nineteen hundred eighty-nine, and for each fiscal year 18 thereafter, the budgets covering all expenditures other than capital 19 items of each of the covered organizations shall be prepared and 20 balanced so that the results thereof would not show a deficit when 21 reported in accordance with generally accepted accounting principles; 22 and for each fiscal year prior thereto, there shall be substantial 23 progress towards such goal. Notwithstanding the foregoing and the 24 provisions of any general or special state law or local law to the 25 contrary, including but not limited to the New York city charter: (i) 26 all costs that would be capital costs in accordance with generally 27 accepted accounting principles, but for the application of governmental 28 accounting standards board statement number forty-nine, shall be deemed 29 to be capital costs for purposes of this act and any other provision of 30 state or local law, including but not limited to the New York city char- 31 ter, relevant to the treatment of such costs; and (ii) the determination 32 as to the existence of a deficit pursuant to this act and any other 33 provision of state or local law, including but not limited to the New 34 York city charter, shall be made without regard to changes in restricted 35 fund balances, as defined by the governmental accounting standards 36 board, where restrictions in relation to such fund balances are imposed 37 by state or federal law or regulation, or otherwise by private or 38 governmental parties other than the city of New York, and without regard 39 to funds held in the health stabilization fund, the school crossing 40 guards health insurance fund, any revenue stabilization fund established 41 pursuant to section fifteen hundred twenty-eight of the New York city 42 charter and the management benefits fund established by the city of New 43 York. Deposits into any such revenue stabilization fund shall be deemed 44 to be expenses of such city in the fiscal year in which such deposits 45 are made, and withdrawals from such fund shall be deemed to be revenues 46 of such city in the year in which such withdrawals are made; provided 47 however, that surpluses of such city, whether accumulated from fiscal 48 years ending prior to the effective date of the chapter of the laws of 49 two thousand twenty that amended this paragraph or existing at the close 50 of any fiscal year ending after such effective date, shall be deposited 51 into such revenue stabilization fund as soon as practicable, and such 52 deposits shall not be deemed expenses of the city in the fiscal year in 53 which such deposits are made. 54 b. The limitations on its outstanding short-term obligations required 55 by subdivision nine of section three thousand thirty-eight of the publicS. 8474 138 1 authorities law and by section nine-b of this act shall be observed at 2 all times, as each is amended from time to time. 3 c. Provision shall be made for the payment in full of the debt 4 service on all bonds and notes of the city and the covered organizations 5 (other than notes held by the municipal assistance corporation for the 6 city of New York to the extent that such corporation has evidenced its 7 intention not to present such notes for payment during the fiscal year 8 in which the determination is made provided that such notes were held by 9 such corporation on June thirtieth, nineteen hundred seventy-eight or 10 were issued in exchange for or in refunding or renewal of notes held by 11 such corporation on such date) and to the extent the board deems neces- 12 sary or desirable to accomplish the purposes of this act, the city of 13 Staten Island, for the adequate funding of programs of the city, the 14 city of Staten Island, if applicable and the covered organizations which 15 are mandated by state or federal law and for which obligations are going 16 to be incurred during the fiscal year and for payment of a guarantee fee 17 or any other amounts required by the United States of America or any 18 agency or instrumentality thereof in connection with the guarantee of 19 the payment of the principal of or interest on bonds or notes issued by 20 the city. 21 d. All projections of revenues and expenditures contained in a finan- 22 cial plan shall be based on reasonable and appropriate assumptions and 23 methods of estimation. All cash flow projections shall be based upon 24 reasonable and appropriate assumptions as to sources and uses of cash 25 (including but not limited to the timing thereof), and shall provide for 26 operations of the city, the city of Staten Island, if applicable and 27 covered organizations to be conducted within the cash resources so 28 projected. 29 e. The city shall provide a general reserve for each fiscal year to 30 cover potential reductions in its projected revenues or increases in its 31 projected expenditures during each such fiscal year. The amount 32 provided for such general reserve shall be estimated by the city in 33 accordance with paragraph d of this subdivision, but in no event shall 34 it be less than one hundred million dollars at the beginning of any 35 fiscal year. 36 f. For financial plans beginning with the fiscal year ending June 37 thirtieth, nineteen hundred eighty-three or any succeeding fiscal year, 38 the first fiscal year included in any financial plan shall make 39 provision for the repayment of any deficit incurred by the city during 40 the preceding fiscal year. 41 2. In developing the financial plan the city shall seek to achieve a 42 stabilized work force for the city and, to the extent a reduction in the 43 work force is required, primary recourse shall be had to the attrition 44 process to accomplish such reduction. 45 2-a. The city and the board shall confer concerning the projected 46 effect on the budgets of the city and the covered organizations of any 47 change in generally accepted accounting principles, or change in the 48 application of generally accepted accounting principles to the city and 49 the covered organizations, made after the effective date of this act. 50 If the board determines that immediate compliance with such change will 51 have a material effect on such budgets over a time period insufficient 52 to accommodate the effect without a substantial adverse impact on the 53 delivery of essential services, the board may authorize and approve a 54 method of phasing the requirements of such change into such budgets over 55 such reasonably expeditious time period as the board deems appropriate.S. 8474 139 1 3. The financial plan shall be developed and, during a control peri- 2 od, shall be approved, and may from time to time be modified, in accord- 3 ance with the following procedures: 4 a. The city shall, by June first, nineteen hundred seventy-eight, 5 prepare and submit a financial plan to the board covering the four year 6 period which begins with the fiscal year ending June thirtieth, nineteen 7 hundred seventy-nine. Thereafter, at least fifty days prior to the 8 beginning of each fiscal year or on such other date as the board may 9 approve upon the request of the city or the city of Staten Island, if 10 applicable, the city, and, during a control period, to the extent the 11 board deems necessary or desirable to accomplish the purposes of this 12 act, the city of Staten Island shall prepare and submit a financial plan 13 to the board covering the four year period beginning with such fiscal 14 year. On such dates the mayor shall also submit to the board the city's 15 executive expense, revenue and capital budgets for the ensuing fiscal 16 year and a certificate of the mayor stating that such budgets are 17 consistent with the financial plan submitted therewith, that projections 18 contained in the budgets and financial plan are based upon reasonable 19 and appropriate assumptions and methods of estimation, and that opera- 20 tion within the budgets is feasible. 21 b. (i) During a control period the board shall promptly review each 22 financial plan and financial plan modification submitted by the city or, 23 the city of Staten Island, if applicable. Not more than forty-five days 24 after submission of a financial plan or more than thirty days after 25 submission of a financial plan modification the board shall determine 26 whether the financial plan or financial plan modification is complete 27 and complies with the standards set forth in subdivision one of this 28 section and shall approve or disapprove the financial plan or financial 29 plan modification in accordance with the provisions of this section. If 30 the board determines that the financial plan or financial plan modifica- 31 tion is complete and complies with the standards set forth in subdivi- 32 sion one of this section, the board shall approve the financial plan or 33 financial plan modification. Upon making such determination the board 34 shall make a certification to the city or, the city of Staten Island, if 35 applicable, setting forth revenue estimates approved by the board in 36 accordance with such determination. 37 (ii) At all times other than during a control period the board shall 38 promptly review each financial plan and financial plan modification 39 submitted by the city. If the board determines after such review that 40 the financial plan or financial plan modification submitted by the city 41 is not in accordance with the standards set forth in subdivision one of 42 this section, the board shall promptly so notify the city and may take 43 such other action under this act as it deems appropriate. 44 c. The board shall disapprove a financial plan or financial plan 45 modification if during a control period it determines that the financial 46 plan or financial plan modification is incomplete or fails to comply 47 with the provisions of subdivision one of this section. In disapproving 48 a financial plan or a financial plan modification the board may order 49 that one or more of the following actions be taken: 50 (i) expenditures or reserves to assure availability of amounts 51 required for debt service requirements on all bonds and notes of the 52 city, the city of Staten Island, if applicable and the covered organiza- 53 tions or expenditures required for adequate funding of programs of the 54 city, the city of Staten Island, if applicable and the covered organiza- 55 tions mandated by state or federal law and for which obligations areS. 8474 140 1 going to be incurred during the fiscal year, be increased to the levels 2 required to provide for their payment in full; 3 (ii) the revenue projections (or any item thereof) during any period 4 be adjusted to comply with the standards set forth in subdivision one of 5 this section; and 6 (iii) the aggregate expenditures projected for any period be reduced 7 to conform to revenue estimates certified by the board in order to 8 comply with the standards set forth in subdivision one of this section. 9 d. During a control period in the event that the city or the city of 10 Staten Island, if applicable shall, for any reason, fail to submit a 11 financial plan prior to the beginning of a fiscal year, as required by 12 paragraph a of this subdivision, or in the event that the board has not, 13 for any reason permitted under this act, approved a financial plan 14 submitted by the city or the city of Staten Island, if applicable prior 15 to the beginning of a fiscal year, the board shall formulate and adopt a 16 financial plan to be effective until the board approves a financial plan 17 submitted by the city or the city of Staten Island, if applicable. Any 18 financial plan so formulated by the board shall comply with the stand- 19 ards set forth in subdivision one of this section. The budgets and 20 operations of the city or the city of Staten Island, if applicable and 21 the covered organizations at all times shall be in conformance and 22 compliance with the respective financial plan then in effect. 23 e. After the initial adoption by the city, or the approval by the 24 board during a control period, or, during a control period, to the 25 extent the board deems necessary or desirable to accomplish the purposes 26 of this act, the initial adoption by the city of Staten Island, of a 27 financial plan, projections of revenues and expenditures and other esti- 28 mates contained in the financial plan shall be reexamined by the board 29 at least quarterly in consultation with the city and the covered organ- 30 izations, and during a control period the city or the city of Staten 31 Island, as applicable shall prepare and submit to the board financial 32 plan modifications at such times, in such detail and within such time 33 periods as the board may require in order to modify the respective 34 financial plan to conform to the standards set forth in subdivision one 35 of this section. During a control period in the event the board deter- 36 mines that (i) revenue estimates (or any item thereof) must be adjusted 37 to ensure compliance with the standards set forth in subdivision one of 38 this section, or (ii) that the city or a covered organization or the 39 city of Staten Island, as applicable is expending funds at a rate that 40 would cause expenditures to exceed the aggregate expenditure limitation 41 for the city or covered organization or the city of Staten Island, as 42 applicable provided for in the financial plan then in effect, prior to 43 the expiration of the fiscal year, the city or the city of Staten 44 Island, as applicable shall submit a financial plan modification to 45 effect such adjustments in revenue estimates and reductions in total 46 expenditures as may be necessary to conform to such standards or aggre- 47 gate expenditure limitations. If during a control period the city fails 48 to submit such modification after such determination as to adjustments 49 in revenue estimates or such determination as to rates of expenditures, 50 or to submit a financial plan modification in the detail or within the 51 time period specified by the board, or if such modification is disap- 52 proved by the board as not conforming to the standards set forth in 53 subdivision one of this section, the board may formulate and adopt such 54 financial plan modification as it deems appropriate to ensure that the 55 financial plan with respect to such entity continues to meet such stand- 56 ards. Such modification shall become effective on its adoption.S. 8474 141 1 Notwithstanding the provisions of this section, in the event the city or 2 the city of Staten Island, as applicable shall determine that, due to 3 unforeseen events during a fiscal year, compliance with the standards 4 set forth in paragraph a of subdivision one of this section would result 5 in a material adverse impact upon the delivery of essential services, 6 the city or the city of Staten Island, as applicable shall notify the 7 board of such determination, together with such information, projections 8 or analyses relating thereto as the board may require, and shall submit 9 a modification to the financial plan reflecting such determination. 10 During a control period the board shall disapprove any such modification 11 unless it finds that (i) [the city's] such determination is supported by 12 information, projections and analyses which the board deems substantial- 13 ly accurate in all material respects and (ii) such events, in its judg- 14 ment, warrant such modification to the financial plan to avoid such 15 adverse impact on the delivery of essential services. 16 f. The city or the city of Staten Island may, from time to time, 17 submit financial plan modifications to each plan for review by the 18 board. During a control period the board shall approve such modifica- 19 tions unless it determines that such modifications would constitute 20 grounds for disapproval of the financial plan pursuant to paragraph c of 21 this subdivision, or if applicable, pursuant to paragraph e of this 22 subdivision. 23 g. Anything contained in this act to the contrary notwithstanding, 24 during a control period the board may at any time disapprove or after 25 consultation with the city or the city of Staten Island, as appropriate, 26 revise the revenue estimates (or any item thereof) prepared by the city 27 or the city of Staten Island in connection with the preparation of a 28 financial plan or any modification thereto and determined by the board 29 not to be based on assumptions and methods of estimation which are 30 reasonable and appropriate under the circumstances and in view of the 31 objectives and purposes of the act. The board may after consultation 32 with the city or the city of Staten Island, as appropriate, determine 33 the estimated revenues of the city or the city of Staten Island, as 34 appropriate, and the covered organizations provided, however, that any 35 revenues estimated by the board shall be based on reasonable and appro- 36 priate assumptions and methods of estimation. 37 4. Each financial plan shall be in such form and shall contain such 38 information for each year during which the financial plan is in effect 39 as the board may specify, and shall, in such detail as the board may 40 from time to time prescribe, include projections of all revenues, 41 expenditures and cash flows (including but not limited to projected 42 capital expenditures and debt issuances) and a schedule of projected 43 capital commitments of the city or the city of Staten Island, as appro- 44 priate, and except in such instances as the board may deem appropriate 45 each of the covered organizations. In addition, each financial plan and 46 financial plan modification shall include a statement of the significant 47 assumptions and methods of estimation used in arriving at the projec- 48 tions contained therein, set forth in such form and in such detail as 49 the board may from time to time prescribe. 50 5. The city and the covered organizations and during a control period 51 to the extent the board deems necessary or desirable to accomplish the 52 purposes of this act, the city of Staten Island shall promptly furnish 53 the board with any information which the board may request to satisfy 54 itself that (i) projected employment levels, collective bargaining 55 agreements and other action relating to employee costs, capital 56 construction and such other matters as the board may specify, areS. 8474 142 1 consistent with the provisions made for such costs in the financial 2 plan, (ii) the city and the covered organizations or the city of Staten 3 Island, as appropriate are taking whatever action is necessary with 4 respect to programs mandated by state and federal law to ensure that 5 expenditures for such programs are limited to and covered by the expend- 6 itures stated in the financial plan, and (iii) adequate reserves are 7 provided to maintain programs mandated by state and federal law and for 8 which obligations are going to be incurred in the fiscal year and other 9 essential programs in the event revenues have been overestimated or 10 expenditures underestimated for any period. 11 6. For each financial plan and financial plan modification to be 12 prepared and submitted by the city to the board pursuant to the 13 provisions of this section, the covered organizations shall submit to 14 the city such information with respect to their projected expenditures, 15 revenues, cash flows and a schedule of projected capital commitments 16 for each year covered by such financial plan or modification as the city 17 shall determine. Notwithstanding any other provision of law limiting 18 the authority of the city with respect to any covered organization, the 19 city, in the preparation and submission of the financial plan and 20 modifications thereof, shall (except for debt service or for other 21 expenditures to the extent that such expenditures are required by law) 22 have the power to determine the aggregate expenditures to be allocated 23 to any covered organization in the financial plan and any modifications 24 thereto. 25 § 12-018. Section 9 of section 2 of chapter 868 of the laws of 1975, 26 constituting the New York state financial emergency act for the city of 27 New York, as amended by chapter 201 of the laws of 1978 and the section 28 heading and subdivisions 1 and 4 as amended by chapter 777 of the laws 29 of 1978, is amended to read as follows: 30 § 9. Establishment and application of the board fund. 1. There is 31 hereby established a fund designated the board fund. Commencing on 32 October twentieth, nineteen hundred seventy-five, and for the duration 33 of a control period, all revenues received or to be received by the city 34 or any covered organization and to the extent the board deems necessary 35 or desirable to accomplish the purposes of this act, the city of Staten 36 Island shall, unless exempted by order of the board, be revenues of the 37 board fund and shall be for the account of the city, the city of Staten 38 Island or the appropriate covered organizations, except (i) to the 39 extent expressly prohibited by federal law, (ii) where revenues of the 40 city are deposited in the general debt service fund, the TAN debt 41 service account or the RAN debt service account, or (iii) where such 42 revenues are pledged to the payment of any outstanding bonds, notes or 43 other obligations of covered organizations or state public authorities 44 as defined in section two hundred one of the civil service law. 45 Disbursement from the board fund shall be made by the board in accord- 46 ance with the approved financial plan except as provided in subdivision 47 five of this section nine. Commencing on October twentieth, nineteen 48 hundred seventy-five, and for the duration of a control period, all 49 funds and accounts established or thereafter established by the city, 50 the city of Staten Island or the covered organizations shall, unless 51 exempted by order of the board, thereafter be funds and accounts of the 52 board fund except to the extent expressly prohibited by federal law or 53 to the extent pledged by covenants or agreements relating to any 54 outstanding bonds, notes or other obligations of covered organizations 55 or public authorities as defined in section two hundred one of the civil 56 service law; and no monies or funds held in the general debt serviceS. 8474 143 1 fund, the TAN debt service account or the RAN debt service account shall 2 be part of the board fund. All such accounts of the board shall have 3 such captions and entries as the board shall determine to be necessary 4 to credit the foregoing revenues and receipts to the board fund. The 5 monies of the fund shall not be deemed to be money of the state or money 6 under its control. 7 2. The deposit of revenues into the board fund and the investment or 8 deposit of monies therein shall be made in accordance with and pursuant 9 to procedures established by the board. 10 3. In order to assure compliance with the financial plan, the board 11 shall from time to time adopt procedures controlling the disbursement of 12 monies from the board fund. The board shall authorize the city or, if 13 applicable, the city of Staten Island to make all disbursements of 14 [city] such entity's revenues from the board fund, which disbursements 15 shall be made in accordance with the approved financial plan; provided, 16 that the board may withdraw such authorization if it determines that (a) 17 any disbursements made or to be made by the city or, if applicable, the 18 city of Staten Island have not been or are likely not to be in compli- 19 ance with the approved financial plan, (b) the city or, if applicable, 20 the city of Staten Island has violated any other provisions of this act, 21 or (c) the city has violated an agreement with any holder or guarantor 22 of bonds or notes issued by the city or a state financing agency. 23 4. Within the board fund there is hereby established a special 24 account designated the debt service repayment account. The board shall 25 from time to time direct, in accordance with procedures adopted by the 26 board, the deposit in the debt service repayment account of such amounts 27 as the board shall, in its discretion, determine to be sufficient to 28 meet the debt service requirements of the covered organizations on their 29 bonds and notes (other than bonds and notes of covered organizations 30 payable from revenues not included in the board fund) as they become 31 due. Amounts in the debt service repayment account shall be used to 32 meet such debt service requirements of the covered organizations. 33 5. If at any time the board determines that the amount then held in 34 the board fund or the amount estimated by the board to be held in the 35 board fund is or will be insufficient to meet the expenditures in the 36 amounts and at the times required by the financial plan, the board shall 37 require disbursements from the board fund to be made in the following 38 order or priority unless otherwise required by law of the United States 39 of America: (i) the payment of amounts from the appropriate account of 40 the board fund to the debt service repayment account, the general debt 41 service fund, the TAN debt service account and the RAN debt service 42 account, to maintain therein the amount required, to meet debt service 43 requirements of the city, the city of Staten Island, if appropriate and 44 the covered organizations on their bonds and notes as they may become 45 due, (ii) the payment of other liabilities having statutory or contrac- 46 tual priority over remaining liabilities of the city , the city of 47 Staten Island, if appropriate and the covered organizations whose monies 48 are included in the board fund, and (iii) the payment of other obli- 49 gations on an allocated basis as specified by the city or, the city of 50 Staten Island, if appropriate, for expenditures in accordance with the 51 financial plan provided that, in the event that the city or, the city of 52 Staten Island, if appropriate, fails to so specify, the board may with- 53 hold payment of any of such other obligations or may direct their 54 payment pro rata.S. 8474 144 1 6. The board shall cause to be performed such pre-audit and post-au- 2 dit reviews of the board funds and disbursements therefrom as it may 3 determine. 4 § 12-019. Section 9-a of section 2 of chapter 868 of the laws of 1975, 5 constituting the New York state financial emergency act for the city of 6 New York, as added by chapter 201 of the laws of 1978, subdivisions 1, 7 2, 3, 4, 6, 7, 8, 9 and 11 as amended, subdivision 10 as renumbered and 8 amended and subdivision 12 as added by chapter 777 of the laws of 1978, 9 is amended to read as follows: 10 § 9-a. Establishment and application of a general debt service fund. 11 1. Commencing on the first day of the first full fiscal quarter subse- 12 quent to the first sale of a federally guaranteed city obligation, the 13 city shall establish a general debt service fund for the purpose of 14 paying debt service due or becoming due in the then current fiscal year 15 and in subsequent fiscal years until the later of (i) the termination 16 date of this act or (ii) the date when all general obligation bonds of 17 the city outstanding as of the establishment of the city of Staten 18 Island have been paid or payment therefor has been provided for in 19 accordance with their terms. All monies in the fund shall be held by 20 the comptroller, who shall administer and maintain the fund in accord- 21 ance with the provisions of this section. 22 2. All payments of or on account of real estate taxes or assessments 23 due to the city or the city of Staten Island, other than the proceeds of 24 tax anticipation notes, shall be immediately upon receipt deposited in 25 an account designated for the municipality to which payment was due 26 established in such fund. The comptroller shall retain, disburse and 27 apply monies in the fund during each month as follows: 28 a. During the first month of each fiscal quarter, there shall be 29 retained in the fund, subject to the provisions of subdivision three of 30 this section, all real estate tax payments deposited in the fund until 31 there shall have been retained from monies so deposited during such 32 month in the applicable account an amount equal to the total monthly 33 debt service, computed as of the date of any disbursement of money from 34 the fund, for the second and third months of such fiscal quarter; 35 provided that such amount shall be reduced by any amount already on 36 deposit in the fund which may be used to pay the monthly debt service 37 for such months. 38 Amounts to be on deposit in such accounts shall be determined as 39 follows: (i) with respect to the account of the city, debt service shall 40 include payments with respect to (a) all bonds and notes of the city 41 issued on or after the date of establishment of the city of Staten 42 Island and (b) all bonds or notes of the city prior thereto multiplied 43 by a fraction, the numerator of which is the total assessed valuation of 44 all taxable real property located in the city as of the date of such 45 establishment and the denominator of which is the total assessed valu- 46 ation of all taxable real property located in the city and the city of 47 Staten Island combined as of the date of such establishment and (ii) 48 with respect to the account of the city of Staten Island, debt service 49 shall include payments with respect to (a) all bonds or notes of the 50 city of Staten Island and (b) all bonds or notes of the city issued 51 prior to the establishment of the city of Staten Island multiplied by a 52 fraction, the numerator of which is the total assessed valuation of all 53 taxable real property located in the city of Staten Island as of the 54 date of such establishment and the denominator of which is the same as 55 in clause (b) of subparagraph (i) of this paragraph. To the extent 56 either account contains insufficient amounts to make payments on theS. 8474 145 1 respective allocable portion of city bonds or notes issued prior to the 2 establishment of the city of Staten Island and such municipalities own 3 bonds or notes issued subsequent thereto, amounts on deposit in the 4 account of the other municipality in excess of the amounts required to 5 provide for payment of such latter municipality's own bonds or notes 6 issued subsequent to such establishment and allocable portion of city 7 bonds or notes issued prior thereto, shall be retained in such account 8 and applied to the payment of bonds or notes of the city issued prior to 9 such establishment to the extent of any insufficiency in such accounts. 10 For purposes of this section, fiscal quarter shall mean the three- 11 month period beginning July first, October first, January first or April 12 first, and monthly debt service shall mean, as of any date of computa- 13 tion, the amount of monies equal to the aggregate of (i) all interest 14 payable during such month on bonds and notes of the city or the city of 15 Staten Island, as applicable, plus (ii) the amount of principal (includ- 16 ing payments into sinking funds) maturing or otherwise coming due during 17 such month on all bonds of the city or the city of Staten Island, as 18 applicable, (excluding principal payments made from sinking funds 19 required by the terms of certain city or the city of Staten Island, as 20 applicable, bonds), plus (iii) the amount of principal to be paid on 21 notes of the city or the city of Staten Island, as applicable, during 22 such month from sources other than the proceeds of bonds or renewal 23 notes (exclusive of revenue anticipation notes and tax anticipation 24 notes or renewals thereof issued less than two years prior to the date 25 of computation). 26 b. During the second and third months of each fiscal quarter, there 27 shall be retained in the fund, subject to the provisions of subdivision 28 three of this section, all real estate tax payments deposited in the 29 fund until there shall have been retained from monies so deposited 30 during such month an amount equal to the total monthly debt service, 31 computed as of the date of any disbursement of monies from the fund, for 32 the first month of the next succeeding fiscal quarter; provided that 33 such amount shall be reduced by any amount already on deposit in the 34 fund which may be used to pay the monthly debt service for such month. 35 c. During any month of a fiscal quarter, after the retentions 36 required by paragraphs a and b of this subdivision have been made for 37 such month, the comptroller shall deposit any remaining balance of real 38 estate taxes received during such month, first into the TAN debt service 39 account to the extent required under subdivision six of this section, 40 and second into the board fund to be applied in accordance with proce- 41 dures of the board. 42 d. The city may at any time pay into the fund any monies required by 43 law to be used to pay monthly debt service and any other monies avail- 44 able for such purpose. 45 3. The board may approve, subject to agreements made with the holders 46 or guarantors of outstanding notes or bonds issued by or for the benefit 47 of the city after the effective date of this act, criteria for calculat- 48 ing a proportion of real estate tax receipts to be retained in the fund 49 in order to provide for the retention of amounts required by the 50 provisions of subdivision two of this section in lieu of the retention 51 of all initial receipts as required by such subdivision; provided, that 52 if the board at any time determines that retentions in the fund pursuant 53 to the provisions of such subdivision are or are likely to be insuffi- 54 cient to provide for the payment of monthly debt service when due, in 55 order to ensure that the amounts on deposit in the fund will be suffi- 56 cient to pay monthly debt service when due, the board shall require (i)S. 8474 146 1 that real estate tax receipts be retained in the fund in greater amounts 2 or at earlier dates than the provisions of such subdivision require, or 3 (ii) that other revenues or cash resources of the city be paid into the 4 fund. The board shall consider the impact of earlier or larger 5 retention of real estate tax receipts on the city's seasonal borrowing 6 requirements when determining whether it shall require such additional 7 retention or that other revenues or cash resources of the city be paid 8 into the fund. Prior to the issuance by the city of any bonds or notes, 9 the board shall review any criteria then in effect which determine the 10 proportion of real estate tax receipts to be retained in the fund to 11 determine whether the proposed debt service schedule for such bonds or 12 notes is consistent with the monies which will be available therefor or 13 whether such criteria should be revised. The board shall from time to 14 time take such action as it determines is necessary, including disap- 15 proval of a proposed issue pursuant to paragraph f of subdivision one of 16 section seven, so that the monies in the fund shall be adequate to meet 17 debt service requirements. 18 4. Commencing on the first day of the second month of the first full 19 fiscal quarter subsequent to the first sale of a federally guaranteed 20 city obligation, the payment of monthly debt service shall be made, 21 first, from amounts retained in the fund. Amounts retained in the fund 22 shall be used only to pay debt service of the city. 23 5. Upon the issuance of any tax anticipation notes following the 24 effective date of this act, the comptroller shall establish and, so long 25 as any tax anticipation notes shall be outstanding, shall maintain a tax 26 anticipation note debt service account within the fund for the purpose 27 of paying the principal of tax anticipation notes. 28 6. The city shall determine the date on which the principal due or to 29 become due on an outstanding issue of tax anticipation notes shall equal 30 ninety percent of the available tax levy with respect to such issue, and 31 upon reasonable notice thereof the comptroller shall commence on such 32 date to pay into the TAN debt service account from collections of such 33 taxes and assessments, after retaining amounts required to be deposited 34 in the fund, amounts sufficient to pay when due, the principal of such 35 issue of tax anticipation notes. The payments of the principal of tax 36 anticipation notes shall be made, first, from amounts retained in the 37 TAN debt service account. 38 7. Upon the issuance of any revenue anticipation notes following the 39 effective date of this act, the comptroller shall establish and, so long 40 as any revenue anticipation notes shall be outstanding, shall maintain a 41 revenue anticipation note debt service account within the fund for the 42 purpose of paying the principal of revenue anticipation notes. Each 43 specific type of revenue in anticipation of which such notes are issued 44 and available for such purpose shall be deposited in such account imme- 45 diately upon receipt by the city. Where such revenue consists of state 46 aid or other revenue to be paid to the city by the comptroller, on the 47 date such revenue is payable to the city, the comptroller shall deposit 48 such revenue directly into such account in lieu of payment to the city. 49 All revenues deposited in the RAN debt service account shall be paid 50 immediately into the board fund except as otherwise provided in subdivi- 51 sion eight of this section. 52 8. The city shall determine the date on which the principal due or to 53 become due on an outstanding issue of revenue anticipation notes shall 54 equal ninety percent of the total amount of revenue against which such 55 notes were issued remaining to be paid to the city on or before the 56 fifth day prior to the maturity date of such notes and upon reasonableS. 8474 147 1 notice thereof the comptroller shall commence on such date to retain in 2 the RAN debt service account from amounts deposited or to be deposited 3 therein of each specific type of revenue in anticipation of which reven- 4 ue such anticipation notes were issued, an amount sufficient to pay, 5 when due, the principal of such revenue anticipation notes. Monies 6 retained in such account shall vest immediately in the comptroller in 7 trust for the benefit of the holders of the revenue anticipation notes 8 in anticipation of which such notes were issued. No person having any 9 claim of any kind in tort, contract or otherwise against such city shall 10 have any right to or claim against any monies of the state appropriated 11 by the state and in anticipation of which such notes have been issued, 12 other than a claim for payment by the holders of such notes, and such 13 monies shall not be subject to any order, judgment, lien, execution, 14 attachment, setoff or counter-claim by any such person; provided, howev- 15 er, that nothing contained in this paragraph shall be construed to 16 limit, impair, impede or otherwise adversely affect in any manner the 17 rights or remedies of the purchasers and holders and owners of any bonds 18 or notes of the state or any agency, instrumentality, public benefit 19 corporation or political subdivision thereof, including the city of New 20 York, under which such purchasers and holders and owners have any right 21 of payment of such bonds or notes by recourse to state aid or local 22 assistance monies held by the state or for the payment of which bonds or 23 notes state aid or local assistance monies are a designated source. The 24 payment of the principal of revenue anticipation notes shall be made 25 first from amounts retained in the RAN debt service account. 26 9. Whenever the amount contained in the TAN debt service account or 27 the RAN debt service account exceeds the amount required to be retained 28 in such account such excess monies, including earnings on investments of 29 monies in the fund, shall be withdrawn from such account and paid into 30 the board fund. 31 10. Subject to agreements made with holders or guarantors of 32 outstanding notes or bonds issued by or for the benefit of the city 33 after the effective date of this act, the comptroller shall invest the 34 monies retained in the fund in accordance with law. 35 11. The limitations imposed upon the city by this section shall be in 36 addition to any limitations imposed upon the city or the city of Staten 37 Island under the local finance law. In the event any provisions of the 38 local finance law shall be inconsistent with the provisions of this 39 section, the provisions of this section shall prevail. The requirements 40 of this section shall not apply to any note of the city held by the 41 municipal assistance corporation for the city of New York to the extent 42 that such corporation has evidenced its intention not to present such 43 notes for payment during the fiscal year in which the determination is 44 made provided that such notes were held by such corporation on June 45 thirtieth, nineteen hundred seventy-eight or were issued in exchange for 46 or in refunding or renewal of notes held by such corporation on such 47 date. 48 12. Notwithstanding any other provision of this section, the city and 49 the city of Staten Island, if applicable, may, at any time, subject to 50 approval by the comptroller, designate a trust company or bank having 51 its principal place of business in the state of New York and having the 52 powers of a trust company in the state of New York to hold all or any 53 part of the monies in the fund and to administer and maintain the monies 54 so held in accordance with the applicable provisions of this section and 55 any agreements made pursuant thereto.S. 8474 148 1 § 12-020. Section 11 of section 2 of chapter 868 of the laws of 1975, 2 constituting the New York state financial emergency act for the city of 3 New York, subdivisions 1 and 3 as amended by chapter 777 of the laws of 4 1978, is amended to read as follows: 5 § 11. Prohibitions; penalties. 1. During a control period, (i) no 6 officer or employee of the city or of any of the covered organizations 7 or to the extent the board deems necessary or desirable to accomplish 8 the purposes of this act, the city of Staten Island shall make or 9 authorize an obligation or other liability in excess of the amount 10 available therefor under the financial plan as then in effect; (ii) no 11 officer or employee of the city or of any of the covered organizations 12 or the city of Staten Island shall involve the city, the city of Staten 13 Island, if applicable or any of the covered organizations in any 14 contract or other obligation or liability for the payment of money for 15 any purpose required to be approved by the board unless such contract, 16 obligation or liability has been so approved or deemed to be approved as 17 provided in paragraphs e and f of subdivision one of section seven and 18 unless such contract or obligation or liability is in compliance with 19 the financial plan as then in effect. 20 2. No officer or employee of the city or any of the covered organiza- 21 tions, or, the city of Staten Island, if applicable, shall take any 22 action in violation of any valid order of the board or shall fail or 23 refuse to take any action required by any such order or shall prepare, 24 present or certify any information (including any projections or esti- 25 mates) or report for the board or any of its agents that is false or 26 misleading, or, upon learning that any such information is false or 27 misleading, shall fail promptly to advise the board or its agents there- 28 of. 29 3. In addition to any penalty or liability under other law, any offi- 30 cer or employee of the city or any of the covered organizations, or, the 31 city of Staten Island, if applicable, who shall knowingly and willfully 32 violate subdivision one or two of this section shall be subject to 33 appropriate administrative discipline, including, when circumstances 34 warrant, suspension from duty without pay or removal from office by 35 order of either the governor or the mayor or the mayor of the city of 36 Staten Island, if applicable, and shall, upon conviction, be guilty of a 37 misdemeanor. 38 4. In the case of a violation of subdivision one or two of this 39 section by an officer or employee of the city, or, the city of Staten 40 Island, if applicable, or any of the covered organizations, the mayor or 41 the mayor of the city of Staten Island, if applicable, or the chief 42 executive officer of such covered organization shall immediately report 43 to the board all pertinent facts together with a statement of the action 44 taken thereon. 45 § 13-001. Section 25-a of the general city law is amended by adding a 46 new undesignated paragraph to read as follows: 47 For the purposes of this article, a city which is incorporated on or 48 after the first of January next succeeding the date on which this para- 49 graph shall have become a law and which is comprised of a geographical 50 area which on the date immediately prior to such incorporation had been 51 wholly contained within a city with a population of one million or more 52 shall continue to be treated as a city with a population of one million 53 or more. 54 § 13-002. Section 25-w of the general city law is amended by adding a 55 new subdivision (g) to read as follows:S. 8474 149 1 (g) For the purposes of this article, a city which is incorporated on 2 or after the first of January next succeeding the date on which this 3 subdivision shall have become a law and which is comprised of a 4 geographical area which on the date immediately prior to such incorpo- 5 ration had been wholly contained within a city with a population of one 6 million or more shall continue to be treated as a city with a population 7 of one million or more. 8 § 13-003. Section 1 of chapter 772 of the laws of 1966 relating to 9 imposition of a city business tax is amended by adding a new undesig- 10 nated paragraph to read as follows: 11 For the purposes of this section, a city which is incorporated on or 12 after the first of January next succeeding the date on which this para- 13 graph shall have become a law and which is comprised of a geographical 14 area which on the date immediately prior to such incorporation had been 15 wholly contained within a city with a population of one million or more 16 shall continue to be treated as a city with a population of one million 17 or more. 18 § 13-004. Section 2 of chapter 772 of the laws of 1966 relating to 19 imposition of a city business tax is amended by adding a new undesig- 20 nated paragraph to read as follows: 21 For the purposes of this section, a city which is incorporated on or 22 after the first of January next succeeding the date on which this para- 23 graph shall have become a law and which is comprised of a geographical 24 area which on the date immediately prior to such incorporation had been 25 wholly contained within a city with a population of one million or more 26 shall continue to be treated as a city with a population of one million 27 or more. 28 § 13-005. Section 1301 of the tax law is amended by adding a new 29 subsection (f) to read as follows: 30 (f) For the purposes of this article, a city which is incorporated on 31 or after the first of January next succeeding the date on which this 32 subsection shall have become a law and which is comprised of a geograph- 33 ical area which on the date immediately prior to such incorporation had 34 been wholly contained within a city with a population of one million or 35 more shall continue to be treated as a city with a population of one 36 million or more. 37 § 14-001. The administrative code of the city of Staten Island is 38 enacted to read as follows: 39 Title 6 - General Services and Contracting 40 § 6-101 Definitions. As used in this title: 41 1. "Commissioner" shall mean the commissioner of the department of 42 general services and contracting. 43 2. "Department" shall mean the department of general services and 44 contracting. 45 § 6-102 Commissioner. The head of the department shall be the commis- 46 sioner. 47 § 6-103 Powers and duties. The commissioner shall have the power and 48 it shall be his or her duty to perform all the functions and operations 49 of the city of Staten Island relating to the construction, maintenance 50 and care of public buildings and facilities; the procurement of goods 51 and other personal property; the disposition of surplus property; the 52 providing to city agencies of services other than personal services; the 53 acquisition, disposition and management by the city of real property 54 other than housing; the providing of automotive, communication, energy 55 and data processing services including without limitation:S. 8474 150 1 1. Procurement of goods, other personal property and services. With 2 respect to the procurement and disposal of goods and other personal 3 property and the procurement of services other than personal services, 4 the commissioner shall have the following power and duties: 5 (a) to purchase, inspect, store and distribute all goods, supplies, 6 materials, equipment and other personal property required by any city 7 agency, except as otherwise provided by law, or by any office of any 8 county wholly included in the city for which supplies, materials or 9 equipment are required, payment for which is made from the city treas- 10 ury; 11 (b) to establish and maintain one or more city storehouses, operating 12 therein a modern system of stores control to supply the estimated 13 current needs of the agencies for which the commissioner is authorized 14 to purchase. All purchases other than such purchases for stock for 15 estimated needs and all deliveries from such stock shall be upon justi- 16 fied requisitions. The commissioner shall also oversee the establish- 17 ment of efficient and economical systems of stores control in other city 18 agencies and review the operations of such storehouses to assure their 19 efficient and economical management; 20 (c) to receive all surplus and obsolete personal property not required 21 by any agency for which the commissioner has the power to make purchases 22 and all such agencies shall surrender such property to the commissioner 23 who shall dispose thereof pursuant to rules promulgated by him or her 24 governing its redistribution, exchange, transfer, sale or other disposi- 25 tion; 26 (d) to procure, supply and manage contractual services other than 27 personal or professional services for the use of city agencies; 28 (e) to promulgate rules governing the purchase, payment, storage, and 29 delivery of goods, supplies, materials and equipment by agencies of the 30 city and the disposal of surplus and obsolete materials, and to super- 31 vise their enforcement; and 32 (f) to classify all goods, supplies, materials and equipment. 33 2. Energy; gas and electricity. The commissioner shall have charge and 34 control of furnishing the city or any part thereof, by contract or 35 otherwise, with gas, electricity, steam, hot water or other energy 36 source, except such functions as are exercised by the public utility 37 service of the city. 38 3. Data processing services; information technology and telecommuni- 39 cations. (a) For purposes of this title "telecommunications" shall mean 40 transmission of writings, signals, pictures, numbers and sounds or 41 intelligence of all kinds by and of wire, cable, optical fiber, radio, 42 satellite, electromagnetic wave, microwave or other like connection 43 between points of origin and reception of such transmission, including 44 all instrumentalities, facilities, apparatus and services incidental to 45 such transmission. 46 (b) The commissioner shall provide data processing support, program- 47 ming, and computer systems analysis services for city agencies when 48 necessary or desirable, in accordance with executive orders promulgated 49 by the mayor. 50 (c) In addition, the commissioner shall have further powers and 51 duties: 52 (i) to plan, formulate, coordinate and advance information technology 53 and telecommunications policy for the city; 54 (ii) to develop, maintain and implement a long range telecommuni- 55 cations strategy;S. 8474 151 1 (iii) to administer, subject to the approval of the council where 2 applicable, all franchises and revocable consents relating to telecommu- 3 nications including without limitation, proposing authorizing resol- 4 utions for telecommunications, franchises, developing and issuing 5 requests for proposals or other solicitations of proposals for telecom- 6 munications franchises, selecting telecommunications franchises, review- 7 ing and approving petitions for revocable consents relating to telecom- 8 munications, negotiating the terms of contracts or other agreements 9 relating to telecommunications franchises and revocable consents, 10 enforcing the terms and conditions of such agreements; 11 (iv) to develop municipal uses of cable television and coordinate 12 interagency uses of cable television and other telecommunications; 13 (v) to ensure that priority is given on at least one municipal channel 14 to the cable casting of the public proceedings of the council and its 15 committees, the city planning commission and other state and city agen- 16 cies; 17 (vi) to provide to city agencies such land-based and wireless voice, 18 data, video or other communication facilities, and technical assistance 19 or other assistance with respect to such facilities, as they may require 20 for the effective discharge of their responsibilities; 21 (vii) to participate in developing, maintaining and implementing a 22 long-range computer system and data communications strategy for the 23 city; 24 (viii) to assist in providing interagency coordination on matters 25 related to data communications activities and interfacing of computers; 26 (ix) to provide appropriate, reliable, cost-effective and responsive 27 computer and data communications services to agencies that require such 28 services by purchasing and maintaining hardware, software and such other 29 goods and services as may be necessary to effectively discharge the 30 powers and duties of the department; 31 (x) to provide assistance to agencies in meeting their data processing 32 and data communications objectives; 33 (xi) to provide agencies using or proposing to use the services of 34 this department with technical assistance in determining feasibility and 35 resource requirements; 36 (xii) to simplify access to shared information, reduce communication 37 costs and provide access to multiple computer systems by connecting 38 computers and terminals of various city agencies, and of other public 39 entities requesting such connection where such provision to such other 40 entities would in the judgment of the commissioner be in the city's 41 interests; 42 (xiii) to plan and provide telecommunications coordination in support 43 of disaster recovery; 44 (xiv) to ensure security for data and other information handled by 45 this department; 46 (xv) to institute procedures to assure restrictions of access to 47 information to the appropriate individuals, where such restrictions are 48 required by law; and 49 (xvi) to perform such other responsibilities with respect to informa- 50 tion technology and telecommunications matters, including responsibil- 51 ities delegated elsewhere by the code, as the mayor shall direct. 52 4. Automotive services. The commissioner shall acquire by purchase, 53 lease or otherwise, vehicles and other automotive equipment for the use 54 of city agencies; manage, maintain, store and operate a fleet of motor 55 vehicles; assign fleets to agencies in accordance with the direction of 56 the mayor and ensure the effective operation of all shops, yards,S. 8474 152 1 garages, fuel depots and other facilities required for the maintenance 2 of fleets operated by agencies; and ensure the maintenance of records 3 for all city owned vehicles. 4 5. Right of entry. The commissioner, officers and employees of the 5 department may, in accordance with law, enter upon public or private 6 property for the purpose of making surveys, borings or other investi- 7 gations necessary for the exercise of powers or the performance of the 8 duties of the commissioner and the department. Refusal to permit such 9 entry shall be a misdemeanor punishable by not more than thirty days 10 imprisonment or by a fine of not more than $50.00, or both. 11 § 6-104 Emergency communications systems of other agencies. With 12 respect to emergency communications systems and emergency communications 13 facilities administered by another agency or another municipality, the 14 department shall exercise its powers and duties only as the mayor shall 15 direct or at the request of such agency. 16 § 6-105 Records and information services. Within the department there 17 shall be a division of records and information services which shall 18 include, but not be limited to, municipal archives, a municipal refer- 19 ence and research center and a municipal records management division. 20 1. The division shall be responsible for the maintenance, access to 21 and preservation of records of the city. In addition, the division shall 22 develop and promulgate standards and procedures to effectively perform 23 those duties. 24 The division shall provide appropriate information and assistance to 25 the mayor and to members of the council. It shall also provide, within 26 reasonable limits, access to the public to records, books and documents 27 within its care and control. 28 2. The division is authorized to arrange for the exchange, sale, 29 purchase and loan of information materials from and with legislative 30 research services, libraries and institutions in other municipalities, 31 governmental bodies and public authorities. 32 3. The division shall: 33 (a) provide for the distribution of publications of the city, where 34 such authority is not vested in another city agency, and issue at regu- 35 lar intervals, no less than quarterly, a bulletin describing its facili- 36 ties and resources; 37 (b) institute actions in replevin to recover any historical and/or 38 other documents properly owned by, or originating from, the county of 39 Richmond prior to the creation of the preceding municipality; 40 (c) report annually by the thirtieth of September to the mayor, and 41 council on the powers and duties herein-mentioned including, but not 42 limited to, the cost of savings effectuated by the division during the 43 preceding fiscal year. 44 § 6-106 Departmental libraries. The commissioner shall analyze the 45 needs of each city agency, except the law department, with respect to 46 the establishment and maintenance of any library or research facility 47 therein, and make such recommendations as may be appropriate in the 48 circumstances. Any libraries or research facilities so established 49 shall, among any of its other duties, be responsible for the mainte- 50 nance, access to and preservation of records within its care and 51 control. 52 Title 7 - Legal Affairs 53 § 7-102 Department; corporation counsel. 1. There shall be a law 54 department the head of which shall be the corporation counsel. 55 2. The first assistant corporation counsel, appointed by the corpo- 56 ration counsel, during absence, disability or the vacancy of the officeS. 8474 153 1 of the corporation counsel, shall assume all powers and perform all 2 duties of the corporation counsel and shall act as corporation counsel 3 until a new appointment is made. 4 3. The corporation counsel may empower, by written authority filed 5 and remaining on record in the department, any of the assistants to 6 perform certain duties of the corporation counsel. 7 § 7-103 Powers and duties. The corporation counsel shall: 8 1. be attorney and counsel for the city and every agency thereof and 9 shall have charge of and conduct all the law business of the city and 10 its agencies; 11 2. have charge of and conduct the legal proceedings necessary in open- 12 ing, widening, altering and closing streets and in acquiring real estate 13 or in city condemnation proceedings; 14 3. have charge of and conduct the preparation of all leases, deeds, 15 contracts, bonds and all other legal papers for the city or connected 16 agency or officer thereof; and the corporation counsel shall approve the 17 form of all such deeds, bonds, contracts, leases and legal papers; 18 4. have the right to institute actions in law or equity to maintain, 19 defend and establish the rights, interests, revenues, property, privi- 20 leges, franchises or demands of the city or the people thereof, and to 21 collect any money, debts, fines or penalties or enforce the laws; 22 5. not be empowered to compromise, settle or adjust any rights, 23 claims, demands or causes of action in favor of or against the city, to 24 offer or confess judgment against the city or accept any offer of judg- 25 ment in favor of the city without the approval of the comptroller; and 26 6. have the authority to assign one or more assistants to any agency; 27 and the head of each agency may employ staff counsel to assist in legal 28 affairs of the agency. 29 § 7-104 Legal authority. 1. All actions and proceedings for the 30 recovery of penalties for the violation of any law shall be brought in 31 the name of the city and not in that of any agency. 32 2. The mayor may delegate to any agency, after consultation with the 33 corporation counsel and head of the agency, responsibility for the 34 conduct of routine legal affairs of the agency. 35 3. The mayor may assign or transfer attorneys from the law department 36 of the agency to assist in such delegated functions. 37 4. The corporation counsel shall monitor and evaluate on a regular 38 basis the exercise of authority delegated. 39 5. The mayor, upon recommendation of the corporation counsel, may 40 suspend or withdraw any delegated authority whenever in his or her judg- 41 ment the interests of the city justify such action. 42 § 7-105 City sheriff; powers and duties. 1. There shall be a city 43 sheriff who shall be appointed by the mayor. 44 2. Except as otherwise provided by law, the functions, powers and 45 duties formerly exercised by the sheriff of the preceding municipality 46 as of the date of establishment of the city of Staten Island shall 47 remain with the city sheriff. 48 § 7-106 City clerk; powers and duties. The city clerk shall: 49 1. be the chief archivist of the city and shall advise the mayor and 50 council on those matters concerning the preservation of the city's 51 historical documentation; 52 2. act as the chief reference and research librarian for the mayor and 53 council and shall ensure that all significant materials pertaining to 54 operations of the city be preserved and readily available for use; 55 3. act as the chief public records officer for the mayor and council 56 and shall, except as otherwise provided by law, establish standards forS. 8474 154 1 the proper records management in any agency or government instrumentali- 2 ty funded in whole or in part from local tax levy monies; and 3 4. have the power formerly exercised or delegate any of the functions 4 and duties vested in such city clerk by law of the preceding munici- 5 pality as it existed on the date of establishment. 6 Title 8 - Reserved 7 Title 9 - Criminal Justice 8 Chapter 1 9 Department of Corrections 10 § 9-101 Definitions. As used in this title: 11 1. "Commissioner" shall mean the commissioner of the department of 12 corrections. 13 2. "Department" shall mean the department of corrections. 14 3. "Division" shall mean the division of juvenile justice. 15 § 9-102 Commissioner. The head of the department shall be the commis- 16 sioner of corrections. 17 § 9-103 Powers and duties of commissioner. 1. The commissioner shall 18 have: 19 a. charge and management of all institutions of the city (including 20 all hospital wards) for the care and custody of felons; misdemeanants; 21 all prisoners under arrest and waiting arraignment (including those who 22 require hospital care and/or psychiatric observation or treatment); 23 violators of ordinances or local laws and for the detention of any 24 witnesses who are unable to furnish security for their appearance in 25 criminal proceedings; 26 b. sole power and authority concerning the care, custody and control 27 of all court pens for the detention of prisoners while in custody of the 28 state of New York within the city of Staten Island, the family court of 29 the state of New York, the supreme court in the county of Richmond and 30 of all vehicles employed in the transportation of prisoners who have 31 been sentenced, are awaiting trial or being held for other cause; 32 c. charge and management of persons or any other institution of the 33 city placed under his or her jurisdiction; 34 d. all authority concerning the care and custody of felons, misdemean- 35 ants or violators of local laws held in institutions under his or her 36 jurisdiction; 37 e. all authority in relation to the custody and transportation of 38 persons held for any criminal proceedings, all prisoners under arrest 39 and waiting arraignment (including those requiring hospital care and/or 40 psychiatric treatment) in the city; and 41 f. supervision and responsibility for the planning and implementation 42 of re-training, counseling, and rehabilitative programs for felons, 43 misdemeanants and violators of local laws who are held in institutions 44 under his or her charge. 45 2. The commissioner shall maintain and operate buildings and struc- 46 tures under his or her jurisdiction and may construct additions and make 47 repairs to such buildings by use of the labor of persons under his or 48 her care and custody. 49 § 9-104 Labor of prisoners. 1. Every inmate of an institution under 50 the authority of the commissioner shall be employed in some form of 51 industry, farming operations or other employment and any products there-S. 8474 155 1 of shall be utilized in the institutions under the commissioner's juris- 2 diction. 3 2. Any persons held for trial may be employed in the same manner as 4 sentenced prisoners; however, such sentenced prisoners must give their 5 consent in writing. 6 3. Inmates and/or prisoners held for trial may be detailed by the 7 commissioner to perform work or service on the grounds, buildings, or on 8 any public improvement under the charge of any other agency. 9 Chapter 2 10 Division of Juvenile Justice 11 § 9-201 The division of juvenile justice; director. 1. There shall be 12 within the department of corrections a division of juvenile justice. 13 2. The head of the division shall be the director of juvenile justice. 14 § 9-202 Powers and duties of director. The director shall: 15 1. establish, initiate, control, maintain and operate secure and non- 16 secure facilities for the temporary care and maintenance of children 17 alleged to be or adjudicated as juvenile delinquents. 18 2. have the power to contract with other public and private agencies 19 for services in order to ensure adequate, suitable and accessible accom- 20 modations and that proper care will be available when required for 21 detention. 22 3. establish regulations for the operation of secure and non-secure 23 detention facilities and shall provide or secure the availability of 24 accessible and adequate non-secure detention facilities certified by 25 the state division of youth. 26 4. develop, implement and maintain systems to collect, store and 27 disseminate information concerning juvenile delinquency, juvenile crime 28 and the juvenile justice system. 29 5. participate with other city agencies in development, implementation 30 and maintenance of juvenile justice information. 31 Title 10 - Reserved 32 TITLE 11 33 TAXATION AND FINANCE 34 CHAPTER 1 35 DEPARTMENT OF FINANCE 36 § 11-001 Definitions and applicability. Any terms in this title refer- 37 ring to a governmental entity of the preceding municipality shall be 38 deemed to refer to such entity of the preceding municipality or its 39 successor entity under the city of Staten Island. Any action taken in 40 compliance with the provisions of this title prior to the incorporation 41 of the city of Staten Island shall be deemed to comply with the require- 42 ments of this title. For the purposes of this title, the term preceding 43 municipality shall mean the city government for the geographical area of 44 the city of Staten Island which existed immediately prior to the incor- 45 poration of the city of Staten Island. 46 § 11-101 Power of department of finance to adopt a seal. The depart- 47 ment of finance is authorized to adopt a seal. 48 § 11-102 Finance department; records; copies when in evidence. A 49 copy of any paper, record, book, document or map, filed in the depart- 50 ment of finance, or the minutes, records or proceedings, or any portion 51 thereof, of any board or commission of which the commissioner of 52 finance, is or may become a member, when certified by the commissioner 53 of finance, or a deputy commissioner of finance, to be a correct copy ofS. 8474 156 1 the original, shall be admissible in evidence in any trial, investi- 2 gation, hearing or proceeding in any court, or before any commissioner, 3 board or tribunal, with the same force and effect as the original. 4 Whenever a subpoena is served upon the commissioner of finance, or any 5 member of a board or commission of which the commissioner of finance is 6 a member, or upon any officer or employee of the department of finance, 7 or upon any officer or employee of such boards or commissions, requiring 8 the production upon any trial or hearing of an original paper, document, 9 book, map, record, minutes or proceedings, the commissioner of finance, 10 in his or her discretion, may furnish a copy certified as herein 11 provided, unless the subpoena be accompanied by an order of the court or 12 other tribunal before which trial or hearing is had requiring the 13 production of such original. 14 § 11-102.1 Authorization to require identifying numbers. a. The 15 commissioner of finance in the proper discharge of his or her duties in 16 the administration and collection of taxes, assessments, arrears or 17 other charges payable to the city may require any person to furnish such 18 identifying number as the commissioner may prescribe for securing proper 19 identification of such person including, but not limited to, a social 20 security account number or federal employer identification number. 21 b. Any person who fails to supply such identifying number within thir- 22 ty days after written demand therefor shall be liable for a civil penal- 23 ty of not more than one thousand dollars. Upon application in writing 24 and for good cause shown, the commissioner of finance may extend the 25 time for compliance with such written demand. 26 c. The civil penalty prescribed by this section shall be recovered by 27 the corporation counsel in an action or proceeding in any court of 28 competent jurisdiction. In addition, the corporation counsel may insti- 29 tute any other action or proceeding in any court of competent jurisdic- 30 tion that may be appropriate or necessary for the enforcement of the 31 provisions of this section. 32 § 11-103 Bond of commissioner of finance. The commissioner of 33 finance, within ten days after receiving notice of his or her appoint- 34 ment and before such commissioner enters upon his or her office, shall 35 give a bond to the city and to the people of the state of New York in 36 the sum of three hundred thousand dollars, with not less than four 37 sufficient sureties to be approved by the comptroller, conditioned that 38 he or she will faithfully discharge the duties of the commissioner's 39 office and all trusts imposed on him or her by law in virtue of the 40 commissioner's office, including all duties in connection with the tax 41 on mortgages as prescribed by article eleven of the tax law. Such bond 42 shall be deemed to extend to the faithful execution of the duties of the 43 office until a new appointment shall be made and confirmed, and the 44 person so appointed enters upon the performance of the commissioner's 45 duties. In case of any official misconduct or default on the part of 46 such commissioner of finance, or his or her subordinates, an action upon 47 such bond may be begun and prosecuted to judgment by the city, which, 48 after first paying therefrom the expenses of the litigation, shall cause 49 the proceeds of such judgment to be distributed as shall be lawful and 50 equitable among the persons and objects injured or defrauded by such 51 official misconduct or default of the commissioner of finance or any of 52 his or her subordinates. 53 § 11-104 Commissioner of finance to keep accounts. a. The commission- 54 er of finance shall keep books showing the receipts of moneys from all 55 sources, and designating the sources of same, and also showing theS. 8474 157 1 amounts paid from time to time on account of the several appropriations, 2 the forms of which shall be prescribed by the comptroller. 3 b. The city collector or the deputy collector in receiving moneys 4 payable to the city, from whatever source derived, shall not issue a 5 receipt to the payor for a payment made by personal, business or corpo- 6 rate check unless specifically requested. 7 § 11-105 Agreements with financing agencies or card issuers; payment 8 of fines, civil penalties, taxes, fees, rates, rent, charges or other 9 amounts by credit card. 1. As used in this section, the following terms 10 shall have the following meanings: 11 a. "Card issuer" shall mean an issuer of a credit card, charge card or 12 other value transfer device. 13 b. "Credit card" means any credit card, credit plate, charge card, 14 charge plate, courtesy card, debit card or other identification card or 15 device issued by a person to another person which may be used to obtain 16 a cash advance or a loan or credit, or to purchase or lease property or 17 services on the credit of the person issuing the credit card or a person 18 who has agreed with the issuer to pay obligations arising from the use 19 of a credit card issued another person. 20 c. "Financing agency" means a person engaged, in whole or in part, in 21 the business of purchasing retail installment contracts, obligations or 22 credit agreements or indebtedness of buyers under credit agreements from 23 one or more retail sellers or entering into credit agreements with 24 retail buyers but shall not include a retail seller. The term includes 25 but is not limited to a bank, trust company, private banker, industrial 26 bank or investment company, if so engaged, but shall not include a 27 retail seller. 28 d. "Person" means an individual, partnership, corporation or any other 29 legal or commercial entity. 30 2. The city may enter into agreements with one or more financing agen- 31 cies or card issuers to provide for the acceptance by the city of credit 32 cards as an alternate means of payment of fines, civil penalties, taxes, 33 fees, rent, rates, charges or other amounts owed by a person to the 34 city. Any such agreement shall govern the terms and conditions upon 35 which a credit card proffered as a means of payment of a fine, civil 36 penalty, tax, fee, rent, rate, charge or other amount shall be accepted 37 or declined and the manner in and conditions upon which the financing 38 agency or card issuer shall pay to the city the amount of fines, civil 39 penalties, taxes, fees, rent, rates, charges or other amounts paid by 40 means of credit cards pursuant to such agreement. Any such agreement may 41 provide for the payment by the city to such financing agency or card 42 issuer of fees for the services rendered by such financing agency or 43 card issuer pursuant to such agreement, which fees may consist of a 44 discount deducted from or payable in respect of the amount of each such 45 fine, civil penalty, tax, fee, rent, rate, charge or other amount or 46 otherwise as the agreement may provide. 47 3. Notwithstanding any other provision of law to the contrary, any 48 agency or department of the city which, pursuant to an agreement entered 49 into under this section, accepts credit cards as a means of payment of 50 fines, civil penalties, taxes, fees, rent, rates, charges or other 51 amounts owed by a person to the city shall be authorized to charge and 52 collect from any person offering a credit card as a means of payment of 53 a fine a reasonable and uniform fee as a condition of accepting such 54 credit card in payment of a fine, civil penalty, tax, fee, rent, rate, 55 charge or other amount. Such fee shall not exceed the cost incurred by 56 the agency or department in connection with such credit card trans-S. 8474 158 1 action, which cost shall include any fee payable by the city to the 2 financing agency. 3 § 11-106 Weekly reports by commissioner of finance to mayor and comp- 4 troller. The commissioner of finance shall report weekly in writing to 5 the mayor and to the comptroller all moneys received by the commission- 6 er, the amount of all warrants paid by him or her since the commission- 7 er's last report, and the amount remaining to the credit of the city. 8 § 11-107 Report to comptroller. The commissioner of finance, when 9 required by the comptroller, shall furnish to him or her such informa- 10 tion as the comptroller may demand in relation to the finances of the 11 city, within such reasonable time as the commissioner may direct. 12 § 11-108 Rules in signing warrants. No warrant shall be signed by 13 the comptroller or countersigned by the commissioner of finance, except 14 upon vouchers for the expenditures of the amount named therein, duly 15 prepared and audited according to the methods prescribed by the comp- 16 troller, and filed with the comptroller, except in the case of judg- 17 ments, in which case a transcript thereof shall be filed. 18 § 11-109 Commissioner of finance to exhibit bank book. The commis- 19 sioner of finance shall exhibit his or her bank book to the comptroller 20 on the first Tuesday of every month and more often when required. 21 § 11-110 When commissioner of finance to close accounts. The accounts 22 of the commissioner of finance shall be annually closed on the last day 23 of June. 24 § 11-111 Withdrawal of moneys by heads of agencies. Notwithstanding 25 any provision of the charter, any city treasury or sinking fund moneys 26 which have been duly withdrawn from any bank or trust company upon prop- 27 er warrant and check to the order of the head or heads of any agency or 28 agencies may be redeposited by such head or heads of such agency or 29 agencies in a properly designated deposit bank and thereafter such rede- 30 posited moneys may be withdrawn upon check signed by him or her or them 31 without additional warrant. 32 § 11-112 Authorization of subordinates to sign checks and warrants. 33 Notwithstanding any provision of the charter, the comptroller or commis- 34 sioner of finance may designate and authorize any deputies, assistant 35 deputies, or employees to sign, each in his or her own name and in place 36 of and for the comptroller or commissioner of finance, respectively, any 37 or all checks or warrants, including those issued against sinking fund 38 and trust fund bank accounts. A warrant or check so signed shall be of 39 the same force and effect as if signed by the comptroller or commission- 40 er of finance, respectively. The designation or designations of depu- 41 ties shall be made in writing in the manner set forth in section nine- 42 ty-four of the charter of the preceding municipality as it existed 43 January first, nineteen hundred ninety-four. The designation or desig- 44 nations of assistant deputies or employees shall be in writing, signed 45 in duplicate by the comptroller or the commissioner of finance, respec- 46 tively, and shall be duly filed and remain of record in the office of 47 the comptroller and the department of finance. The period for which 48 each such designation of deputies, assistant deputies and employees 49 shall continue in force shall be specified therein and may be terminated 50 by the comptroller or commissioner of finance, respectively, at any time 51 by filing in the same office or offices in which the designation has 52 been filed a written notice of such termination signed by the comp- 53 troller or commissioner of finance, respectively. 54 § 11-113 Acceptance of facsimile signatures by banks or trust compa- 55 nies. Notwithstanding any provision of the charter, checks drawn upon 56 any bank or trust company for payment of payrolls or disbursements forS. 8474 159 1 relief, required to be signed by the head of an agency or his or her 2 authorized designee, may be signed by the facsimile signature or signa- 3 tures of the person or persons authorized to sign such checks, if the 4 head of such agency so authorizes by an instrument in writing signed by 5 the head of such agency and filed with the comptroller; and, in such 6 event, any bank or trust company shall, acting in good faith and without 7 notice of any defect or invalidity, be authorized to pay and be 8 protected in paying any checks bearing or purporting to bear the facsim- 9 ile signature or signatures of the person or persons duly authorized to 10 sign such checks, regardless of the person by whom or the means by which 11 the actual or purported facsimile signature or signatures thereon may 12 have been affixed thereto, if such facsimile signature or signatures 13 closely resemble the facsimile specimens from time to time filed with 14 such banks or trust companies by the head of the agency in question; 15 provided, however, that nothing herein contained shall release such bank 16 or trust company from any liability arising from any cause or fact other 17 than the fact that such facsimile signature is not a genuine facsimile 18 signature affixed with appropriate authority. 19 § 11-115 City collector; appointment; bond. The mayor shall appoint 20 the city collector. The city collector, before entering upon the duties 21 of his or her office, shall enter into a bond to the city of Staten 22 Island to be approved by the commissioner of finance and comptroller in 23 the penal sum of twenty-five thousand dollars, which bond shall be 24 conditioned for the faithful performance of the duties of the office by 25 the officer giving such bond. Such bond shall be a lien on all the real 26 estate held by the collector executing the same, or any surety thereto, 27 in the city at the time of the filing thereof, unless there be named and 28 described in or on any such bond, real estate in such city equal in 29 value to the amount of such bond and owned by a surety, in which case 30 the bond shall be a lien on such real estate so described and upon all 31 the real estate of such city collector, and no other, and shall continue 32 to be such lien until the condition, together with all costs and charges 33 which may accrue by the prosecution thereof, shall be fully satisfied, 34 or until such lien be released, not to exceed, however, the period of 35 ten years after the time when the officer who has given such bond shall 36 have ceased to hold his or her office, unless an action thereon has been 37 commenced and shall then be pending. 38 § 11-116 Deputies to give bond; duties. The city collector shall 39 take from each deputy a bond, in such penal sum and with such sureties 40 as may be approved by the city collector and by the comptroller and 41 commissioner of finance, which bond shall run to the city collector, the 42 city and to whom it may concern, and shall be conditioned for the faith- 43 ful performance of the duties of such deputy. Each bond taken in 44 pursuance of the provisions of this section shall be filed with the 45 comptroller. Each deputy collector shall have all the powers and be 46 subject to all the duties of the city collector in respect to the 47 collection and receipt of taxes, assessments, water rents and arrears. 48 § 11-117 Renewal of bond. If at any time during the continuance in 49 office of the city collector or deputy collectors the comptroller or 50 commissioner of finance shall deem any surety of them to be insuffi- 51 cient, he or she may require the city collector or deputy collectors to 52 enter into a new bond to be approved in like manner as prescribed in 53 section 11-115 of this chapter, within such time as the comptroller may 54 direct, not being less than ten days after requiring such new bond to be 55 given. In case of the neglect or refusal of any such officer to furnishS. 8474 160 1 such bond within the time so directed, the comptroller or commissioner 2 of finance may declare his or her office vacant. 3 § 11-118 Bureau of city collections; duties. The duties of the bureau 4 of city collections shall also include the collection of water rents, 5 charges, fines and penalties in connection with the water supply, 6 including arrears, sewer rents, sewer surcharges, charges, fines and 7 penalties in connection with the sewer system as defined in sections 8 24-514 and 24-523 of the code of the preceding municipality, including 9 arrears, interest on bonds and mortgages and revenue arising from the 10 sale of property belonging to or managed by the city. 11 § 11-119 City collector; absence; suspension of. a. In case of 12 inability of the city collector to perform the duties of his or her 13 office by reason of sickness or absence from the city, the mayor shall 14 designate some suitable person to perform the duties of the city collec- 15 tor's office during such inability or absence, and shall, if the comp- 16 troller so requires, take from such person a bond, with sufficient sure- 17 ties, in the manner hereinafter prescribed. 18 b. If the city collector or any deputy collector shall on any day omit 19 or neglect to furnish to the commissioner of finance or to the comp- 20 troller, respectively, the statements and vouchers required in section 21 11-121 of this chapter, or to make the prescribed daily payments, it 22 shall be the duty of the commissioner of finance forthwith to suspend 23 him or her from office. In case of such suspension, the commissioner of 24 finance shall appoint a suitable person to perform the duties of the 25 officer so suspended, who shall continue to act as such officer until 26 the person suspended shall be restored or another person shall have been 27 appointed. On making such temporary appointment, the commissioner of 28 finance shall be required to take from the person so appointed a bond, 29 with two sufficient sureties, to be approved by the comptroller and 30 filed with the comptroller, in such penal sum as the comptroller may 31 deem just, conditioned for the faithful performance of the duties of the 32 office during the continuance of the person appointed therein; and all 33 the provisions of law prescribing the duties of the city collector and 34 deputy collectors shall apply to the person or persons so appointed. 35 § 11-120 Bond of city collector to be filed. The bond given by the 36 city collector shall be filed and remain in the office of the comp- 37 troller, and true copies thereof, certified by the comptroller, shall be 38 filed in the office of the clerk, and shall be public records. In case 39 a certificate of the adjustment of the accounts of the city collector be 40 made, a true copy thereof, certified by the comptroller, shall be filed 41 in each of the offices in which a copy of the bond of the city collector 42 shall have been filed. 43 § 11-121 City collector; daily statements and accounts. a. The city 44 collector or the deputy collector shall enter upon accounts, to be main- 45 tained in each such office for each parcel of property, the payment of 46 taxes, assessments, sewer rents or water rents thereon, the amount 47 therefor, and the date when paid. The city collector shall daily enter 48 into suitable books to be kept for the purpose of such accounts, such 49 payments and the respective parcels on account of which the same were 50 paid. 51 b. At close of office hours each day, the city collector shall render 52 to the commissioner of finance a statement of the sums so received, and 53 at the same time pay over to such commissioner of finance, the amount 54 received on such day. The city collector shall thereupon receive from 55 such commissioner of finance a voucher for the payment of such sumsS. 8474 161 1 which he or she shall exhibit to the comptroller not later than the next 2 succeeding business day. 3 c. At the close of office hours each day, the city collector shall 4 also furnish a statement to the comptroller who shall file the same in 5 his or her office. Such statement shall indicate in detail such sums so 6 received and the respective parcels on account of which the same were 7 paid. The comptroller shall, on each day, immediately after receiving 8 such statement, compare it with a voucher furnished to him or her by the 9 commissioner of finance indicating the sums which have been paid on such 10 day to the commissioner of finance and if the aggregate amounts thereof 11 shall correspond, shall credit the city collector in his or her books 12 with such amount. 13 § 11-122 Exemption from taxes granted to REMICs. An entity that is 14 treated for federal income tax purposes as a real estate mortgage 15 investment conduit, hereinafter referred to as a REMIC, as such term is 16 defined in section 860D of the internal revenue code, shall be exempt 17 from all taxation under chapters five and six of this title. A REMIC 18 shall not be treated as a corporation, partnership or trust for purposes 19 of chapter six of this title. The assets of a REMIC shall not be 20 included in the calculation of any tax liability under chapter six. This 21 provision does not exempt the holders of regular or residual interests, 22 as defined in section 860G of the internal revenue code, in a REMIC from 23 tax on or measured by such regular or residual interests, or on income 24 from such interests. 25 § 11-123 Interest compounded daily. 26 In computing the amount of any interest required to be paid under 27 section 11-224 (except subdivision j thereof), 11-224.1, 11-264, 11-306, 28 11-307, 11-312, 11-313, 17-151, 19-152, 24-317, 24-512, 24-605, 26-128, 29 26-517.1, 27-2144 or 27-4029.1 of the code, such interest shall be 30 compounded daily. 31 § 11-124 Conciliation conferences. a. The commissioner of finance may 32 establish a procedure for providing conciliation conferences for 33 purposes of settling contested determinations of taxes or charges or 34 denials of refunds or credits with respect to taxes or charges imposed 35 under chapter five, six, seven, eight, nine, eleven, twelve, thirteen, 36 fourteen, fifteen, twenty-one, twenty-two, twenty-four, twenty-five or 37 twenty-seven of this title, or for the purpose of settling disputes 38 arising from the notification of the refusal to grant, the suspension or 39 the revocation of a license issued pursuant to chapter thirteen of this 40 title. If such a procedure is established, a conciliation conference 41 shall be provided at the option of any taxpayer or any other person 42 subject to the provisions of any of such chapters. For purposes of this 43 subdivision, if the commissioner of finance fails to act with respect to 44 a refund application before the expiration of the time period after 45 which the taxpayer may file a petition for refund with the tax appeals 46 tribunal established by section one hundred sixty-eight of the charter 47 of the preceding municipality as it existed January first, nineteen 48 hundred ninety-four pursuant to subdivision (c) of section 11-529 or 49 subdivision three of section 11-680 of the code, such failure shall be 50 deemed to be the denial of a refund. 51 b. A request for a conciliation conference shall be made in the manner 52 set forth in rules promulgated by the commissioner of finance and, 53 notwithstanding any provision of law to the contrary, shall suspend the 54 running of the period of limitations for the filing of a petition with 55 such tax appeals tribunal under chapter five, six, seven, eight, nine, 56 eleven, twelve, thirteen, fourteen, fifteen, twenty-one, twenty-two,S. 8474 162 1 twenty-four, twenty-five or twenty-seven of this title until such time 2 as a conciliation decision is rendered by the commissioner of finance, 3 or until the person who requested the conciliation conference makes a 4 written request to discontinue or withdraw from the conciliation 5 proceeding. 6 c. Nothing contained herein shall prevent any taxpayer or any other 7 person who has received a notice of determination, notice of deficiency 8 or notice of denial of a claim for refund from filing a petition with 9 such tax appeals tribunal if the time for filing such a petition has not 10 elapsed. 11 d. The commissioner of finance is authorized and empowered to make, 12 adopt and amend rules appropriate to the carrying out of this section 13 and the purposes thereof. 14 § 11-126 Definitions. When used in this title, the term "partnership" 15 shall mean an entity classified as a partnership for federal income tax 16 purposes, including a subchapter K limited liability company, and the 17 term "partner" or the term "member" when used in relation to a partner- 18 ship shall include a member of a subchapter K limited liability company, 19 unless the context requires otherwise. The term "subchapter K limited 20 liability company" shall mean a limited liability company classified as 21 a partnership for federal income tax purposes. The term "limited liabil- 22 ity company" means a domestic limited liability company or a foreign 23 limited liability company, as defined in section one hundred two of the 24 state limited liability company law, a limited liability investment 25 company formed pursuant to section five hundred seven of the banking 26 law, or a limited liability trust company formed pursuant to section one 27 hundred two-a of the banking law. Notwithstanding anything herein to 28 the contrary, this section shall not apply for purposes of chapter 29 seventeen or nineteen of this title. 30 § 11-128 Payment of real property taxes by electronic funds transfer. 31 a. Definition. "Electronic funds transfer" shall mean any transfer of 32 funds, other than a transaction originated by check, draft or similar 33 paper instrument, which is initiated through an electronic terminal, 34 telephonic instrument or computer or magnetic tape so as to order, 35 instruct or authorize a financial institution to debit or credit an 36 account. 37 b. Authority. Notwithstanding any provision of law to the contrary, 38 the department of finance may accept and, as authorized by this section, 39 require payment of real property taxes by electronic funds transfer, and 40 may authorize a designee to accept such payments. The department of 41 finance, or its designee, may take all actions necessary to complete and 42 administer such transactions, including but not limited to requesting 43 and collecting necessary information and the debiting of specified 44 accounts as provided for by this section. 45 c. Participation. Notwithstanding any provision of law to the contra- 46 ry, the commissioner may require the payment of real property taxes by 47 electronic funds transfer for properties with annual real property tax 48 liability equal to or greater than three hundred thousand dollars. The 49 owner of any such real property, or the person or entity authorized by 50 such owner to pay real property taxes on such real property, shall be 51 required to enroll in an electronic payment program to make such 52 payments, including any arrears in real property taxes on such real 53 property, by electronic funds transfer, either by payment initiated by 54 the taxpayer as described in paragraph one of subdivision d of this 55 section or by authorizing the department of finance to debit the rele-S. 8474 163 1 vant account as described in paragraph two of subdivision d of this 2 section. 3 1. Notwithstanding any other provision of this section, where a 4 taxpayer pays real property taxes for more than one property by a single 5 payment, and the total annual real property tax liability for such prop- 6 erties is equal to or greater than three hundred thousand dollars, the 7 total annual real property tax liability for such properties shall be 8 used to determine whether the taxes for a property must be paid by elec- 9 tronic funds transfer. 10 2. (i) Where real property taxes are paid for more than one taxpayer 11 by a single bill or paid by a single entity, including but not limited 12 to a mortgage escrow agent as defined in subparagraph (ii) of this para- 13 graph, if the total amount paid is equal to or greater than three 14 hundred thousand dollars annually, such amount shall be used to deter- 15 mine whether the taxpayer or entity is required to participate in an 16 electronic funds transfer program. 17 (ii) For purposes of this paragraph, the term "mortgage escrow agent" 18 shall include every banking organization, federal savings bank, federal 19 savings and loan association, federal credit union, bank, trust company, 20 licensed mortgage banker, savings bank, savings and loan association, 21 credit union, insurance corporation organized under the laws of any 22 state other than New York, or any other person, entity or organization 23 which, in the regular course of its business, requires, maintains or 24 services escrow accounts in connection with mortgages on real property 25 located in the city. 26 d. Electronic payment program. The owner of real property, or other 27 person or entity authorized by such owner to pay real property taxes on 28 real property for which payment must be made by electronic funds trans- 29 fer under this section, may choose between participating in a taxpayer 30 initiated payment program or an automatic debit program, as set forth in 31 this subdivision and described in rules promulgated by the commissioner 32 of finance. 33 1. Taxpayer initiated program. In such a program, taxpayers initiate 34 payment by electric funds transfer, including payment by fedwire. 35 2. Automatic debit program. In such a program, taxpayers authorize the 36 department of finance, or the department's designee as determined by the 37 commissioner of finance, to debit the taxpayer's account for the amounts 38 due. 39 e. Notification of participation requirements. For taxpayers or enti- 40 ties subject to this section, the department of finance shall mail 41 notice of such requirement to the property owner or other party who has 42 been designated to receive real property tax bills on an owner's regis- 43 tration card filed by such owner. Such notice shall include the date by 44 which the owner or other party designated by such owner to pay real 45 property taxes on the property must enroll in the electronic payment 46 program. 47 f. Authorization. To administer the payment of real property taxes by 48 electronic funds transfer by automatic debit as described in paragraph 49 two of subdivision d of this section, the department of finance may 50 require that the party responsible for the payment of real property 51 taxes: 52 1. execute an electronic funds transfer agreement with the department 53 of finance or its designee, on a form approved by the department of 54 finance. Such form may be in a format designated by the commissioner, 55 including an electronic format. The agreement shall require that the 56 taxpayer authorize the department of finance or its designee to debitS. 8474 164 1 such account on the last date by which the real property taxes may be 2 paid without the accrual of interest in accordance with applicable law; 3 and 4 2. furnish the department of finance or its designee with information 5 to enable the department of finance to complete the electronic funds 6 transfer transaction. Such information shall include, but not be limited 7 to, the name and address of the bank from which an electronic funds 8 transfer shall be authorized, the account number from which the payment 9 shall be authorized, the American Bankers Association (ABA) routing 10 number of the bank where the taxpayer maintains an account and the 11 borough, block and lot of the real property for which such payments are 12 authorized. 13 g. Timely payment. Notwithstanding any provision of law to the contra- 14 ry, where real property taxes are required to be made by electronic 15 funds transfer pursuant to subdivision c of this section, payment of 16 real property tax by electronic funds transfer shall be deemed timely 17 and not subject to interest charges if: 18 1. for taxpayers enrolled in a taxpayer initiated program pursuant to 19 paragraph one of subdivision d of this section, (i) the taxpayer proper- 20 ly initiates payment on the last date by which the real property taxes 21 may be paid without the accrual of interest in accordance with applica- 22 ble law; and (ii) on the last date by which the real property taxes may 23 be paid without the accrual of interest in accordance with applicable 24 law, such account contains sufficient funds to enable the successful 25 completion of the electronic funds transfer; or 26 2. for taxpayers enrolled in an automatic debit program pursuant to 27 paragraph two of subdivision d of this section, (i) the department of 28 finance or its designee has been authorized to debit the taxpayer's 29 account on the last date by which the real property taxes may be paid 30 without the accrual of interest in accordance with applicable law; (ii) 31 such account is properly identified; and (iii) on the date such payment 32 is due, such account contains sufficient funds to enable the successful 33 completion of the electronic funds transfer. 34 h. Charge on returned payments. Where the department of finance or its 35 designee attempts to debit a taxpayer's account pursuant to a valid 36 electronic funds transfer agreement and is unable to successfully 37 complete the electronic funds transfer due to insufficient funds or 38 other cause not attributable to the department of finance or its desig- 39 nee, in addition to any interest accruing from the late payment of taxes 40 in accordance with applicable law, the same fee that is imposed for a 41 dishonored check pursuant to section eighty-five of the general munici- 42 pal law shall be imposed on the affected real property, and such fee may 43 be collected in the manner provided in such section. 44 i. Hardship. If a taxpayer is unable to enroll in the electronic 45 payment program required by subdivision c of this section or subsequent 46 to enrollment becomes unable to make payments by electronic funds trans- 47 fer as required by this section, the taxpayer may seek a waiver by writ- 48 ten application to the department of finance that sets forth the reason 49 for such inability. Such waiver may be granted in the discretion of the 50 commissioner of finance, who may consider such criteria as: 51 1. the hardship, whether financial or practical, created by partic- 52 ipation in the electronic funds transfer program for the taxpayer seek- 53 ing the waiver; 54 2. the length of time for which the waiver is requested; and 55 3. any other factors that the commissioner may deem relevant.S. 8474 165 1 The commissioner shall issue a determination, in writing, within ten 2 days of the department of finance's receipt of a waiver request pursuant 3 to this subdivision, but no waiver shall be granted with respect to the 4 payment of any installment of real property taxes that is due within 5 thirty days of the date of the request for a waiver. 6 j. Confidentiality. The department of finance shall assure the confi- 7 dentiality of information supplied by taxpayers in effecting electronic 8 funds transfers in accordance with applicable provisions of law. The 9 provisions of article six of the public officers law shall not apply to 10 any such information furnished by taxpayers subject to the requirements 11 of this section. 12 k. Failure to pay by electronic funds transfer. 1. With respect to any 13 real property as to which real property taxes are required to be paid by 14 electronic funds transfer under this section, but for which an install- 15 ment of real property taxes is not paid by electronic funds transfer and 16 is paid instead by any other method, including payment by check, (i) 17 with respect to the first installment that is paid by any other method, 18 including payment by check, the department of finance shall mail a warn- 19 ing notice to the taxpayer setting forth the requirement to make payment 20 by electronic funds transfer and the penalties for failure to do so; and 21 (ii) with respect to each and every subsequent installment that is paid 22 by any other method, including payment by check, the department of 23 finance shall impose a penalty charge in the amount of one percent of 24 the amount of the tax installment that was required under this section 25 to be paid by electronic funds transfer. 26 2. Any penalty charge imposed under this subdivision shall be a lien 27 against the real property for which the taxpayer failed to make a 28 payment in the manner required by this section, and shall accrue inter- 29 est at the same rate as is imposed on a delinquent tax on real property, 30 to be calculated to the date of payment from the date of entry. Such 31 lien shall be a tax lien within the meaning of sections 11-319 and 32 11-401 and may be sold, enforced or foreclosed in the manner provided in 33 chapters three and four of this title. 34 l. Rules. The commissioner may promulgate rules necessary to implement 35 this section. 36 CHAPTER 2 37 REAL PROPERTY ASSESSMENT, TAXATION AND CHARGES 38 SUBCHAPTER 1 39 ASSESSMENT ON REAL PROPERTY 40 § 11-201 Assessments on real property; general powers of finance 41 department. The commissioner of finance shall be charged generally with 42 the duty and responsibility of assessing all real property subject to 43 taxation within the city. 44 § 11-202 Maps and records; surveyor. The commissioner of finance 45 shall appoint a surveyor who shall make the necessary surveys and 46 corrections of the block or ward maps, and also make all new tax maps 47 which may be required. 48 § 11-203 Maps and records; tax maps. a. As used in the charter of 49 the city of Staten Island and in this code, the term "tax maps" shall 50 mean and include the block map of taxes and assessments to the extent 51 that the territory within the city of Staten Island is or shall be 52 embraced in such map, such ward or land maps as embrace the remainder of 53 such city, and also such maps as may be prepared under and pursuant to 54 subdivision d of this section.S. 8474 166 1 b. Each separately assessed parcel shall be indicated on the tax maps 2 by a parcel number or by an identification number. A separate identifi- 3 cation number shall be entered upon the tax maps in such manner as 4 clearly to indicate each separately assessed parcel of real property not 5 indicated by parcel numbering. Real property indicated by a single 6 identification number shall be deemed to be a separately assessed 7 parcel. 8 In the case of a newly created parcel with any building thereon, no 9 tax lot number or identification number shall be assigned to such parcel 10 unless the commissioner of the department of buildings has certified 11 that the newly created parcel complies with all applicable zoning laws. 12 c. Parcel numbers shall designate each parcel by the use of three or 13 more numbers, of which one shall be a section or ward number, another a 14 block, district or plat number, and another a lot number. The depart- 15 ment of finance may from time to time change the form of the section and 16 blocks, and also the numbers thereof, on the tax maps filed in its 17 office whenever such change of form has been caused pursuant to section 18 one hundred ninety-nine of the charter of the preceding municipality as 19 it existed on the first of January in the year next succeeding the 20 effective date of this section and there shall thereafter be delineated 21 and entered upon such maps such new additional sections and blocks and 22 their numbers as necessity may require. Such administration may from 23 time to time change the form of the lots or parcels comprised within any 24 block, and also the numbers thereof, and cause to be shown on such maps 25 the separate lots or parcels of land contained in any new block added 26 thereto and also the lot numbers thereof, according to the general plan 27 employed in the making of such maps. 28 d. Each separately assessed parcel indicated by an identification 29 number shall be shown by a description, or by inscription of such number 30 on the block map of taxes and assessments, or by other map and 31 description. Such numbers may be altered in the same manner as provided 32 in subdivision c of this section for the alteration of parcel numbers. 33 e. New tax maps shall be certified by the department of finance and 34 filed in its main office. All changes and alterations made in the tax 35 maps shall be transmitted within thirty days after such change or alter- 36 ation to such office. 37 § 11-204 Tax maps; block references; alterations and corrections. The 38 word "block", as used in this section designates a plot or parcel of 39 land such as is commonly so designated in the city, wholly embraced 40 within the continuous lines of streets, or streets and waterfront taken 41 together where water forms one of the boundaries of a block, and such 42 other parcels of land or land under water as may be indicated by the 43 department of finance upon such tax maps by block numbers as constitut- 44 ing blocks. 45 § 11-205 Maps and records; public inspection; evidential value. a. The 46 books, maps, assessment-rolls, files and records of the department of 47 finance shall be kept in such of the offices of the department of 48 finance as may be most convenient to the taxpayers of the city and suit- 49 able to the proper discharge of the business of the department of 50 finance. They shall be public records and shall at all reasonable times 51 be open to public inspection. 52 b. Copies of all such records and transcripts thereof, certified by 53 the commissioner of finance or an assessor or by an officer or employee 54 of the department of finance designated by the commissioner of finance, 55 and under the seal of the department of finance, shall be admissible in 56 evidence in all courts and places in the same manner and for the sameS. 8474 167 1 purposes as books, papers or documents similarly authenticated by the 2 clerk of a county. 3 § 11-206 Power of the commissioner of finance to correct errors. The 4 commissioner of finance may correct any assessment or tax which is erro- 5 neous due to a clerical error or to an error of description contained in 6 the several books of annual record of assessed valuations, or in the 7 assessments-rolls. If the taxes computed on such erroneous assessment 8 have been paid, the commissioner of finance is authorized to refund or 9 credit the difference between the taxes computed on the erroneous and 10 corrected assessments. 11 § 11-207 Duties of assessors in assessing property. a. In performing 12 their assessment duties, the assessors shall personally examine each 13 parcel of taxable real estate during at least every third assessment 14 cycle, and shall personally examine each parcel of real estate that is 15 not taxable during at least every fifth assessment cycle, as measured 16 from the last preceding assessment cycle during which such parcel was 17 personally examined, provided, however, the assessors shall revalue, 18 reassess or update the assessment of each parcel of taxable or nontaxa- 19 ble real estate during each assessment cycle, irrespective of whether 20 such parcel was personally examined during each assessment cycle. 21 b. The persons having charge of the assessment office shall furnish to 22 the commissioner of finance, under oath, a detailed statement of all 23 taxable real estate in the city. Such statement shall contain the 24 street, the section or ward, the block and lot and map or identification 25 numbers of such real estate embraced within such city; the sum for 26 which, in their judgment, each separately assessed parcel of real estate 27 would sell under ordinary circumstances if it were wholly unimproved 28 and, separately stated, the sum for which the same parcel would sell 29 under ordinary circumstances with the improvements, if any, thereon, 30 such sums to be determined with regard to the limitations contained in 31 the state real property tax law. Such statement shall include such 32 other information as the commissioner of finance may, from time to time, 33 require. 34 § 11-208 Special right of entry; certificate of the commissioner of 35 finance. A right of entry upon real property and into buildings and 36 structures at all reasonable times to ascertain the character of the 37 property shall not be allowed to any person acting in behalf of the 38 department of finance, other than the officials mentioned in sections 39 one hundred fifty-six and one thousand five hundred twenty-one of the 40 charter of the preceding municipality as it existed on the first of 41 January in the year next succeeding the effective date of this section, 42 unless a certificate therefor, executed in writing and signed by the 43 commissioner of finance, is presented by such person to the owner, 44 lessee, or occupant of the premises or his or her agent before entry 45 thereon is made. 46 § 11-208.1 Income and expense statements. a. Where real property is 47 income-producing property, the owner shall be required to submit annual- 48 ly to the department not later than the first of September a statement 49 of all income derived from and all expenses attributable to the opera- 50 tion of such property as follows: 51 (1) Where the owner's books and records reflecting the operation of 52 the property are maintained on a calendar year basis, the statement 53 shall be for the calendar year preceding the date the statement shall be 54 filed. 55 (2) Where the owner's books and records reflecting the operation of 56 the property are maintained on a fiscal year basis for federal incomeS. 8474 168 1 tax purposes, the statement shall be for the last fiscal year concluded 2 as of the first of August preceding the date the statement shall be 3 filed. 4 (3) Notwithstanding the provisions of paragraphs one and two of this 5 subdivision, where the owner of the property has not operated the prop- 6 erty and is without knowledge of the income and expenses of the opera- 7 tion of the property for a consecutive twelve month period concluded as 8 of the first of August preceding the date of the statement shall be 9 filed, then the statement shall be for the period of ownership. 10 (4) The commissioner may for good cause shown extend the time for 11 filing an income and expense statement by a period not to exceed thirty 12 days. 13 b. Such statements shall contain the following declaration: "I certify 14 that all information contained in this statement is true and correct to 15 the best of my knowledge and belief. I understand that the willful 16 making of any false statement of material fact herein will subject me to 17 the provisions of law relevant to the making and filing of false instru- 18 ments and will render this statement null and void." 19 c. The form on which such statement shall be submitted shall be 20 prepared by the commissioner and copies of such form shall be made 21 available at the offices of the department in the county in which the 22 property is located. The commissioner may, by rule, require such state- 23 ment to be submitted electronically in such form and such manner as the 24 commissioner may determine. For good cause, the commissioner may waive 25 any rule requiring electronic filing and may permit a statement to be 26 filed in such other manner as the commissioner may designate. 27 d. (1) In the event that an owner of income-producing property fails 28 to file an income and expense statement within the time prescribed in 29 subdivision a of this section (determined with regard to any extension 30 of time for filing), such owner shall be subject to a penalty in an 31 amount not to exceed three percent of the assessed value of such 32 income-producing property determined for the current fiscal year in 33 accordance with section fifteen hundred six of the charter of the 34 preceding municipality as it existed on the first of January in the year 35 next succeeding the effective date of this section provided, however, 36 that if such statement is not filed by the thirty-first of December, the 37 penalty shall be in an amount not to exceed four percent of such 38 assessed value. If, in the year immediately following the year in which 39 an owner fails to file by the thirty-first of December, the owner again 40 fails to file an income and expense statement within the time prescribed 41 in subdivision a of this section (determined with regard to any exten- 42 sion of time for filing), such owner shall be subject to a penalty in an 43 amount not to exceed five percent of the assessed value of such property 44 determined for the current fiscal year. Such owner shall also be subject 45 to a penalty of up to five percent of such assessed value in any year 46 immediately succeeding a year in which a penalty of up to five percent 47 could have been imposed, if in such succeeding year the owner fails to 48 file an income and expense statement within the time prescribed in 49 subdivision a of this section (determined with regard to any extension 50 of time for filing). The penalties prescribed in this paragraph shall be 51 determined by the commissioner after notice and an opportunity to be 52 heard. 53 (2) The tax commission shall deny a hearing on any objection to the 54 assessment of property for which an income and expense statement is 55 required and has not been timely filed.S. 8474 169 1 (3) Where an income and expense statement required under the 2 provisions of this section has not been timely filed, the commissioner 3 may compel by subpoena the production of the books and records of the 4 owner relevant to the income and expenses of the property, and may also 5 make application to any court of competent jurisdiction for an order 6 compelling the owner to furnish the required income and expense state- 7 ment. 8 e. As used in this section, the term "income-producing property" means 9 property owned for the purpose of securing an income from the property 10 itself, but shall not include property with an assessed value of forty 11 thousand dollars or less, or residential property containing ten or 12 fewer dwelling units or property classified in class one or two as 13 defined in article eighteen of the real property tax law containing six 14 or fewer dwelling units and one retail store. 15 f. Except in accordance with proper judicial order or as otherwise 16 provided by law, it shall be unlawful for the commissioner, any officer 17 or employee of the department, the president or a commissioner or 18 employee of the tax commission, any person engaged or retained by the 19 department or the tax commission on an independent contract basis, or 20 any person, who, pursuant to this section, is permitted to inspect any 21 income and expense statement or to whom a copy, an abstract or a portion 22 of any such statement is furnished, to divulge or make known in any 23 manner except as provided in this subdivision, the amount of income 24 and/or expense or any particulars set forth or disclosed in any such 25 statement required under this section. The commissioner, the president 26 of the tax commission, or any commissioner or officer or employee of the 27 department or the tax commission charged with the custody of such state- 28 ments shall not be required to produce any income and expense statement 29 or evidence of anything contained in them in any action or proceeding in 30 any court, except on behalf of the department or the tax commission. 31 Nothing herein shall be construed to prohibit the delivery to an owner 32 or his or her duly authorized representative of a certified copy of any 33 statement filed by such owner pursuant to this section or to prohibit 34 the publication of statistics so classified as to prevent the identifi- 35 cation of particular statements and the items thereof, or making known 36 aggregate income and expense information disclosed with respect to prop- 37 erty classified as class four as defined in article eighteen of the real 38 property tax law without identifying information about individual leas- 39 es, or making known a range as determined by the commissioner within 40 which the income and expenses of a property classified as class two 41 falls, or the inspection by the legal representatives of the department 42 or of the tax commission of the statement of any owner who shall bring 43 an action to correct the assessment. Any violation of the provisions of 44 this subdivision shall be punished by a fine not exceeding one thousand 45 dollars or by imprisonment not exceeding one year, or both, at the 46 discretion of the court, and if the offender be an officer or employee 47 of the department or the tax commission, the offender shall be dismissed 48 from office. 49 g. The commissioner shall be authorized to promulgate rules and regu- 50 lations necessary to effectuate the purposes of this section. 51 h. Subdivision f of this section shall be deemed a state statute for 52 purposes of paragraph (a) of subdivision two of section eighty-seven of 53 the public officers law. 54 § 11-209 Taxable status of building in course of construction. a. A 55 building in the course of construction, commenced since the preceding 56 fifth day of January and not ready for occupancy on the fifth day ofS. 8474 170 1 January following, shall not be assessed unless it shall be ready for 2 occupancy or a part thereof shall be occupied prior to the fifteenth of 3 April. 4 b. (1) A commercial building in the course of construction, commenced 5 since the fifth day of January one year preceding the taxable status 6 date and not ready for occupancy or partially occupied on the taxable 7 status date, shall not be assessed unless it shall be ready for occupan- 8 cy or a part thereof shall be occupied prior to the fifteenth day of 9 April following the taxable status date. 10 (2) A commercial building in the course of construction, commenced 11 since the fifth day of January two years preceding the taxable status 12 date and not ready for occupancy or partially occupied on the taxable 13 status date, shall not be assessed unless it shall be ready for occupan- 14 cy or a part thereof shall be occupied prior to the fifteenth day of 15 April following the taxable status date. 16 (3) A commercial building in the course of construction, commenced 17 since the fifth day of January three years preceding the taxable status 18 date and not ready for occupancy or partially occupied on the taxable 19 status date, shall not be assessed unless it shall be ready for occupan- 20 cy or a part thereof shall be occupied prior to the fifteenth day of 21 April following the taxable status date. 22 c. For purposes of this section, a "commercial building" shall mean a 23 building that is intended to be used, and upon completion is used, 24 exclusively for buying, selling or otherwise providing goods or 25 services, or for other lawful business, commercial or manufacturing 26 activities, excluding hotel services, except that a commercial building 27 may contain a residential component other than a hotel, provided (i) 28 that such residential component is receiving or has applied for and is 29 eligible to receive a partial exemption from real property taxes pursu- 30 ant to section four hundred twenty-one-a of the real property tax law, 31 or (ii) that such residential component in its entirety, both land and 32 building, is receiving or has applied for and is eligible to receive a 33 full exemption from real property taxes, provided, however, a "commer- 34 cial building" shall not include any building that is constructed on 35 block 1049, lot 29 as shown on the tax map of the city of New York for 36 the borough of Manhattan as such map was in effect for the assessment 37 roll published in calendar year two thousand. 38 d. Subdivision b of this section shall not apply to a tax lot that 39 constitutes a part of a building unless the building viewed as a whole 40 is a commercial building as defined in subdivision c of this section. 41 e. Any building that receives the benefit conferred pursuant to subdi- 42 vision b of this section that is subsequently determined not to have 43 been a commercial building as defined in subdivision c of this section 44 for any year in which it received such benefit shall have its assessment 45 corrected for any such year. Taxes shall be imposed in the amount that 46 would have applied had the corrected taxable assessed value appeared on 47 the final assessment roll. 48 § 11-210 Books of annual record of assessed valuation of real estate 49 indicated by parcel numbers; form and contents. a. There shall be kept 50 in the office of the department of finance, books of the annual record 51 of the assessed valuation of real estate to be called "the annual record 52 of the assessed valuation of real estate indicated by parcel numbers in 53 the Staten Island", in which shall be entered in detail the assessed 54 valuation of each separately assessed parcel indicated by a parcel 55 number within the limits of Staten Island.S. 8474 171 1 b. The assessed valuation of each such parcel shall be set down in 2 such books in two columns. In the first column shall be stated, oppo- 3 site each such parcel, the sum for which such parcel would sell under 4 ordinary circumstances if wholly unimproved; and in the second column, 5 the sum for which such parcel would sell under ordinary circumstances 6 with the improvements, if any thereon. 7 c. Such books shall be prepared in such manner that the assessed valu- 8 ations entered therein shall be under sections and block headings as may 9 be most convenient for use in connection with the tax maps described in 10 section 11-203 of this chapter. 11 § 11-211 Books of annual record of assessed valuation of real estate 12 indicated by identification numbers. a. The assessed valuation of all 13 taxable real property indicated by identification numbers shall be 14 entered in the office of the department of finance. 15 b. The assessors in the city shall furnish to the commissioner of 16 finance at the office of the department of finance, a detailed statement 17 under oath of the assessable real property indicated by an identifica- 18 tion number in such city. 19 c. There shall be kept in the office of the department of finance, 20 books of the annual record of the assessed valuation of real estate to 21 be known as "the annual record of the assessed valuation of real estate 22 indicated by identification numbers", in which shall be entered the 23 assessed valuations of the real property mentioned in this section. 24 § 11-212 Power of the commissioner of finance to equalize assessments 25 before opening books. a. Before opening the several books of annual 26 record of assessed valuation for public inspection, the commissioner of 27 finance shall fix the valuations of property for the purpose of taxation 28 throughout the city at such sums as will, in the commissioner's judg- 29 ment, establish a just and equal relation between the valuations of 30 property throughout the entire city. 31 b. To this end the assessors are required to transmit to the commis- 32 sioner of finance in each year a report of the assessed valuation of 33 real property at such time prior to the fifteenth of January as such 34 commissioner may prescribe. 35 § 11-213 Errors in annual records or assessment-rolls. The omission 36 from the several books of annual record of assessed valuations or from 37 the assessment-rolls in respect to the entry therein of the name of the 38 rightful owner or owners of real estate, whether individuals or corpo- 39 rations, shall not invalidate any tax or assessment. In such case, 40 however, no tax shall be collected except from the real estate so 41 assessed. 42 § 11-214 Procedure on apportionment of assessment. a. The commissioner 43 of finance may apportion any assessment in such manner as he or she 44 shall deem just and equitable, and forthwith cause such assessment to be 45 cancelled and new assessments, equal in the aggregate to the cancelled 46 assessment, to be made on the proper books and rolls. Within five days 47 thereafter the commissioner of finance shall cause written notice of the 48 new assessments to be mailed to the owners of record of the real estate 49 so assessed at their last known residence or business address, and an 50 affidavit of the mailing of such notice to be filed in the office of the 51 department of finance. 52 b. When such notice is mailed after the first of February such owners 53 may apply for correction of such assessments within twenty days after 54 the mailing of such notice with the same force and effect as if such 55 application were made on or before the first of March in such year.S. 8474 172 1 § 11-215 Entry of corrections made by tax commission. Upon receiving 2 notice of a correction of an assessment made by the tax commission, the 3 commissioner of finance shall cause the amount of the assessment as 4 corrected to be entered upon the proper books of annual record and the 5 assessment-rolls for the year for which such correction is made. 6 § 11-216 Reduction in assessments; publication. a. There shall be 7 published annually in the City Record a list of all reductions in real 8 property assessments granted by the tax commission identifying the name 9 of the property owner, the address and the amount of reduction. 10 b. No reduction shall be granted for an income-producing property 11 unless there is submitted to the tax commission a statement of income 12 and expenses in the form prescribed by the tax commission and which 13 shall be, in the case of property valued at one million dollars or more 14 certified by a certified public accountant. The commissioner granting 15 such reduction in assessment shall state in a short memorandum the basis 16 upon which the reduction is granted. 17 c. In all cases where the reduction in assessment for the current year 18 is for fifty thousand dollars or more, the concurrence of the president 19 of the tax commission shall be required. 20 § 11-217 Assessment-rolls; form and contents. Assessment-rolls shall 21 be so arranged with respect to number of columns and shall contain such 22 entries as the commissioner of finance shall prescribe, sufficient to 23 identify the property assessed and to show its total assessed valuation. 24 Real estate shall be described therein by the numbers by which such 25 property is designated on the tax maps and in the several books of the 26 annual record of the assessed valuation of real estate, and such numbers 27 shall import into the assessment-rolls any necessary identifying 28 description shown by the tax maps. 29 § 11-218 Assessment-rolls; delivery to council or city clerk. a. The 30 council shall meet at noon, on the day of delivery of the rolls, other 31 than a Saturday, Sunday, or legal holiday, at the city hall or usual 32 place of meeting for the purpose of receiving the assessment-rolls and 33 performing such other duties in relation thereto as are prescribed by 34 law. 35 b. If the council fails to meet as herein prescribed, the rolls shall 36 be delivered to the city clerk with the same effect as if delivered to 37 the council. 38 § 11-219 Books of annual record; delivery for publication. Within two 39 weeks after the delivery of the assessment-rolls to the council, the 40 commissioner of finance shall furnish to the director of the City Record 41 a copy of the several books of the annual record of the assessed valu- 42 ation of real estate, omitting, however, the two columns headed respec- 43 tively "size of house" and "houses on lot." 44 § 11-220 Council; date of meeting to fix tax rate. The council shall 45 meet on a day other than a Saturday, Sunday or legal holiday, to fix the 46 annual tax rate. 47 § 11-221 Extension of tax on assessment-rolls or upon assessment-roll 48 cards. The respective sums to be paid as taxes on the valuation of real 49 property, may be set down in the assessment-rolls, or upon assessment- 50 roll cards. 51 § 11-222 Tax account of the commissioner of finance. Upon notification 52 from the public advocate of the amount of taxes mentioned in such 53 assessment-rolls and tax warrants, the comptroller shall cause the prop- 54 er sum to be charged to the commissioner of finance for collection. 55 § 11-223 Apportionment of taxes. a. If a sum of money in gross has 56 been or shall be taxed upon any lands or premises, any person or personsS. 8474 173 1 claiming any dividend or undivided part thereof may pay such part of 2 such sum so taxed and of any interest and charges due or charged there- 3 on, as the commissioner of finance may deem to be just and equitable. 4 b. The commissioner of finance shall apportion the assessed valuation 5 of such lands or premises. 6 c. The remainder of the sum of money so taxed and the interest and 7 charges shall be a lien upon the residue of the land and premises only, 8 and the tax lien upon such residue may be sold to satisfy such tax, 9 interest or charges thereon, in the same manner as though the residue of 10 said tax had been imposed only upon such residue of such lands or prem- 11 ises. 12 § 11-224 Interest on unpaid taxes. a. If any tax on real estate which 13 shall have become due and payable prior to January first, nineteen 14 hundred thirty-four, is unpaid in whole or in part, the commissioner of 15 finance shall charge, receive and collect interest upon the amount of 16 such tax or such part thereof, to be calculated to the date of payment 17 at the rate of seven per centum per annum from the date when such tax or 18 such part thereof became due and payable to January first, nineteen 19 hundred thirty-four, at the rate of ten per centum per annum from Janu- 20 ary first, nineteen hundred thirty-four to May first, nineteen hundred 21 thirty-seven, or at the rate of seven per centum per annum for such 22 period if the comptroller and the commissioner of finance, in their 23 discretion, both determine that the payment of any tax arrears at such 24 reduced rate of interest may operate to save the property upon which 25 such taxes are in arrears from foreclosure or encourage its development 26 or is otherwise in the public interest, at the rate of seven per centum 27 per annum from May first, nineteen hundred thirty-seven to August first, 28 nineteen hundred sixty-nine, and from August first, nineteen hundred 29 sixty-nine to December thirty-first, nineteen hundred seventy-six, at 30 the rate of seven per centum per annum if the annual tax on a parcel is 31 two thousand dollars or less, and at the rate of one per centum per 32 month if the annual tax on a parcel is more than two thousand dollars 33 or, irrespective of the annual tax, if a parcel consists of vacant or 34 unimproved land, and from January first, nineteen hundred seventy-seven 35 at the rate of seven per centum per annum if the annual tax on a parcel 36 is two thousand dollars or less, and at the rate of fifteen per centum 37 per annum if the annual tax on a parcel is more than two thousand 38 dollars or, irrespective of the annual tax, if a parcel consists of 39 vacant or unimproved land. 40 b. If any tax on real estate which shall have become due and payable 41 after January first, nineteen hundred thirty-four and prior to April 42 first, nineteen hundred thirty-seven, is unpaid in whole or in part, the 43 commissioner of finance shall charge, receive and collect interest upon 44 the amount of such tax or such part thereof, to be calculated to the 45 date of payment at the rate of ten per centum per annum from the date on 46 which such tax or such part thereof became due and payable to May first, 47 nineteen hundred thirty-seven, or at the rate of seven per centum per 48 annum for such period if the comptroller and the commissioner of 49 finance, in their discretion, both determine that the payment of any tax 50 arrears at such reduced rate of interest may operate to save the proper- 51 ty upon which such taxes are in arrears from foreclosure or encourage 52 its development or is otherwise in the public interest, at the rate of 53 seven per centum per annum from May first, nineteen hundred thirty-seven 54 to August first, nineteen hundred sixty-nine, from August first, nine- 55 teen hundred sixty-nine to December thirty-first, nineteen hundred 56 seventy-six, at the rate of seven per centum per annum if the annual taxS. 8474 174 1 on a parcel is two thousand dollars or less, and at the rate of one per 2 centum per month if the annual tax on a parcel is more than two thousand 3 dollars or, irrespective of the annual tax, if a parcel consists of 4 vacant or unimproved land, and from January first, nineteen hundred 5 seventy-seven, at the rate of seven per centum per annum if the annual 6 tax on a parcel is two thousand dollars or less, and at the rate of 7 fifteen per centum per annum if the annual tax on a parcel is more than 8 two thousand dollars or, irrespective of the annual tax, if a parcel 9 consists of vacant or unimproved land. 10 c. If any tax on real estate which shall have become due and payable 11 on or after April first, nineteen hundred thirty-seven and prior to 12 August first, nineteen hundred sixty-nine is unpaid in whole or in part, 13 the commissioner of finance shall charge, receive and collect interest 14 upon the amount of such tax or such part thereof, to be calculated to 15 the date of payment at the rate of seven per centum per annum from the 16 day on which such tax or such part thereof became due and payable to 17 August first, nineteen hundred sixty-nine, from August first, nineteen 18 hundred sixty-nine to December thirty-first, nineteen hundred seventy- 19 six, at the rate of seven per centum per annum if the annual tax on a 20 parcel is two thousand dollars or less, and at the rate of one per 21 centum per month if the annual tax on a parcel is more than two thousand 22 dollars or, irrespective of the annual tax, if a parcel consists of 23 vacant or unimproved land, and from January first, nineteen hundred 24 seventy-seven at the rate of seven per centum per annum if the annual 25 tax on a parcel is two thousand dollars or less, and at the rate of 26 fifteen per centum per annum if the annual tax on a parcel is more than 27 two thousand dollars or, irrespective of the annual tax, if a parcel 28 consists of vacant or unimproved land. 29 d. If any tax on real estate which shall have become due and payable 30 on or after August first, nineteen hundred sixty-nine and prior to 31 December thirty-first, nineteen hundred seventy-six, is unpaid in whole 32 or in part, the commissioner of finance shall charge, receive and 33 collect interest upon the amount of such tax or such part thereof, to be 34 calculated from the date on which such tax or such part thereof became 35 due and payable to December thirty-first, nineteen hundred seventy-six, 36 at the rate of seven per centum per annum if the annual tax on a parcel 37 is two thousand dollars or less, and at the rate of one per centum per 38 month if the annual tax on a parcel is more than two thousand dollars 39 or, irrespective of the annual tax, if a parcel consists of vacant or 40 unimproved land, and from January first, nineteen hundred seventy-seven 41 at the rate of seven per centum per annum if the annual tax on a parcel 42 is two thousand dollars or less, and at the rate of fifteen per centum 43 per annum if the annual tax on a parcel is more than two thousand 44 dollars or, irrespective of the annual tax, if a parcel consists of 45 vacant or unimproved land. 46 e. If any tax on real estate which shall become due and payable at any 47 time on or after January first, nineteen hundred seventy-seven, shall 48 remain unpaid in whole or in part on the fifteenth day following the 49 date on which the same shall become due and payable, the commissioner of 50 finance shall charge, receive and collect interest upon the amount of 51 such tax or such part thereof remaining unpaid on that date, to be 52 calculated from the day on which such tax or such part thereof became 53 due and payable to the date of payment at the rate of seven per centum 54 per annum if the annual tax on a parcel is two thousand dollars or less, 55 and at the rate of fifteen per centum per annum if the annual tax on aS. 8474 175 1 parcel is more than two thousand dollars or, irrespective of the annual 2 tax, if a parcel consists of vacant or unimproved land. 3 f. If any tax on real estate which shall become due and payable at any 4 time on or after July first, nineteen hundred seventy-nine, shall remain 5 unpaid in whole or in part on the fifteenth day following the date on 6 which the same shall become due and payable, or if any tax on real 7 estate which became due and payable prior to July first, nineteen 8 hundred seventy-nine shall remain unpaid on that date, the commissioner 9 of finance shall charge, receive and collect interest upon the amount of 10 such tax or such part thereof remaining unpaid, to be calculated, in the 11 case of any tax which shall become due and payable on or after July 12 first, nineteen hundred seventy-nine, from the day on which such tax or 13 such part thereof became due and payable, and in the case of any tax 14 which became due and payable prior to July first, nineteen hundred 15 seventy-nine, from July first, nineteen hundred seventy-nine, to the 16 date of payment at the rate of seven per centum per annum if the annual 17 tax on a parcel is two thousand seven hundred fifty dollars or less, and 18 at the rate of fifteen per centum per annum if the annual tax on a 19 parcel is more than two thousand seven hundred fifty dollars or, irre- 20 spective of the annual tax, if a parcel consists of vacant or unimproved 21 land. Any interest accrued prior to July first, nineteen hundred seven- 22 ty-nine, pursuant to subdivisions a through e of this section shall be 23 unaffected by the provisions of this subdivision. 24 g. No later than the twenty-fifth day of May of each year, the banking 25 commission shall transmit a written recommendation to the council of a 26 proposed interest rate to be charged for nonpayment of taxes on real 27 estate in those cases where the annual tax on a parcel is more than two 28 thousand seven hundred fifty dollars or where, irrespective of the annu- 29 al tax, a parcel consists of vacant or unimproved land. In making such 30 recommendations the commission shall consider the prevailing interest 31 rates charged for commercial loans extended to prime borrowers by 32 commercial banks operating in the city and shall propose a rate of at 33 least six per centum per annum greater than such rates. The council may 34 by resolution adopt an interest rate to be applicable to the aforemen- 35 tioned parcels and may specify in such resolution the date on which such 36 interest rate is to take effect. 37 h. Notwithstanding anything to the contrary contained in the recommen- 38 dation transmitted by the banking commission to the council relative to 39 the proposed rate of interest to be charged during the fiscal year of 40 the city commencing July first, nineteen hundred seventy-nine in the 41 case of nonpayment of real estate taxes, or contained in the resolution 42 adopted by the council in accordance with such recommendation, the coun- 43 cil hereby sets the interest rate to be charged during the fiscal year 44 of the city commencing July first, nineteen hundred seventy-nine for 45 nonpayment of real estate taxes at eighteen per centum per annum where 46 the annual tax on a parcel is more than two thousand seven hundred fifty 47 dollars or where the parcel consists of vacant or unimproved land. 48 i. The interest mentioned in subdivisions a through h of this section 49 shall be paid over and accounted for from time to time by such commis- 50 sioner of finance as a part of the tax collected by him or her. 51 j. When an installment agreement has been entered into pursuant to any 52 of the provisions of chapter four of this title, during the period 53 beginning on the date this subdivision takes effect and ending April 54 thirtieth, nineteen hundred eighty-two, the commissioner of finance 55 shall, notwithstanding any higher rate of interest prescribed pursuant 56 to applicable law, and unless a lower rate of interest is applicable toS. 8474 176 1 a parcel covered by such an agreement, charge, collect and receive 2 interest on the arrears due and payable under such agreement, to be 3 calculated at the rate of ten percent per annum from May first, nineteen 4 hundred eighty-two to the date of payment of each installment. Any 5 interest accrued or accruing prior to May first, nineteen hundred eight- 6 y-two shall not be affected by the provisions of this subdivision but 7 shall be charged, collected and received in the manner and at the rates 8 prescribed pursuant to applicable law. Such ten percent rate of inter- 9 est shall be applicable only if, as of May first, nineteen hundred 10 eighty-two, (i) there has been no default in such agreement, and (ii) 11 all current taxes, assessments or other legal charges are paid as they 12 become due or within the period of grace provided by law. Where an 13 installment agreement has been entered into prior to May fifth, nineteen 14 hundred eighty-two pursuant to the provisions of either paragraph three 15 of subdivision a of section 11-413 of chapter four of this title prior 16 to March fourteenth, nineteen hundred seventy-nine or of subdivision a 17 of section 11-405 or subdivision h of section 11-409 of chapter four of 18 this title and said agreement is current as to both installment payments 19 and current taxes, assessments and other legal charges, the commissioner 20 of finance, on application of the party who entered into such agreement, 21 may cancel said agreement and enter into a new agreement containing the 22 terms provided on May fifth, nineteen hundred eighty-two. If any such 23 prior agreement is not cancelled as herein provided, any installments 24 due and payable under such agreement on or after May first, nineteen 25 hundred eighty-two shall be subject to interest at the rate and under 26 the conditions set forth above. In the event of any subsequent default 27 or failure to make timely payment of any installment payment or current 28 tax, assessment or other legal charge, the ten percent rate of interest 29 specified in this subdivision shall thereupon cease to be applicable and 30 the commissioner of finance shall thereafter charge, collect and receive 31 interest in the manner and at the rates prescribed pursuant to applica- 32 ble law. 33 k. 1. Notwithstanding any other provision of this section to the 34 contrary, but subject to the exception contained in paragraph two of 35 this subdivision, in the case of an installment of tax on real property 36 described in paragraph b of subdivision four of section fifteen hundred 37 nineteen of the city charter of the preceding municipality as it existed 38 on the first of January in the year next succeeding the effective date 39 of this section, interest shall be charged, received and collected at 40 the rate established pursuant to this section if such installment shall 41 remain unpaid in whole or in part on the date on which it shall become 42 due and payable. 43 2. If the tax rate for any fiscal year of the city has not been set by 44 the fifteenth of June preceding the start of such fiscal year, interest 45 shall not be charged, received and collected with respect to the first 46 installment of tax which is due and payable on the first of July in such 47 fiscal year if such installment is paid on or before the extended 48 payment date. For this purpose, the term "extended payment date" means 49 the date which falls the same number of days after the first of July in 50 such fiscal year as the number of days the date such tax rate is set 51 falls after such fifteenth of June. 52 l. No later than the fifth day following the effective date of this 53 subdivision and no later than May twenty-fifth of each succeeding year, 54 the banking commission shall transmit a written recommendation to the 55 council of proposed interest rates to be charged for nonpayment of taxes 56 on real property in those cases in which the annual tax on a parcel,S. 8474 177 1 other than a parcel which consists of vacant or unimproved land, is not 2 more than two thousand seven hundred fifty dollars. In making such 3 recommendations, the banking commission shall consider the prevailing 4 interest rates charged for commercial loans extended to prime borrowers 5 by commercial banks operating in the city. In the case of any such 6 parcel with respect to which the real property taxes are held in escrow 7 and paid to the commissioner of finance by a "mortgage escrow agent," as 8 that term is defined in section fifteen hundred nineteen of the city 9 charter of the preceding municipality as it existed on the first of 10 January in the year next succeeding the effective date of this section, 11 the proposed rate shall be at least six percent per annum greater than 12 such prevailing prime rate, and in the case of all other such parcels, 13 the proposed rate shall be at least equal to such prevailing prime rate. 14 The council may by resolution adopt interest rates to be applicable to 15 the aforementioned parcels and may specify in such resolution the dates 16 on which such interest rates are to take effect. In the event the coun- 17 cil does not adopt interest rates as provided in this subdivision, the 18 interest rates otherwise specified in this section shall be applicable. 19 § 11-224.1 Interest on unpaid real property tax. 20 (a) For real property with an assessed value of eighty thousand 21 dollars or less, if an installment of tax due and payable is not paid by 22 July fifteenth, October fifteenth, January fifteenth or April fifteenth, 23 interest shall be imposed on such unpaid amounts. 24 (b) For real property with an assessed value of over eighty thousand 25 dollars, if an installment of tax due and payable is not paid by July 26 first or January first, interest shall be imposed on such unpaid 27 amounts. 28 (c) If the council does not adopt interest rates by July first, two 29 thousand twenty-five, the rates shall be (i) for real property with an 30 assessed value of eighty thousand dollars or less, seven percent per 31 annum; and (ii) for real property with an assessed value of over eighty 32 thousand dollars, fifteen percent per annum. 33 (d) (i) Any tax or part of a tax that became due before July first, 34 two thousand five and remains unpaid after June thirtieth, two thousand 35 twenty-five, shall continue to accrue interest until paid at the rate 36 applicable under this section. 37 (ii) This section shall not apply to interest accrued before July 38 first, two thousand twenty-five. 39 (e) By May twenty-fifth of each year, the banking commission shall 40 send a written recommendation to the council of a proposed interest rate 41 to be charged for nonpayment of taxes on real property. The commission 42 shall consider the prevailing interest rates charged for commercial 43 loans extended to prime borrowers by commercial banks operating in the 44 city and: 45 (i) for real property with an assessed value of eighty thousand 46 dollars or less, shall propose a rate at least equal to such prevailing 47 prime rate; 48 (ii) for real property with an assessed value of over eighty thousand 49 dollars, shall propose a rate of at least six percent per annum greater 50 than such prevailing prime rate. 51 The council may by resolution adopt interest rates to be applicable to 52 the aforementioned properties and may specify in such resolution the 53 date that such rates will take effect. 54 (f) If the tax rate for any fiscal year of the city is not set by the 55 fifteenth of June preceding the start of such fiscal year, interest 56 shall not be charged for the first installment of tax which is due onS. 8474 178 1 the first day of July in such fiscal year if such installment is paid on 2 or before the extended payment date. For this purpose, the term 3 "extended payment date" means the date which falls the same number of 4 days after the first day of July in such fiscal year as the number of 5 days the date such tax rate is set falls after such fifteenth day of 6 June. 7 (g) For purposes of this section, property held in the cooperative 8 form of ownership shall not be deemed to have an assessed value of over 9 eighty thousand dollars if the property's assessed value divided by the 10 number of residential dwelling units is eighty thousand dollars or less 11 per unit. 12 § 11-225 Power of tax commission to remit or reduce taxes. The tax 13 commission shall have power to remit or reduce a tax imposed upon real 14 property where lawful cause therefor is shown or where such tax is found 15 to be excessive or otherwise erroneous, but such remission or reduction 16 shall be made only with respect to an assessment for which an applica- 17 tion for correction has been made pursuant to section one hundred 18 sixty-three of the charter, and no such remission or reduction shall be 19 made when a claim to correct the assessment or recover the tax would be 20 barred by passage of time or other adequate defense, or when, at the 21 time that the determination is rendered, applications for correction or 22 other proceedings are pending to review the assessment of such property 23 for more than one subsequent fiscal year, provided, however, the tax 24 commission shall have no power to remit or reduce a tax pursuant to this 25 section more than five years after the last day on which an application 26 for correction could have been filed to appeal the unlawful or erroneous 27 assessment upon which such tax was based. If such tax shall have been 28 paid the commissioner of finance is authorized to refund or credit the 29 amount of any such remission or reduction granted pursuant to this 30 section. When the correction results from an application for correction 31 made by the board of managers of a condominium, a refund may be paid to 32 the board of managers for distribution to the individual unit owners 33 with the consent of such board and on such conditions as the commission- 34 er deems appropriate. 35 § 11-226 Special right of entry; certificate of president. A right of 36 entry upon real property and into buildings and structures at all 37 reasonable times to ascertain the character of the property shall not be 38 allowed to any person acting in behalf of the tax commission, other than 39 the officials mentioned in sections one hundred fifty-six and fifteen 40 hundred twenty-one of the charter of the preceding municipality as it 41 existed on the first of January in the year next succeeding the effec- 42 tive date of this section, unless a certificate therefor, executed in 43 writing and signed by the president of the tax commission, is presented 44 by such person to the owner, lessee or occupant of the premises or his 45 agent before entry thereon is made. 46 § 11-227 Duties of authorized employees in examining applicants. a. 47 Employees of the tax commission, when authorized to take testimony on 48 application, shall reduce such testimony to writing. 49 b. Within ten days after the evidence on any application is taken, 50 they shall transmit the application and testimony so taken, with their 51 recommendation, to the tax commission at its main office or such other 52 office as the commission may prescribe. 53 § 11-228 Testimony taken on application to constitute part of record. 54 All written testimony taken by the tax commission, by a commissioner, or 55 by an employee of the commission authorized to take testimony on appli-S. 8474 179 1 cations, shall constitute part of the record of the proceedings upon any 2 assessment. 3 § 11-229 Solicitation of retainers prohibited. It shall be unlawful 4 for any person or his or her or its agents or employee, or any person 5 acting on his or her or its behalf, to solicit, or procure through 6 solicitation, either directly or indirectly, any retainer or agreement: 7 (a) Authorizing such person, or his or her or its agent, employee or 8 any person acting on his or her or its behalf, to make application to 9 the commissioner of finance or tax commission for the correction of a 10 tentative or final assessed valuation of real property on behalf of an 11 owner of such property or other person claiming to be aggrieved, or 12 (b) Authorizing such person, or his or her or its agent, employee or 13 any person acting on his or her or its behalf, to appear for such 14 purpose or represent such owner or aggrieved person before such commis- 15 sion or a commissioner or any other officer or employee authorized by 16 law to act upon such application, examine applicants, take testimony, 17 make or recommend the making of a correction of any such assessed valu- 18 ation, or take any other official action in relation to any such 19 correction. Any violation of this section shall be a misdemeanor. 20 § 11-230 Issuance of final determination; limitation of time. Except 21 as otherwise provided in section one hundred sixty-five of the charter 22 of the preceding municipality as it existed on the first of January in 23 the year next succeeding the effective date of this section, the final 24 determination of the tax commission upon any application for the 25 correction of an assessment and upon the evidence taken thereunder 26 shall, where the evidence is taken by the commission or by a commission- 27 er, be rendered within thirty days after the hearing of such application 28 is closed. Where the evidence is taken by an employee of the tax commis- 29 sion authorized to take testimony on applications, the final determi- 30 nation shall be rendered within thirty days after the application and 31 the testimony hereon shall have been filed with the commission at its 32 main office. 33 Immediately upon making a correction of an assessment, the tax commis- 34 sion shall notify the commissioner of finance thereof. 35 § 11-231 Proceeding to review tax assessment; contents of petition. a. 36 Any person or corporation claiming to be aggrieved by the assessed valu- 37 ation of real property may commence a proceeding to review or correct on 38 the merits a final determination of the tax commission by serving on the 39 president of the tax commission, or his or her duly authorized agent, a 40 copy of a verified petition as prescribed by law. No such petition shall 41 be accepted unless, prior to the service thereof, an index number has 42 been obtained from the county clerk. Within ten days after a proceeding 43 has been commenced as hereinbefore provided, the original verified peti- 44 tion with proof of service shall be filed in the office of the clerk of 45 the court in which the proceeding is to be heard. 46 b. Such review shall be allowed only on one or more of the following 47 grounds, which must be specified in such petition: 48 1. That the assessment is illegal, and stating the particulars of the 49 alleged illegality, or 50 2. That the assessment is erroneous by reason of over-valuation, or 51 3. That the assessment is erroneous by reason of inequality, in that 52 it has been made at a higher proportionate valuation than the assessment 53 of other real property on the assessment rolls of the city for the same 54 year, and for assessments made after December thirty-first, nineteen 55 hundred eighty-one, other real property within the same class as defined 56 in section eighteen hundred two of the real property tax law, specifyingS. 8474 180 1 the instances in which such inequality exists and the extent thereof, 2 and stating that the petitioner is or will be injured thereby, or 3 4. That the real property is misclassified, and stating the class in 4 which it is claimed the property should be classified. 5 c. The proceeding shall be maintained against the tax commission 6 either by naming the president and the commissioners of the tax commis- 7 sion individually, or by naming the tax commission of the city of Staten 8 Island generally. 9 d. Such proceeding to review and all proceedings thereunder shall be 10 brought at a special term of the supreme court in the judicial district 11 where the real property so assessed is situated. 12 e. The justice or referee before whom such proceeding shall be heard 13 may inspect the real property which is the subject of the proceeding. 14 § 11-232 Comptroller; rates of interest on taxes and assessments. The 15 comptroller shall not reduce the rate of interest upon any taxes or 16 assessments below the amount fixed by law. 17 § 11-233 Cancellation of unpaid taxes. When it shall appear to the 18 comptroller that the unpaid taxes or assessments, or both, together with 19 the interest and penalties thereon which may have been levied upon a 20 parcel of real estate subject to easements which were in existence prior 21 to the levying of such taxes or assessments, equal or exceed the sum for 22 which, under ordinary circumstances, such parcel of real estate would 23 sell subject to such easements, the comptroller, with the written 24 approval of the corporation counsel, may settle and adjust such unpaid 25 taxes or assessments, or both, with the interest and penalties thereon, 26 and when it shall appear to the comptroller that such parcel of real 27 estate would sell under ordinary circumstances subject to such easements 28 for only a nominal sum, then the comptroller with the written approval 29 of the corporation counsel may cancel such unpaid taxes and assessments 30 together with the interest and penalties thereon. 31 § 11-235 Board of estimate; power to cancel taxes, assessments and 32 water rents. The board of estimate, upon the written certificate of the 33 comptroller approving the same, with whom application for relief under 34 this section shall be filed, in its discretion and upon such terms as it 35 may deem proper, by unanimous vote, may cancel and annul all taxes, 36 assessments and water rents and sales to the city of any or all of the 37 same which now are or may hereafter become a lien against any real 38 estate owned by any corporation, entitled to exemption of such real 39 estate owned by it from local taxation under the provisions of the real 40 property tax law formerly contained in subdivision six of section four 41 of the tax law, provided that all taxes and water rents from which 42 relief is asked be apportioned as of the date such corporation took 43 title to such real estate, and that such taxes and water rents so appor- 44 tioned to the period before such date, and all assessments which became 45 a lien before such date, be paid. The commissioner of finance shall mark 46 the city's books and rolls of taxes, assessments and water rents in 47 accordance with the determination of the board of estimate in every case 48 in which action shall be taken under the provisions of this section. 49 § 11-236 Powers of board of estimate to cancel taxes, water rents and 50 assessments. The council by local law may authorize the board of esti- 51 mate, by a unanimous vote, upon the written consent of the comptroller, 52 to cancel and annul any taxes, water rents and assessments constituting 53 a lien against any real property owned by a corporation whose property 54 is exempt from taxation under the provisions of the real property tax 55 law, notwithstanding that such taxes, water rents or assessments shall 56 have become a lien against such real property while owned by a person orS. 8474 181 1 corporation not exempt under such section. The commissioner of finance 2 shall mark the city's books and rolls of taxes and assessments in 3 accordance with the determination of the board of estimate under such 4 local law. 5 § 11-237 Cancellation of assessments, water and sewer rents on real 6 property acquired by tax enforcement foreclosure proceedings. Upon the 7 cancellation of unpaid assessments, water and sewer rents by the city 8 collector pursuant to section 11-353 of this title, the comptroller 9 shall charge the unpaid amounts for assessments for local improvements, 10 so cancelled, to the surplus in the appropriate assessment fund; the 11 unpaid amounts for water charges, meter setting and repair, meter glass- 12 es and sewer rents, so cancelled, shall be deducted from the accounts 13 receivable of the appropriate fund. 14 § 11-238 Real property tax surcharge on absentee landlords. a. Impo- 15 sition of surcharge. A real property tax surcharge is hereby imposed on 16 class one property, as defined in section eighteen hundred two of the 17 real property tax law, excluding vacant land, that provides rental 18 income and is not the primary residence of the owner or owners of such 19 class one property, or the primary residence of the parent or child of 20 such owner or owners, in an amount equal to zero percent of the net real 21 property taxes for fiscal years beginning on or after the first of July 22 in the second year next succeeding the effective date of this section. 23 As used in this section, "net real property tax" means the real property 24 tax assessed on class one property after deduction for any exemption or 25 abatement received pursuant to the real property tax law or this title. 26 b. Rental income, primary residence and/or relationship to owner or 27 owners. The property shall be deemed to be the primary residence of the 28 owner or owners thereof, if such property would be eligible to receive 29 the real property tax exemption pursuant to section four hundred twen- 30 ty-five of the real property tax law, regardless of whether such owner 31 or owners has filed an application for, or the property is currently 32 receiving, such exemption. Proof of primary residence and the resident's 33 or residents' relationship to the owner or owners and the absence of 34 rental income shall be in the form of a certification as required by the 35 rules of the commissioner. 36 c. Rules. The department of finance shall have, in addition to any 37 other functions, powers and duties which have been or may be conferred 38 on it by law, the power to make and promulgate rules to carry out the 39 purposes of this section, including, but not limited to, rules related 40 to the timing, form and manner of any certification required to be 41 submitted under this section. 42 d. Penalties. 1. Notwithstanding any provision of any general, special 43 or local law to the contrary, an owner or owners shall be personally 44 liable for any taxes owed pursuant to this section whenever such owner 45 or owners fail to comply with this section or the rules promulgated 46 hereunder, or makes a false or misleading statement or omission and the 47 commissioner determines that such act was due to the owner or owners' 48 willful neglect, or that under such circumstances such act constituted a 49 fraud on the department. The remedy provided herein for an action in 50 person shall be in addition to any other remedy or procedure for the 51 enforcement of collection of delinquent taxes provided by general, 52 special or local law. 53 2. If the commissioner should determine, within three years from the 54 filing of an application or certification pursuant to this section, that 55 there was a material misstatement on such application or certification,S. 8474 182 1 he or she shall impose a penalty tax against the property of five 2 hundred dollars, in accordance with the rules promulgated hereunder. 3 e. Cessation of use. In the event that a property granted an exemption 4 from taxation pursuant to this section ceases to be used as the primary 5 residence of such owner or owners or his, her or their parent or child, 6 or produces rental income, such owner or owners shall so notify the 7 commissioner. 8 SUBCHAPTER 2 9 EXEMPTIONS FROM REAL PROPERTY TAXATION 10 PART 1 11 EXEMPTIONS FOR CERTAIN RESIDENTIAL PROPERTY 12 § 11-241 Discrimination in tax exempt projects. No exemption from 13 taxation, for any project, other than a project hitherto agreed upon or 14 contracted for, shall be granted to a housing company, insurance compa- 15 ny, redevelopment company or redevelopment corporation, which shall 16 directly or indirectly, refuse, withhold from, or deny to any person any 17 of the dwelling or business accommodations in such project or property, 18 or the privileges and services incident to occupancy thereof, on account 19 of the race, color or creed of any such person. 20 Any exemption from taxation hereafter granted shall terminate sixty 21 days after a finding by the supreme court of the state of New York that 22 such discrimination is being or has been practiced in such project or 23 property; if within sixty days such discrimination shall have been 24 ended, then the exemption shall not terminate. 25 § 11-242 Exemption and tax abatement in regard to improvements of 26 substandard dwellings. a. As used in this section, the following terms 27 shall have the following meanings: 1. "Alteration" and "improvement": a 28 physical change in an existing dwelling other than painting, ordinary 29 repairs, normal replacements or maintenance items. 30 2. "Existing dwelling": a class A multiple dwelling in existence prior 31 to the commencement of alterations for which tax exemption and abatement 32 is claimed under the terms of this section and for which a valuation 33 appears on the annual record of assessed valuation of the city for the 34 fiscal year nineteen hundred fifty-five--nineteen hundred fifty-six. 35 3. "Start" on alteration or improvement: begin any physical operation 36 undertaken for the purpose of making alterations or improvements to an 37 existing dwelling. 38 4. "Complete" an alteration or improvement: conclude or terminate any 39 physical operation such as is referred to in subparagraph three of this 40 paragraph, to an extent or degree which renders such building capable of 41 use for the purpose for which the improvements or alterations were 42 intended. 43 5. "Multiple dwelling": multiple dwellings as that term is defined in 44 section four of the multiple dwelling law. 45 b. Any increase in assessed valuation resulting from alterations and 46 improvements to existing dwellings to eliminate presently existing 47 unhealthy or dangerous conditions in any existing dwelling or to replace 48 inadequate and obsolete sanitary facilities in any such dwelling, any of 49 which represent fire or health hazards, or to provide central or other 50 appropriate and approved heating, except insofar as the gross cubic 51 content of the building is increased thereby, shall be exempt from taxa- 52 tion for local purposes for a period of twelve years after the taxable 53 status date immediately following the completion of the alterations and 54 improvements, to the extent that such increase in assessed valuation 55 result from the reasonable cost of such alterations and improvements, 56 providing that construction is started after March first, nineteenS. 8474 183 1 hundred fifty-five and completed before December thirty-first, nineteen 2 hundred fifty-nine. The assessed valuation allocated to such dwelling 3 after such alterations and improvements during such period of twelve 4 years, exclusive of the increase in valuation which is exempted, shall 5 not exceed the valuation of the previously existing dwelling appearing 6 on the assessment rolls after the taxable status date immediately 7 preceding the commencement of such alterations and improvements. The 8 assessed valuation of the land occupied by such dwelling and any 9 increase in valuation resulting from alterations and improvements other 10 than those made pursuant to this section, shall not be affected by the 11 provisions of this section. 12 c. The taxes upon any such property, including the land, shall be 13 abated and reduced by an amount equal to eight and one-third per centum 14 of the reasonable cost of such alterations and improvements each year 15 for a period of nine years commencing with the first tax bill for the 16 first tax year in which the exemption herein provided is effective, but 17 such abatement of taxes in any consecutive twelve-month period shall in 18 no event exceed the amount of taxes payable in such period. 19 d. The department of buildings shall determine and certify the reason- 20 able cost of any such alterations and improvements and for that purpose 21 may adopt rules and regulations, administer oaths to and take testimony 22 of any person, including but not limited to the owner of such property, 23 may issue subpoenas requiring the attendance of such persons and the 24 production of such books, papers or other documents as the department 25 shall deem necessary, may make preliminary estimates of the maximum 26 reasonable cost of such alterations and improvements, may establish 27 maximum allowable costs for specified units, fixtures or work in such 28 alterations or improvements, and may require the submission of plans and 29 specifications of such alteration and improvements before the start 30 thereof. Application forms for the benefits of this section shall be 31 filed with the tax commission between February first and March fifteenth 32 and the tax commission shall certify to the city collector the amount of 33 taxes to be abated and reduced, pursuant to the certification of the 34 commissioner of buildings as herein provided. No such application shall 35 be accepted unless accompanied by copies of certificates of the city 36 planning commission and the commissioner of buildings, as provided in 37 this subdivision and in subdivision e of this section. 38 e. To the end that alterations and improvements in such property shall 39 interfere as little as practicable with urgently needed public improve- 40 ments, and the clearance and rebuilding of substandard and insanitary 41 areas, and shall be confined to multiple dwellings which are struc- 42 turally sound, comply with applicable provisions of law, and are 43 provided with adequate central or other appropriate and approved heating 44 exemption or abatement from taxation hereunder shall be restricted to 45 dwellings which: (1) the city planning commission certify will not undu- 46 ly interfere with projected public improvements or the clearance and 47 rebuilding of substandard and insanitary areas which certification shall 48 be evidenced by a certificate describing the property involved and shall 49 be issued upon application to such city planning commission in such 50 manner and in such form as may be prescribed by such city planning 51 commission, and (2) which the department of buildings shall certify to 52 be structurally sound, comply with applicable provisions of law and 53 provide central or other appropriate and approved heating, which certif- 54 ication shall be evidenced by a certificate describing the property 55 involved and shall be issued upon application to the department of 56 buildings in such manner and in such form as may be prescribed by suchS. 8474 184 1 department. Where the improvements and alterations include or benefit 2 that part of a building which is occupied by stores or used for commer- 3 cial purposes, the cost shall be apportioned so that the benefits of 4 this section shall not be provided for the cost of the improvements or 5 alterations made for store or commercial purposes. 6 f. Notwithstanding the provisions of the multiple dwelling law, or any 7 local law, ordinance, provisions of this code, rule or regulation, any 8 dwelling to which alterations and improvements are made pursuant to this 9 section and which did not require a certificate of occupancy on April 10 second, nineteen hundred forty-five, may be occupied lawfully after such 11 date upon the completion of such alterations and improvements without 12 such a certificate being obtained, provided, however, that such alter- 13 ations and improvements shall have been made in conformity with law and 14 the applicable provisions for fire protection required by articles six 15 and seven of the multiple dwelling law. 16 g. No owner of a dwelling to which the benefits of this section shall 17 be applied nor any agent, employee, manager or officer of such owner 18 shall directly or indirectly deny to any person because of race, color, 19 creed, or religion any of the dwelling accommodations in such property 20 or any of the privileges or services incident to occupancy therein. 21 h. Each agency to which functions are assigned by this section may 22 adopt rules and regulations for the effectuation of the purposes of this 23 section, and a copy, for each member of the council, of such rules and 24 regulations shall be filed with the clerk of the council prior to 25 promulgation. 26 i. Any person who shall knowingly and wilfully make any false state- 27 ment as to any material matter in any application for the benefits of 28 this section shall be guilty of an offense punishable by a fine of not 29 more than five hundred dollars or imprisonment for not more than ninety 30 days, or both. 31 j. The benefits of this section shall not apply to any multiple dwell- 32 ing which is not subject to the provisions of the emergency housing rent 33 control law or its successor statute for the city of Staten Island, 34 provided that this subdivision shall not operate to rescind any benefits 35 granted by the tax commission under this section prior to July first, 36 nineteen hundred fifty-eight; and further provided that where the bene- 37 fits herein provided were or are granted by the tax commission on or 38 after July first, nineteen hundred fifty-eight to any multiple dwelling 39 which is decontrolled subsequent to the granting of such benefits, the 40 tax commission shall withdraw such benefits, effective upon the 41 commencement of the first tax year following the tax year in which such 42 multiple dwelling is decontrolled. 43 § 11-243 Reextension of exemption and tax abatement in regard to 44 improvements of substandard dwellings. a. As used in this section, the 45 following terms shall have the following meanings: 46 1. "Alteration" and "improvement": a physical change in an existing 47 dwelling other than painting, ordinary repairs, normal replacement of 48 maintenance items, provided, however, that ordinary repairs and normal 49 replacement of maintenance items, as defined by rules adopted by the 50 department of housing preservation and development pursuant to subdivi- 51 sion m of this section, shall be eligible for tax exemption and tax 52 abatement under this section provided that repairs and maintenance 53 items: 54 (1) were started and completed within a twelve-month period, 55 (2) were made to any common area of the dwelling premises concurrently 56 with a major capital improvement thereto, as defined by rules adopted byS. 8474 185 1 the department of housing preservation and development pursuant to 2 subdivision m of this section, 3 (3) require the issuance of a permit for at least one item thereof by 4 any city agency, and 5 (4) the amount of money expended thereon shall not exceed two times 6 the amount expended on the major capital improvement performed concur- 7 rently therewith. 8 "Alteration" and "improvement" shall also mean "an abatement" of lead- 9 based paint hazards, as defined in part 745 of title forty of the code 10 of federal regulations or any successor regulations in any existing 11 dwelling including any common areas, and shall include an "inspection" 12 and "risk assessment" for lead-based paint hazards, as defined in such 13 part, in a dwelling unit whether such unit is vacant or occupied but 14 shall not include any work performed to comply with a notice of 15 violation issued for a violation of article fourteen of subchapter two 16 of chapter two of title 27 of the administrative code of the city of New 17 York. For purposes of this paragraph, the term, "targeted area" shall 18 mean the geographical area of New York city that is determined by the 19 department of health and mental hygiene to have high rates of children 20 with environmental intervention blood lead levels. The department of 21 housing preservation and development shall establish two schedules of 22 certified reasonable costs for items that are included in an abatement 23 of lead-based paint hazards, one covering such abatement that is 24 performed in an eligible dwelling unit or common area located in the 25 targeted area, and one covering such abatement that is performed in an 26 eligible dwelling unit or common area that is not located in the target- 27 ed area. The first such schedules shall be promulgated by the department 28 of housing preservation and development within 180 days of the effective 29 date of this section and shall be used for any such abatements that are 30 commenced on or after August 2, 2004. Such schedules shall be reviewed 31 by such department biennially following their effective dates and 32 amended as necessary. Notwithstanding any other provision of law or 33 rule, an owner who performs an abatement of lead-based paint hazards 34 pursuant to this paragraph shall not be required to comply with subdivi- 35 sion y of this section which provides for filing of a notice of intent 36 form prior to the commencement of work, and no additional fee or penalty 37 shall be due and owing the department at the time of issuance of a 38 certificate of eligibility and reasonable cost for failure to file such 39 notice of intent. 40 2. "Existing dwelling": except as hereinafter provided in subdivision 41 d of this section, a class A multiple dwelling or a building consisting 42 of one or two dwelling units over space used for commercial occupancy in 43 existence prior to the commencement of alterations for which tax 44 exemption and abatement is claimed under the terms of this section and 45 for which a valuation appears on the annual record of assessed valuation 46 of the city for the fiscal year immediately preceding the commencement 47 of such alterations and improvements. 48 3. "Start" an alteration or improvement: begin any physical operation 49 undertaken for the purpose of making alterations or improvements to an 50 existing dwelling. 51 4. "Complete" an alteration or improvement: conclude or terminate any 52 physical operation such as is referred to in paragraph three of this 53 subdivision, to an extent or degree which renders such building capable 54 of use for the purpose for which the improvements or alterations were 55 intended.S. 8474 186 1 5. "Multiple dwelling": multiple dwellings as that term is defined in 2 section four of the multiple dwelling law. 3 6. "Moderate rehabilitation": shall mean a scope of work which 4 (a) includes a building-wide replacement of a major component of one 5 of the following systems: 6 (1) Elevator 7 (2) Heating 8 (3) Plumbing 9 (4) Wiring 10 (5) Window; and 11 (b) has a certified reasonable cost of not less than twenty-five 12 hundred dollars, exclusive of any certified reasonable cost for ordinary 13 repairs, for each dwelling unit in existence at the commencement of the 14 rehabilitation; except that the department of housing preservation and 15 development may establish a minimum certified reasonable cost to be 16 greater than twenty-five hundred dollars per dwelling unit pursuant to 17 subdivision m of this section. 18 7. "Substantially occupied": shall mean an occupancy of not less than 19 sixty percent of all dwelling units immediately prior and during reha- 20 bilitation, except that the department of housing preservation and 21 development may establish higher percentages of occupancy pursuant to 22 subdivision m of this section. 23 8. "Private dwelling" shall mean any building or structure designed 24 and occupied for residential purposes by not more than two families. 25 Private dwellings shall also be deemed to include a series of one-family 26 or two-family dwelling units each of which faces or is accessible to a 27 legal street or public thoroughfare, if each such dwelling unit is 28 equipped as a separate dwelling unit with all essential services, and if 29 each such unit is arranged so that it may be approved as a legal one-fa- 30 mily or two-family dwelling. 31 b. Subject to the limitations provided in subdivision d of this 32 section and the restrictions in this section on conversion of buildings 33 used in whole or in part for single room occupancy, any increase in the 34 assessed valuation of real property shall be exempt from taxation for 35 local purposes to the extent such increase results from the reasonable 36 cost of: (1) the conversion of a class B multiple dwelling to a class A 37 multiple dwelling except insofar as the gross cubic content of such 38 building is increased thereby; or (2) the conversion of any nonresiden- 39 tial building or structure situated in the county of Richmond to a class 40 A multiple dwelling except insofar as the gross cubic content of such 41 building or structure is increased thereby; or (3) alterations or 42 improvements to the exterior of an otherwise eligible building or struc- 43 ture visible from a public street pursuant to a permit issued by the 44 landmarks commission with respect to a designated historic or landmark 45 site or structure; or (4) alterations or improvements constituting a 46 moderate rehabilitation of a substantially occupied class A multiple 47 dwelling except insofar as the gross cubic content of such building or 48 structure is increased thereby; or (5) alterations or improvements to an 49 otherwise eligible building or structure commenced after January first, 50 nineteen hundred eighty designed to conserve the use of fuel, electric- 51 ity or other energy sources or to reduce demand for electricity, includ- 52 ing the installation of meters for purposes of measuring the amount of 53 electricity consumed for each dwelling unit, and conversions of direct 54 metering to a system that includes a master meter and submeters in any 55 cooperative, condominium, or housing development fund company organized 56 under article eleven of the private housing finance law; or (6) alter-S. 8474 187 1 ations or improvements to existing dwellings to eliminate existing 2 unhealthy or dangerous conditions in any such existing dwelling or 3 replace inadequate and obsolete sanitary facilities in any such existing 4 dwelling, any of which represents fire or health hazards, including as 5 improvements asbestos abatement to the extent such asbestos abatement is 6 required by federal, state or local law, except insofar as the gross 7 cubic content of such existing dwelling is increased thereby; or (7) 8 conversion of residential units qualified for the protection of article 9 seven-C of the multiple dwelling law in buildings or portions thereof 10 registered with the New York city loft board as interim multiple dwell- 11 ings pursuant to such article to units which are in compliance with the 12 standards of safety and fire protection set forth in article seven-B of 13 the multiple dwelling law or to units which have a certificate of occu- 14 pancy as class A multiple dwellings; or (8) alterations or improvements 15 commenced on or after September first, nineteen hundred eighty-seven 16 constituting a substantial rehabilitation of a class A multiple dwell- 17 ing, or a conversion of a building or structure into a class A multiple 18 dwelling, as part of a program to provide housing for low and moderate 19 income households as defined by the department of housing preservation 20 and development pursuant to the rules and regulations promulgated pursu- 21 ant to subdivision m of this section, provided that such alterations or 22 improvements or conversions shall be aided by a grant, loan or subsidy 23 from any federal, state or local agency or instrumentality, including, 24 in the discretion of the department of housing preservation and develop- 25 ment, a subsidy in the form of a below market sale from the city of New 26 York; or (9) alterations or improvements to any private dwelling or 27 conversion of any private dwelling to a multiple dwelling or conversion 28 of any multiple dwelling to a private dwelling, provided that such 29 alterations, improvements or conversions are part of a project that has 30 applied for or is receiving benefits pursuant to this section and shall 31 be aided by a grant, loan or subsidy from any federal, state or local 32 agency or instrumentality. Such conversions, alterations or improvements 33 shall be completed within thirty-six months after the date on which same 34 shall be started except that such thirty-six month limitation shall not 35 apply to conversions of residential units which are registered with the 36 loft board in accordance with article seven-C of the multiple dwelling 37 law pursuant to paragraph eight of this subdivision. Provided, however, 38 a sixty-month period for completion shall be available for alterations 39 or improvements undertaken by a housing development fund company organ- 40 ized pursuant to article eleven of the private housing finance law, 41 which are carried out with the substantial assistance of grants, loans 42 or subsidies from any federal, state or local governmental agency or 43 instrumentality or which are carried out in a property transferred from 44 the city of New York or the city of Staten Island if alterations and 45 improvements are completed within seven years after the date of trans- 46 fer. In addition, the department of housing preservation and development 47 may grant an extension of the period of completion for any project 48 carried out with the substantial assistance of grants, loans or subsi- 49 dies from any federal, state or local governmental agency or instrumen- 50 tality, if such alterations, improvements or conversions are completed 51 within sixty months from commencement of construction. Provided, 52 further, that such conversions, alterations or improvements shall in any 53 event be completed prior to the thirty-first of December in the third 54 year next succeeding the effective date of this section. Exemption for 55 conversions, alterations or improvements pursuant to paragraph one, two, 56 three, four, six, seven, eight or ten of this subdivision shall continueS. 8474 188 1 for a period not to exceed fourteen years and begin no sooner than the 2 first tax period immediately following the completion of such conver- 3 sions, alterations or improvements. Exemption for alterations or 4 improvements pursuant to paragraph five or nine of this subdivision 5 shall continue for a period not to exceed thirty-four years and shall 6 begin no sooner than the first tax period immediately following the 7 completion of such alterations or improvements. Such exemption shall be 8 equal to the increase in the valuation, which is subject to exemption in 9 full or proportionally under this subdivision for ten or thirty years, 10 whichever is applicable. After such period of time, the amount of such 11 exempted assessed valuation of such improvements shall be reduced by 12 twenty percent in each succeeding year until the assessed value of the 13 improvements is fully taxable. Provided, however, exemption for any 14 conversions, alterations or improvements, which are aided by a loan or 15 grant under article eight, eight-A, eleven, twelve, fifteen, or twenty- 16 two of the private housing finance law, section six hundred ninety-six-a 17 or section ninety-nine-h of the general municipal law, or section three 18 hundred twelve of the housing act of nineteen hundred sixty-four (42 19 U.S.C.A. 1452b), or the Cranston-Gonzalez national affordable housing 20 act, (42 U.S.C.A. 12701 et. seq.), or started after July first, nineteen 21 hundred eighty-three by a housing development fund company organized 22 pursuant to article eleven of the private housing finance law which are 23 carried out with the substantial assistance of grants, loans or subsi- 24 dies from any federal, state or local governmental agency or instrumen- 25 tality or which are carried out in a property transferred from the city 26 of New York and where alterations and improvements are completed within 27 seven years after the date of transfer may commence at the beginning of 28 any tax period subsequent to the start of such conversions, alterations 29 or improvements and prior to the completion of such conversions, alter- 30 ations or improvements. The assessed valuation of the land occupied by 31 such dwelling and any increase in assessed valuation resulting from 32 conversions, alterations, or improvements other than those made pursuant 33 to this section shall not be affected by the provisions of this section. 34 b-1. Notwithstanding the provisions of subdivision b of this section, 35 alterations, improvements or conversions of any building or structure 36 that are eligible for benefits pursuant to subdivision b of this section 37 except insofar as the gross cubic content of such building or structure 38 is increased thereby shall be eligible for such benefits insofar as the 39 gross cubic content of such building or structure is increased thereby 40 provided that: 41 (1) for all tax lots now existing or hereafter created, at least fifty 42 percent of the floor area of the completed building or structure 43 consists of the pre-existing building or structure that was converted, 44 altered or improved in accordance with subdivision b of this section, 45 and 46 (2) for tax lots now existing or hereafter created within the follow- 47 ing area in the borough of Manhattan, such conversions, alterations or 48 improvements are aided by a grant, loan or subsidy from any federal, 49 state or local agency or instrumentality: beginning at the intersection 50 of the United States pierhead line in the Hudson river and the center 51 line of Chambers street extended, thence easterly to the center line of 52 Chambers street and continuing along the center line of Chambers street 53 to the center line of Centre street, thence southerly along the center 54 line of Centre street to the center line of the Brooklyn Bridge to the 55 intersection of the Brooklyn Bridge and the United States pierhead line 56 in the East river, thence northerly along the United States pierheadS. 8474 189 1 line in the East river to the intersection of the United States pierhead 2 line in the East river and the center line of one hundred tenth street 3 extended, thence westerly to the center line of one hundred tenth street 4 and continuing along the center line of one hundred tenth street to its 5 westerly terminus, thence westerly to the intersection of the center 6 line of one hundred tenth street extended and the United States pierhead 7 line in the Hudson river, thence southerly along the United States pier- 8 head line in the Hudson river to the point of beginning. 9 (3) For purposes of this subdivision, "floor area" shall mean the 10 horizontal areas of the several floors or any portion thereof of a 11 dwelling or dwellings and accessory structures on a lot measured from 12 the exterior faces of exterior walls or from the center line of party 13 walls. 14 (4) Nothing in this subdivision shall be construed to provide tax 15 abatement benefits pursuant to subdivision c of this section for the 16 costs attributable to the increased cubic content in any such building 17 or structure. 18 c. (1) Except as provided in paragraphs two, three and four of this 19 subdivision, the taxes upon any real property, including the land, may 20 be abated each year for a period of not more than twenty years by an 21 amount no greater than eight and one-third per centum of the reasonable 22 cost of eligible conversions, alterations or improvements provided in 23 paragraphs one through eight and paragraph ten of subdivision b of this 24 section provided that the abatement in taxes in any consecutive twelve- 25 month period shall in no event exceed the amount of taxes payable in 26 such twelve-month period; and provided further that alterations or 27 improvements pursuant to paragraph four of subdivision b of this section 28 shall only receive the benefits of this section if construction 29 commenced after January first, nineteen hundred seventy-eight and that 30 in no event shall the aggregate abatement exceed ninety per centum of 31 the reasonable cost of conversions, alterations or improvements provided 32 in paragraphs one, three, four, six, seven, and ten of subdivision b of 33 this section, or exceed fifty per centum of the reasonable cost of 34 conversions pursuant to paragraph one of subdivision b of this section 35 if construction commenced after January first, nineteen hundred eighty- 36 two or exceed fifty per centum of the reasonable cost of conversions 37 pursuant to paragraphs two and eight of subdivision b of this section, 38 or exceed one hundred per centum of the reasonable cost of alterations 39 or improvements pursuant to paragraph five of subdivision b of this 40 section provided that where alterations or improvements pursuant to 41 paragraphs four and six of subdivision b of this section are done in 42 conjunction with a conversion pursuant to paragraph two of subdivision b 43 of this section, the aggregate abatement shall not exceed fifty per 44 centum of the reasonable cost. Notwithstanding the foregoing, the taxes 45 upon real property, including the land may be abated for a period of not 46 more than twenty years at eight and one-third per centum of the reason- 47 able cost of conversions where construction actually commenced in good 48 faith prior to July first, nineteen hundred eighty pursuant to an alter- 49 ation permit issued by the department of buildings prior to July first, 50 nineteen hundred eighty provided that the aggregate abatement shall not 51 exceed ninety per centum of the reasonable cost thereof and provided 52 further that in no event shall the abatement in taxes in any twelve- 53 month period exceed the amount of taxes payable in such twelve-month 54 period. In no event, however, shall the aggregate abatement for conver- 55 sions, alterations or improvements pursuant to subdivision b of this 56 section exceed such dollar limit per existing class A dwelling unit orS. 8474 190 1 additional unit created by conversion to a class A multiple dwelling as 2 may be established pursuant to rules and regulations promulgated by the 3 department of housing preservation and development pursuant to subdivi- 4 sion m of this section. Only those items of work set forth in the item- 5 ized cost breakdown schedule contained in rules and regulations promul- 6 gated by the department of housing preservation and development pursuant 7 to subdivision m of this section shall be eligible for tax abatement. 8 Such abatement shall commence on the later of July first, nineteen 9 hundred seventy-eight or the first day of the first tax quarter follow- 10 ing the completion of such construction and the filing for benefits as 11 provided in subdivision h of this section except that such period of 12 abatement may commence on the later of the first day of the first tax 13 quarter following commencement of any conversion, alteration or improve- 14 ment or (i) July first, nineteen hundred seventy-six, if aided by a loan 15 pursuant to article eight of the private housing finance law and 16 completed after December thirty-first, nineteen hundred seventy-five; or 17 (ii) July first, nineteen hundred seventy-seven, if aided by a loan 18 pursuant to article fifteen of the private housing finance law; or (iii) 19 July first, nineteen hundred eighty, if aided by a loan pursuant to 20 article eight-A of the private housing finance law; or (iv) July first, 21 nineteen hundred eighty, if aided by a loan pursuant to section three 22 hundred twelve of the housing act of nineteen hundred sixty-four (42 23 U.S.C.A. §1452b); or (v) July first, nineteen hundred ninety-two, if 24 started after such date and aided by a loan or grant under article elev- 25 en, twelve, or twenty-two of the private housing finance law, section 26 six hundred ninety-six-a or section ninety-nine-h of the general munici- 27 pal law, or the Cranston-Gonzalez national affordable housing act (42 28 U.S.C.A. 12701 et seq.); or (vi) July first, nineteen hundred eighty- 29 eight, if started after such date by or on behalf of a company not qual- 30 ified under any of the above provisions, which is a not-for-profit 31 corporation qualified pursuant to section 501(c)(3) of the internal 32 revenue code and which has entered into a regulatory agreement with the 33 local housing agency requiring operation of the property as housing for 34 low and moderate income persons and families. 35 (2) In the case of alterations or improvements pursuant to paragraph 36 five of subdivision b of this section which are carried out with the 37 substantial assistance of grants, loans or subsidies from any federal, 38 state or local agency or instrumentality or any not-for-profit philan- 39 thropic organization one of whose primary purposes is providing low or 40 moderate income housing or financed with mortgage insurance by the New 41 York city residential mortgage insurance corporation or the state of New 42 York mortgage agency or pursuant to a program established by the federal 43 housing administration for rehabilitation of existing multiple dwellings 44 in a neighborhood strategy area as defined by the United States depart- 45 ment of housing and urban development, the abatement of taxes on such 46 property, including the land, shall not exceed the lesser of the actual 47 cost of the alterations or improvements or one hundred fifty per centum 48 of the certified reasonable cost of the alterations or improvements, as 49 determined under regulations of the department of housing preservation 50 and development, and the annual abatement of taxes shall not exceed 51 twelve and one-half per centum of such certified reasonable cost, 52 provided that such abatement shall not be effective for more than twenty 53 years and the annual abatement of taxes in any consecutive twelve-month 54 period shall in no event exceed the amount of taxes payable in such 55 twelve-month period.S. 8474 191 1 (3) In the case of alterations or improvements carried out with the 2 substantial assistance of grants, loans or subsidies from any federal, 3 state or local agency or instrumentality or any not-for-profit philan- 4 thropic organization one of whose primary purposes is providing low or 5 moderate income housing, or financed with mortgage insurance by the New 6 York city residential mortgage insurance corporation or the state of New 7 York mortgage agency or pursuant to a program established by the federal 8 housing administration for rehabilitation of existing multiple dwellings 9 in a neighborhood strategy area as defined by the United States depart- 10 ment of housing and urban development where such alterations or improve- 11 ments are done on property located in census tracts in which seventy- 12 five percent or more of the population live in households which earn 13 fifty percent or less of the median household income of the city, the 14 abatement of taxes on such property, including the land, shall not 15 exceed the lesser of the actual cost of the alterations or improvements 16 or one hundred fifty per centum of the certified reasonable cost of the 17 alterations or improvements, as determined under regulations of the 18 department of housing preservation and development, and the annual 19 abatement of taxes shall not exceed twelve and one-half per centum of 20 such certified reasonable cost, provided that such abatement shall not 21 be effective for more than twenty years and the annual abatement of 22 taxes in any consecutive twelve-month period shall in no event exceed 23 the amount of taxes payable in such twelve-month period. 24 (4) In the case of alterations, improvements or conversions pursuant 25 to paragraph eight of subdivision b of this section, the abatement of 26 taxes on such property, including the land, shall not exceed the lesser 27 of the actual cost of the alterations or improvements or one hundred 28 fifty per centum of the certified reasonable cost of the alterations or 29 improvements, as determined under regulations of the department of hous- 30 ing preservation and development, and the annual abatement of taxes 31 shall not exceed twelve and one-half per centum of such certified 32 reasonable cost, provided that such abatement shall not be effective for 33 more than twenty years and the annual abatement of taxes in any consec- 34 utive twelve-month period shall in no event exceed the amount of taxes 35 payable in such twelve-month period. 36 d. The benefits of this section shall apply: 37 (1) to any multiple dwelling which is altered, improved or increased 38 in valuation with aid of a loan provided by the city of New York or the 39 city of Staten Island, the New York city housing development corporation 40 or the United States department of housing and urban development for the 41 elimination of conditions dangerous to human life or detrimental to 42 health, including nuisances as defined in section three hundred nine of 43 the multiple dwelling law, or other rehabilitation or improvement wheth- 44 er or not all of the units thereof were in existence prior to rehabili- 45 tation pursuant to the provisions of: (i) article two, eight or eight-A 46 of the private housing finance law provided that such dwelling is made 47 available solely to persons or families of low income as defined in said 48 articles, (ii) article twelve of the private housing finance law, (iii) 49 article fifteen of the private housing finance law or (iv) any federal 50 law where the multiple dwelling is supervised or regulated by the United 51 States department of housing and urban development. 52 (2) except as hereinafter provided, to any building or structure which 53 is converted to a class A multiple dwelling or to any existing dwelling 54 which is substantially rehabilitated, and further provided that the 55 rents subsequent to conversion or substantial rehabilitation shall not 56 exceed such amount as may be fixed: (i) by the United States departmentS. 8474 192 1 of housing and urban development, (ii) pursuant to the private housing 2 finance law of the state of New York, or (iii) pursuant to chapter three 3 or chapter four of title twenty-six of the code of the preceding munici- 4 pality, provided that the initial legal regulated rent for the dwelling 5 units shall be the rent charged and paid by the initial tenant and 6 registered with the New York state division of housing and community 7 renewal. Buildings or structures which are converted to class A multiple 8 dwellings and existing dwellings which are substantially rehabilitated 9 shall contain bedrooms in a number equal to at least fifty percent of 10 the apartments created where an alteration permit has been issued by the 11 department of buildings prior to April first, nineteen hundred eighty 12 and seventy-five percent of the apartments created where an alteration 13 permit has been issued by the department of buildings on or after April 14 first, nineteen hundred eighty provided, however, that if a building or 15 structure is converted from a non-residential use to a class A multiple 16 dwelling and the units therein contain an average floor area of one 17 thousand square feet, such requirement as to the number of bedrooms 18 shall not be applicable and if an existing dwelling is substantially 19 rehabilitated, the seventy-five percent bedroom requirement shall be 20 reduced to the extent its application would necessitate a reduction in 21 the number of units which are contained in the existing dwelling prior 22 to commencement of substantial rehabilitation. 23 (3) to any multiple dwelling, building or structure otherwise eligible 24 for any of the benefits of this section which: 25 (i) is operated exclusively for the benefit of persons or families who 26 are or will be entitled to occupancy by reason of ownership of stock or 27 membership in the corporate owner, or for the benefit of such persons or 28 families and other persons or families entitled to occupancy under 29 applicable provisions of law without ownership of stock or membership in 30 the corporate owner, or (ii) is owned as a condominium and is occupied 31 as the residence or home of three or more families living independently 32 of each other; provided, however, that, in addition to all other condi- 33 tions of eligibility for the benefits of this section, except for multi- 34 ple dwellings in which units have been newly created by substantial 35 rehabilitation of vacant buildings or conversions of non-residential 36 buildings, the availability of benefits under this section for such 37 multiple dwellings, buildings or structures shall be conditioned on the 38 following: (a) alterations or improvements to at least one building-wide 39 system are part of the application for benefits, and (b) (i) the 40 assessed valuation of such multiple dwelling, building, or structure, 41 including land, shall not exceed an average of thirty thousand dollars 42 per dwelling unit at the time of the commencement of the alterations or 43 improvements, and (ii) during the three years immediately preceding the 44 commencement of the alterations or improvements the average per room 45 sale price of the dwelling units or the stock allocated to such dwelling 46 units shall have been no greater than thirty-five percent of the maximum 47 mortgage amount for a single family home eligible for purchase by the 48 Federal National Mortgage Association; provided that if less than ten 49 percent of the dwelling units or an amount of stock less than the amount 50 allocable to ten percent of such dwelling units was not transferred 51 during such preceding three year period, eligibility for benefits shall 52 be conditioned upon the multiple dwelling, building, or structure having 53 an assessed valuation per dwelling unit of no more than twenty-five 54 thousand dollars at the time of the commencement of the alterations or 55 improvements. Provided, further, that such benefits shall be availableS. 8474 193 1 only for alterations or improvements commenced on or after June first, 2 nineteen hundred eighty-six. 3 Notwithstanding the foregoing, the benefits of this section shall be 4 available for any alterations or improvements commenced after August 5 seventh, two thousand eight for such multiple dwellings, buildings or 6 structures and shall be conditioned on the following: (1) the applica- 7 tion for benefits may include any item of work designated in the rules 8 adopted by the department of housing preservation and development as a 9 major capital improvement or asbestos abatement to the extent such 10 asbestos abatement is required by federal, state and local law; and (2) 11 (i) the assessed valuation of such multiple dwelling, building or struc- 12 ture, including land, shall not exceed an average of forty thousand 13 dollars per dwelling unit at the time of the commencement of the alter- 14 ations or improvements; and (ii) the average per room sale price of the 15 dwelling units or the stock allocated to such dwelling units shall have 16 been no greater than thirty-five percent of the maximum mortgage amount 17 for a single family home eligible for purchase by the Federal National 18 Mortgage Association during the three years immediately preceding the 19 commencement of the alterations or improvements; provided that if less 20 than ten percent of the dwelling units or an amount of stock less than 21 the amount allocable to ten percent of such dwelling units was not 22 transferred during such preceding three-year period, eligibility for 23 benefits shall be conditioned upon the multiple dwelling, building, or 24 structure having an assessed valuation per dwelling unit of no more than 25 forty thousand dollars at the time of the commencement of the alteration 26 or improvement. Provided, however, benefits shall also be available 27 under this section for work completed in any such multiple dwelling, 28 building or structure within the first three years of its conversion to 29 cooperative or condominium ownership, as evidenced by the date on which 30 the first closing in a condominium to a bona fide purchaser occurs or in 31 the case of a cooperative, the date on which the shares allocable to a 32 unit are conveyed to a bona fide purchaser, provided, however, that the 33 availability of such benefits for conversions, alterations or improve- 34 ments commenced prior to June first, nineteen hundred eighty-six, except 35 with respect to governmentally assisted projects as defined in regu- 36 lations issued by the department of housing preservation and develop- 37 ment, shall be conditioned upon the completion of such conversions, 38 alterations or improvements within three years after acceptance for 39 filing of the prospectus to establish such cooperative or condominium 40 entity by the attorney general of the state of New York. The maximum 41 amount of tax abatement which may be received in any tax period under 42 this section by any such multiple dwelling, building or structure for 43 any alterations and improvements commenced three or more years after its 44 initial conversion to cooperative or condominium ownership shall be 45 limited to an amount not in excess of two thousand five hundred dollars 46 per dwelling unit of the certified reasonable cost of the alterations or 47 improvements as determined under regulations of the department of hous- 48 ing preservation and development. 49 (3-a) Notwithstanding any contrary provision of paragraph three of 50 this subdivision, the availability of any benefits under this section to 51 any multiple dwelling, building or structure owned and operated by a 52 limited-profit housing company established pursuant to article two of 53 the private housing finance law shall not be conditioned upon the 54 assessed valuation of such multiple dwelling, building or structure, 55 including land, as calculated as an average dollar amount per dwelling 56 unit, at the time of the commencement of the alterations or improve-S. 8474 194 1 ments; provided, however, that such limited-profit housing company (i) 2 is organized and operating as a mutual company, (ii) continues to be 3 organized and operating as a mutual company and to own and operate the 4 multiple dwelling, building or structure receiving such benefits, and 5 (iii) has entered into a binding and irrevocable agreement with the 6 commissioner of housing of the state of New York, the supervising agen- 7 cy, the New York city housing development corporation, or the New York 8 state housing finance agency prohibiting the dissolution or reconsti- 9 tution of such limited-profit housing company pursuant to section thir- 10 ty-five of the private housing finance law for not less than fifteen 11 years from the commencement of such benefits. For the purposes of this 12 paragraph, the terms "mutual company" and "supervising agency" shall 13 have the same meanings as set forth in section two of the private hous- 14 ing finance law. 15 (4) provided that, in the case of any building or structure: (i) in 16 which conversion, alteration or improvement commences on or after Janu- 17 ary first, nineteen hundred eighty-two, and (ii) which is located within 18 an area designated herein as a minimum tax zone, the benefits of this 19 section shall not be applied to abate or reduce the taxes upon the land 20 portion of such real property, which shall continue to be taxed based 21 upon the assessed valuation of the land and the applicable tax rate at 22 the time such taxes are levied; provided, however, that the foregoing 23 limitation with respect to abatement of taxes shall not apply: 24 (A) to any multiple dwelling which is eligible for benefits based upon 25 moderate rehabilitation pursuant to paragraph four of subdivision b of 26 this section, or (B) to any multiple dwelling which is governmentally 27 assisted as such term is defined in regulations to be promulgated by the 28 department of housing preservation and development pursuant to subdivi- 29 sion m of this section. 30 (5) provided that, in the case of any building or structure: (i) in 31 which conversion, alteration or improvement commences on or after Janu- 32 ary first, nineteen hundred eighty-two, and (ii) which is located within 33 an area designated herein as a tax abatement exclusion zone, the bene- 34 fits of this section shall not be applied to abate or reduce the taxes 35 upon such real property, which shall continue to be taxed based upon the 36 assessed valuation of the land and the improvements and the applicable 37 tax rate at the time such taxes are levied; provided, however, that the 38 foregoing limitation shall not deprive such real property of any bene- 39 fits of exemption from taxation of an increase in assessed valuation to 40 which it is entitled pursuant to this section; provided, however, that 41 the foregoing limitation with respect to abatement of taxes shall not 42 apply: 43 (A) to any alteration or improvement designated as a major capital 44 improvement, by the regulations promulgated by the department of housing 45 preservation and development pursuant to subdivision m of this section, 46 provided that the maximum amount of tax abatement which may be received 47 in any tax period under this section by any such multiple dwelling, 48 building or structure for any alterations and improvements shall be 49 limited to an amount not in excess of twenty-five hundred dollars per 50 dwelling unit of the certified reasonable cost of the alterations and 51 improvements as determined under regulations of the department of hous- 52 ing preservation and development, or (B) to any multiple dwelling which 53 is governmentally assisted as such term is defined by said regulations. 54 (8) Limitation on benefits. (a) The provisions of this paragraph shall 55 apply to all conversions, alterations and improvements except the 56 following:S. 8474 195 1 (i) alterations or improvements under paragraphs three, five and six 2 of subdivision b of this section, where carried out: 3 (A) with the substantial assistance of grants, loans or subsidies from 4 any federal, state or local agency or instrumentality, or any not-for- 5 profit philanthropic organization one of whose primary purposes is 6 providing low or moderate incoming housing; or 7 (B) with mortgage insurance by the New York city residential mortgage 8 insurance corporation or the state of New York mortgage agency; or 9 (C) in the areas bounded and described as follows: 10 AREAS IN THE COUNTY OF RICHMOND: 11 PORT RICHMOND--The area bounded by the Kill Van Kull; Jewett Avenue 12 and its prolongation; Forest Avenue; and, the Willow Brook Expressway. 13 NEW BRIGHTON--The area bounded by the Kill Van Kull; Westervelt 14 Avenue; Brook Street; Castleton Avenue; and, North Randall Avenue and 15 its prolongation. 16 STAPLETON--The area bounded by Victory Boulevard; the Upper New York 17 Bay; Vanderbilt Avenue; Van Duzer Street; Cebra Avenue; and, St. Pauls 18 Avenue. 19 FOX HILLS--The area bounded by Vanderbilt Avenue; the Upper New York 20 Bay; the Staten Island Rapid Transit Railway right of way; and, the 21 Staten Island Expressway. 22 (D) pursuant to a program established by the federal housing adminis- 23 tration, federal national mortgage association, federal home loan mort- 24 gage corporation or government national mortgage association for the 25 rehabilitation of existing multiple dwellings for persons of low or 26 moderate income, or a program of mortgage insurance for the rehabili- 27 tation of existing multiple dwellings pursuant to section two hundred 28 twenty-three-f of the national housing act, as amended, or a program of 29 mortgage insurance established by the federal housing administration for 30 the rehabilitation of existing multiple dwellings for persons of low or 31 moderate income; provided that properties receiving benefits under such 32 programs are located in a neighborhood strategy area, as defined, by the 33 United States department of housing and urban development, or in one of 34 the areas listed in subparagraph (C) of this paragraph. 35 (ii) alterations or improvements under paragraph four of subdivision b 36 of this section; and 37 (iii) conversion of residential units qualified for the protection of 38 article seven-C of the multiple dwelling law under paragraph seven of 39 subdivision b of this section. 40 (b) Abatement limitations. (i) The amount of abatement under subdivi- 41 sion c of this section shall not exceed the certified reasonable cost of 42 the conversion, alteration or improvement, as determined under regu- 43 lations of the department of housing preservation and development, 44 provided that the amount of certified reasonable cost eligible for 45 abatement under this section shall not exceed fifteen thousand dollars 46 for a dwelling unit of three and one-half rooms, as determined under the 47 applicable zoning resolution, and a comparable amount for dwelling units 48 of other sizes, determined under regulations of the department of hous- 49 ing preservation and development, and further provided that the amount 50 of certified reasonable cost eligible for abatement under this section 51 may exceed fifteen thousand dollars or such comparable amount per dwell- 52 ing unit, but not more than twenty-five percent above such amount, upon 53 application of the property owner and a determination by the department 54 of housing preservation and development that:S. 8474 196 1 (A) in the case of a conversion under paragraph one or two of subdivi- 2 sion b of this section, the increased cost is necessary to comply with 3 applicable law; 4 (B) in the case of an alteration or improvement under paragraph six of 5 subdivision b of this section, the increased cost is necessary to elimi- 6 nate the unhealthy or dangerous conditions or replace the inadequate and 7 obsolete facilities in a satisfactory manner; 8 (C) in the case of an alteration or improvement under paragraph five 9 of subdivision b of this section, the increased cost is necessary to 10 conserve energy in a satisfactory manner; or 11 (D) in the case of an alteration or improvement under paragraph three 12 of subdivision b of this section, the increased cost, to the extent such 13 cost is not offset by any and all tax credits received as a result of 14 the alteration or improvement, is necessary to comply with any provision 15 of law regulating historic or landmark buildings or structures. 16 (ii) Notwithstanding any other provisions of this subparagraph, and in 17 addition to all other conditions of eligibility for the benefits of this 18 section, the availability of abatements pursuant to subdivision c of 19 this section for any multiple dwellings, buildings or structures not 20 owned as a condominium or cooperative, except for multiple dwellings in 21 which units have been newly created by substantial rehabilitation of 22 vacant buildings or conversions of non-residential buildings, shall be 23 conditioned on the assessed valuation of such multiple dwelling, build- 24 ing or structure, including land, not exceeding an average of thirty 25 thousand dollars per dwelling unit at the time of commencement of the 26 alterations or improvements, provided, however, that such average shall 27 not exceed forty thousand dollars per dwelling unit at the time of 28 commencement of the alteration or improvement for alterations or 29 improvements commenced after the effective date of this paragraph. 30 (c) Exemption limitations. (i) The increase in assessed valuation of 31 the real property resulting from the conversion, alteration or improve- 32 ment under subdivision b of this section, shall be exempt from taxation 33 as provided in this section, only to the extent provided in this subpar- 34 agraph, provided that this subparagraph shall not apply to any conver- 35 sions, alterations or improvements commenced on or after June first, 36 nineteen hundred eighty-six. The amount of the increased assessed valu- 37 ation that is exempt from taxation shall depend on the amount of the 38 total assessed value per dwelling unit calculated by dividing the amount 39 of the total assessed valuation of the property, as determined under the 40 real property tax law, by the number of dwelling units in the building 41 after completion of the conversion, alteration or improvement. The 42 amount of increased assessed valuation that will be exempt from taxation 43 for buildings with total assessed valuation per dwelling unit of less 44 than thirty-eight thousand dollars shall be calculated pursuant to the 45 following formula: (A) any portion of total assessed valuation of the 46 property attributable to the first eighteen thousand dollars of total 47 assessed valuation per dwelling unit, to the extent it represents 48 increased assessed valuation, shall be one hundred percent exempt; (B) 49 any portion of total assessed valuation attributable to the next four 50 thousand dollars of total assessed valuation per dwelling unit, to the 51 extent it represents increased assessed valuation, shall be seventy-five 52 percent exempt; (C) any portion of total assessed valuation attributable 53 to the next four thousand dollars of total assessed valuation per dwell- 54 ing unit, to the extent it represents increased assessed valuation, 55 shall be fifty percent exempt; (D) any portion of total assessed valu- 56 ation attributable to the next four thousand dollars of total assessedS. 8474 197 1 valuation per dwelling unit, to the extent it represents increased 2 assessed valuation, shall be twenty-five percent exempt; and (E) any 3 portion of total assessed valuation attributable to the next eight thou- 4 sand dollars of total assessed valuation per dwelling unit, to the 5 extent it represents increased assessed valuation per dwelling unit, 6 shall be fully taxable. Property with a total assessed valuation per 7 dwelling unit of thirty-eight thousand dollars or more shall not be 8 eligible for a tax exemption under this section. 9 (ii) In calculating the amount of increased assessed valuation that 10 will be exempt from taxation pursuant to the formula in clause (i) of 11 this subparagraph, the full amount of total assessed valuation that does 12 not represent increased assessed valuation shall be applied in such 13 formula prior to the inclusion of any amount of increased assessed valu- 14 ation. 15 (iii) Where the real property is occupied in part for residential 16 purposes and in part for non-residential purposes, the assessed valu- 17 ation of the property shall be appropriately allocated between the resi- 18 dential and non-residential portions. In computing the total assessed 19 valuation per dwelling unit under this subparagraph, only the amount of 20 valuation so allocated to the residential portion shall be considered. 21 (iv) Commencing with the assessment roll for the year nineteen hundred 22 eighty-four, where there has been a change in the level of assessment 23 from the assessment roll of the prior year of properties receiving 24 exemptions under this section, the department of finance may petition 25 the state board to certify the percentage of such change for the 26 purposes of this section. In such petition, the department of finance 27 shall submit such information as the state board shall require in order 28 to certify the percentage of such change. The state board may also make 29 such a certification on its own motion. Upon receipt of such certif- 30 ication from the state board, the department of housing preservation and 31 development may modify the dollar values of total assessed valuation per 32 dwelling unit in clause (i) of this subparagraph to reflect the percent- 33 age change in the level of assessment as shown in such certification. As 34 used in this subparagraph, the term "change in the level of assessment" 35 means the net increase or decrease in the assessed valuation of proper- 36 ties in the assessing unit that received exemptions under this section 37 in the current year as compared to those that received exemptions under 38 this section in the prior year as a result of assessing such properties 39 at a higher or lower ratio of full value. 40 (v) (A) Notwithstanding the provisions of clause (i) of this subpara- 41 graph, the department of housing preservation and development may reduce 42 or remove the limitations on the exemption from taxation provided in 43 such clause with respect to a particular property undergoing alteration 44 or improvement, upon application of the property owner and a determi- 45 nation by such department that the increased benefit will increase the 46 number of dwelling units that will be affordable to persons of low and 47 moderate income, and the increased benefit is necessary to make econom- 48 ically viable units or improvement in the quality of dwelling units that 49 will be affordable to persons of low or moderate income. 50 (B) As used in this subparagraph, the term "persons of low or moderate 51 income" shall mean persons who would qualify for housing subsidies 52 pursuant to section two hundred thirty-five of the national housing act, 53 as amended, at one hundred thirty-five percent of the income limitations 54 provided therein. 55 (C) Upon receiving an application under this subparagraph in proper 56 form, the department of housing preservation and development shall imme-S. 8474 198 1 diately submit it to the community board for the area in which the 2 project is located, which may, within forty-five days of receiving it 3 and after a public hearing, make recommendations to the department as to 4 the application. The department shall act on the application within 5 sixty days of receiving it from the property owner in proper form, but 6 not before expiration of the time for the community board to make its 7 recommendations, unless the board has acted sooner. 8 (d) The department of housing preservation and development may set 9 forth preliminarily the terms of a determination under subparagraph (b) 10 or (c) of this paragraph prior to the commencement of the conversion, 11 alteration or improvement. Any such determination shall take effect 12 after completion of the work in accordance with the terms of the appli- 13 cation made by the property owner. 14 (e) Any determination of the department of housing preservation and 15 development to increase an abatement under subparagraph (b) of this 16 paragraph, or to reduce or remove the exemption limitations under 17 subparagraph (c) of this paragraph shall state the basis for the deter- 18 mination and the data on which the determination was based. Such deter- 19 mination shall be published in the City Record for five consecutive days 20 after the determination is rendered. 21 e. Notwithstanding any provision of this section or any other section 22 of the code to the contrary, where such dwelling is in an area where a 23 plan of redevelopment, program of neighborhood improvement, housing 24 maintenance, demonstration rehabilitation or concentrated code enforce- 25 ment is being carried out, the rents subsequent to conversion, alter- 26 ation or improvement may exceed the maximum amount allowable pursuant to 27 chapter four of title twenty-six of the code of the preceding munici- 28 pality where necessity for the adjustment of such rents is certified by 29 the department of housing preservation and development. 30 f. Subject to the provisions of subdivision d of this section, the 31 department of housing preservation and development shall determine and 32 certify the reasonable cost of any such conversions, alterations or 33 improvements and eligibility for the benefits of this section and for 34 that purpose may adopt rules and regulations, administer oaths to and 35 take the testimony of any person, including but not limited to the owner 36 of such property, may issue subpoenas requiring the attendance of such 37 persons and the production of such bills, books, papers or other docu- 38 ments as it shall deem necessary, may make preliminary estimates of the 39 maximum reasonable cost of such conversions, alterations or improve- 40 ments, may establish maximum allowable costs of specified units, 41 fixtures or work in such conversions, alterations or improvements, and 42 may require the submission of plans and specifications of such conver- 43 sions, alterations or improvements, and may require the submission of 44 plans and specifications of such conversions, alterations or improve- 45 ments before the start thereof. Applications for certification shall 46 include all bills and other documents showing the cost of construction 47 or such other evidence of such cost as shall be satisfactory to the 48 department of housing preservation and development, including, without 49 limitation, certification of cost by a certified public accountant in 50 accordance with generally accepted accounting principles. Applications 51 for certification for a building eligible for benefits pursuant to para- 52 graph three of subdivision d of this section, for alterations or 53 improvements completed more than three years after its conversion to 54 cooperative or condominium ownership, shall include such documentation 55 of the sale price of dwelling units or stock allocated to such dwelling 56 units as may be required by the department of housing preservation andS. 8474 199 1 development, including but not limited to certification of sales price 2 by a certified public accountant. In addition, such applications shall 3 contain the consent of the applicant to allow the department of housing 4 preservation and development access to records, including but not limit- 5 ed to other tax records, as the department may deem appropriate to 6 enforce such conditions of eligibility. Applications for certification 7 filed on or after January first, nineteen hundred seventy-nine pursuant 8 to paragraphs one through six and paragraph eight of subdivision b of 9 this section shall be made after completion and within forty-eight 10 months following the start of construction of the conversion, alteration 11 or improvement, except that applications for certification for alter- 12 ations or improvements undertaken by a housing development fund company 13 organized pursuant to article eleven of the private housing finance law, 14 which are carried out with the substantial assistance of grants, loans 15 or subsidies from any federal, state or local governmental agency or 16 instrumentality or which are carried out in a property transferred from 17 the city of New York or city of Staten Island shall be made after 18 completion and within seventy-two months following the start of the 19 construction of the alteration or improvement. Provided, however, the 20 department of housing preservation and development is empowered to grant 21 an extension of the period for application for any project carried out 22 with the substantial assistance of loans, grants or subsidies from any 23 federal, state or local governmental agency or instrumentality, if such 24 application is made within seventy-two months from commencement of 25 construction. Applications for certification pursuant to paragraph seven 26 of subdivision b of this section shall be filed within twelve months of 27 the date of completion as provided by such subdivision. 28 g. To the end that conversions, alterations or improvements in such 29 property shall interfere as little as practicable with the clearance, 30 rehabilitation or rebuilding of sub-standard and insanitary areas and 31 shall be confined to buildings and structures which are structurally 32 sound and comply with applicable provisions of law, eligibility for the 33 benefits of this section shall be restricted to such buildings and 34 structures which the department of housing preservation and development 35 shall certify: 36 (1) to be structurally sound and to comply with applicable provisions 37 of law, as determined by the department of buildings, which certif- 38 ication shall be evidenced by a certificate describing the property 39 involved; 40 (2) if in an area for which a final plan of clearance, replanning, 41 reconstruction, rehabilitation, or redevelopment has been approved 42 pursuant to article fifteen of the general municipal law, or if in an 43 area for which an urban renewal plan or tests, studies or demonstrations 44 have been approved pursuant to article fifteen of the general municipal 45 law, to be improved in conformity with such replanning, reconstruction, 46 rehabilitation, redevelopment, tests, studies, demonstrations or plan; 47 and 48 (3) if in an area where a program of local neighborhood improvement or 49 housing maintenance is being carried out, to be in conformity with such 50 program. 51 h. Application forms for the benefits of this section shall be filed 52 with the department of finance within the time periods to be established 53 by rules and regulations promulgated by the department of housing pres- 54 ervation and development pursuant to subdivision m of this section. The 55 department of finance shall certify the amount of taxes to be abated, 56 pursuant to the certification of the department of housing preservationS. 8474 200 1 and development as herein provided. No such application shall be 2 accepted unless accompanied by a copy of the certificate of the depart- 3 ment of housing preservation and development both as to reasonable cost 4 and as to eligibility as provided in subdivision f of this section. 5 i. The benefits of this section shall not apply: 6 (1) except as provided in subdivision d of this section, to any exist- 7 ing dwelling which is not subject to the provisions of the emergency 8 housing rent control law or to the city rent and rehabilitation law or 9 to the city rent stabilization law or to the private housing finance law 10 or to any federal law providing for supervision or regulation by the 11 United States department of housing and urban development; 12 (2) to any private dwelling, notwithstanding any other provision of 13 this section, unless it is in an area where a plan of redevelopment or 14 program of neighborhood improvement, housing maintenance, demonstration 15 rehabilitation or concentrated code enforcement is being carried out and 16 the department of housing preservation and development finds that the 17 conversion, alteration or improvement is in conformity with such plan of 18 redevelopment, or program of neighborhood improvement, housing mainte- 19 nance, demonstration rehabilitation or concentrated code enforcement; 20 provided that, however, for the purposes of this section, a class A 21 multiple dwelling may be deemed to include any garden-type maisonette 22 dwelling project consisting of a series of dwelling units which together 23 and in their aggregate were arranged or designed to provide three or 24 more apartments and are provided as a group collectively with all essen- 25 tial services such as, but not limited to, water supply, house sewers 26 and heat, and which are in existence and operated as a unit under single 27 ownership on the date upon which an application for the benefits of this 28 section is received by the department of housing preservation and devel- 29 opment, even though certificates of occupancy were issued for portions 30 thereof as private dwellings; 31 (3) to any property receiving tax exemption or abatement concurrently 32 for rehabilitation or new construction under any other provision of New 33 York state, city of New York or city of Staten Island law with the 34 exception of any alteration or improvement to property receiving such 35 tax exemption or abatement under the provisions of the private housing 36 finance law, provided, however, that the benefits of this section shall 37 not apply to any alterations or improvements done in connection with the 38 refinancing, pursuant to section 223f of the national housing act, as 39 amended, of a housing project organized pursuant to article two and 40 article four of the private housing finance law; 41 (4) to any multiple dwelling for ordinary repairs and normal replace- 42 ment of maintenance items, as provided in paragraph one of subdivision 43 a, hereof in the event that the dwelling thereof is receiving the bene- 44 fits of this section for other ordinary repairs and normal replacement 45 of maintenance items as of the December thirty-first preceding the date 46 of application; 47 (5) to the conversion of any building or structure, or portion there- 48 of: 49 (i) which is located in the city of Staten Island where residential 50 conversion as of right is not permitted by the zoning resolution; 51 (ii) where such benefits are eliminated by regulations to be promul- 52 gated by the department of housing preservation and development pursuant 53 to subdivision m of this section, unless, in the case of a building or 54 structure in Richmond county, construction actually commenced prior to 55 October first, nineteen hundred eighty-three, pursuant to an alteration 56 permit. A copy of any proposed regulation pursuant to this paragraphS. 8474 201 1 shall be transmitted to the city council not less than sixty days prior 2 to its publication in the City Record, pursuant to section eleven 3 hundred five of the charter of the preceding municipality as it existed 4 on the first of January, in the year next succeeding the effective date 5 of this section; and 6 (iii) provided that the provisions of this paragraph shall not apply 7 to conversions pursuant to paragraph seven of subdivision b of this 8 section. 9 (6) to any conversion of or alteration or improvement, commenced on or 10 after July first, nineteen hundred eighty-two, to any class B multiple 11 dwelling or class A multiple dwelling used in whole or in part for 12 single room occupancy, regardless of the status or use of the building 13 after the conversion, alteration or improvement unless such conversion, 14 alteration or improvement is carried out with the substantial assistance 15 of grants, loans or subsidies from any federal, state or local agency or 16 instrumentality. 17 (7) to any conversion of or alteration or improvement, commenced on or 18 after the effective date of this paragraph, to any property classified 19 under the zoning resolution as a non-profit institution with sleeping 20 accommodations, regardless of the status or use of the building after 21 the conversion, alteration or improvement unless such conversion, alter- 22 ation or improvement is carried out with the substantial assistance of 23 grants, loans or subsidies from any federal, state or local agency or 24 instrumentality. 25 j. Notwithstanding the provisions of the multiple dwelling law, or any 26 local law, ordinance, provisions of this code, rule or regulation, any 27 dwelling to which alterations and improvements are made pursuant to this 28 section and which did not require a certificate of occupancy on April 29 second, nineteen hundred forty-five, may be occupied lawfully after such 30 date upon the completion of such alterations and improvements without 31 such a certificate being obtained, provided, however, that such alter- 32 ations and improvements shall have been made in conformity with law and 33 the applicable provisions for fire protection required by articles six 34 and seven of the multiple dwelling law. 35 k. No owner of a dwelling to which the benefits of this section shall 36 be applied, nor any agent, employee, manager or officer of such owner 37 shall directly or indirectly deny to any person because of race, color, 38 creed, national origin, gender, sexual orientation, disability, marital 39 status, age, religion, alienage or citizenship status, or the use of, 40 participation in, or being eligible for a governmentally funded housing 41 assistance program, including, but not limited to, the section 8 housing 42 voucher program and the section 8 housing certificate program, 42 U.S.C. 43 1437 et seq., or the senior citizen rent increase exemption program, 44 pursuant to either chapter seven of title twenty-six of the code of the 45 preceding municipality or section 26-509 of such code, any of the dwell- 46 ing accommodations in such property or any of the privileges or services 47 incident to occupancy therein. The term "disability" as used in this 48 subdivision shall have the meaning set forth in section 8-102 of the 49 code of the preceding municipality. Nothing in this subdivision shall 50 restrict such consideration in the development of housing accommodations 51 for the purpose of providing for the special needs of a particular 52 group. 53 l. Any person who shall knowingly and willfully make any false state- 54 ment as to any material matter in any application for the benefits of 55 this section shall be guilty of an offense punishable by a fine of not 56 more than five hundred dollars or imprisonment for not more than ninetyS. 8474 202 1 days, or both. The commissioner of the department of housing preserva- 2 tion and development may reduce or revoke past and future exemption or 3 tax abatement authorized pursuant to this section if the application for 4 tax exemption or tax abatement contains a false statement or false 5 information as to a material matter or omits a material matter. 6 m. Each agency or department to which functions are assigned by this 7 section may adopt and promulgate rules and regulations for the effectua- 8 tion of the purpose of this section. 9 n. The department of housing preservation and development may require 10 a filing fee in an amount as provided by the rules and regulations 11 promulgated by the department of housing preservation and development 12 pursuant to subdivision m of this section. 13 o. Any tax abatement granted for a period of nine years to a multiple 14 dwelling aided by a loan provided by the city of New York prior to Janu- 15 ary first, nineteen hundred seventy-one, shall upon application therefor 16 be adjusted to extend for a period of up to twenty years, provided that 17 the total abatement before and after such adjustment shall not exceed 18 the total abatement to which such property was initially entitled under 19 this section. 20 p. This section is enacted pursuant to the provisions of section four 21 hundred eighty-nine of the real property tax law and subdivision two of 22 section four hundred five of the private housing finance law. 23 q. No application for the benefits of this section shall be accepted 24 by the department of finance if there are outstanding real estate taxes 25 or water and sewer charges or payments in lieu of taxes which were due 26 and owing as of the last day of the tax period preceding the date of 27 such filing with the department of finance, provided that an applicant 28 aided by article eight or article fifteen of the private housing finance 29 law shall have such application accepted by the department of finance if 30 there are no outstanding real estate taxes or water and sewer charges 31 due and owing as of the last day of the tax period preceding commence- 32 ment of construction. 33 r. In the event that any building or structure receiving the benefits 34 of this section shall become operated exclusively for commercial, hotel 35 or transient hotel use, the tax commission shall withdraw benefits 36 granted herein prospectively. 37 s. The benefits of this section shall not apply to alterations or 38 improvements to existing dwellings in existence on December thirty- 39 first, nineteen hundred seventy-five where (i) such alterations or 40 improvements were completed on or before December thirty-first, nineteen 41 hundred seventy-five, and (ii) no dwelling units thereof on December 42 thirty-first, nineteen hundred seventy-five had rentals which were 43 subject to control by the city rent agency pursuant to chapter four of 44 title twenty-six of the code of the preceding municipality. This subdi- 45 vision shall not apply to alterations or improvements to any building or 46 structure which is benefitted by mortgage insurance pursuant to section 47 two hundred thirteen of the national housing act for applications filed 48 prior to January first, nineteen hundred seventy-nine. 49 t. Notwithstanding any law to the contrary, the owner of any building 50 or structure eligible for any of the benefits of this section which is 51 converted to a class A multiple dwelling, completed, or substantially 52 rehabilitated on or after January one, nineteen hundred seventy-four, 53 shall register the initial rent for each dwelling unit in such building 54 or structure with the New York state division of housing and community 55 renewal. After such registration, the rents of such dwelling units shall 56 be fully subject to regulations under chapter four of title twenty-sixS. 8474 203 1 of the code of the preceding municipality so long as the benefits of 2 this section are in effect or for such longer period as may be provided 3 by law. 4 u. Any tax exemption or tax abatement authorized pursuant to this 5 section may be revoked retroactively by the commissioner of department 6 of housing preservation and development or the department of finance at 7 any time during the authorized term of such tax exemption or tax abate- 8 ment if real estate taxes or water and sewer charges due to the city of 9 New York or city of Staten Island remain unpaid for one year after the 10 same are due and payable. In no event shall revocation be effective 11 prior to the date such taxes or charges were first due and payable. 12 v. Where alterations, improvements, or conversions include or benefit 13 that part of a building which is not occupied for dwelling purposes but 14 is occupied by stores or otherwise used for commercial purposes or 15 community facilities, the increase in assessed valuation and the cost of 16 the alteration shall be apportioned so that the benefits of this title 17 shall not be provided for alterations, improvements or conversions made 18 for other than dwelling purposes. 19 w. If any provision of this section or its application to any person 20 shall be held invalid, the remainder of this section and the applicabil- 21 ity of its provisions to other persons or circumstances shall not be 22 affected thereby. 23 x. Notwithstanding any provision of this section, no benefit pursuant 24 to paragraph four of subdivision b of this section shall be granted for 25 work commenced after January first, nineteen hundred eighty, unless the 26 applicant establishes that the department of housing preservation and 27 development and tenants of such class A multiple dwelling were given 28 notice of (i) the proposed work prior to commencement of such work, (ii) 29 the identity of the owner's representative, and (iii) the tenants' 30 rights under applicable law with respect to such work, provided that, in 31 the case of a loan program supervised by such department, notice to the 32 department shall be unnecessary, and further provided that the depart- 33 ment may itself provide the required notice to the tenants. 34 y. Applicants for benefits under the provisions of this section shall 35 file with the department of finance a form supplied by said department 36 which (i) states an intention to file for benefits under the provisions 37 of this section, (ii) describes the work for which tax benefits will be 38 claimed and (iii) estimates the cost of such work which will be eligible 39 for benefits. Such form shall be filed prior to the commencement of such 40 work. If the scope of such work or the estimated cost thereof changes 41 materially, applicant shall file a revised statement. Applicants who 42 fail to comply with the requirements of this subdivision shall be 43 subject to a penalty not to exceed one hundred percent of the filing fee 44 otherwise payable pursuant to subdivision n of this section. 45 z. A former tenant or former subtenant of premises in a non-residen- 46 tial building which is the subject of an application for an alteration 47 permit for conversion to a class A multiple dwelling, prior to the 48 application for any tax exemption or abatement benefits for such build- 49 ing pursuant to this section, and as a condition to the grant thereof, 50 shall be entitled to a relocation award under the terms and conditions 51 set forth below: 52 (1) As used in this subdivision, the term "eligible tenant" shall mean 53 any former tenant or former subtenant who: 54 (i) leased and used the vacated premises to conduct a manufacturing, 55 warehousing, or wholesaling business for not less than two consecutive 56 years immediately prior to vacating;S. 8474 204 1 (ii) vacated such premises on or after April first, nineteen hundred 2 eighty-one for any reason other than eviction for non-payment of rent; 3 (iii) vacated such premises (a) no earlier than twenty-four months 4 prior to the filing date of an application for such alteration permit 5 and (b) no later than the completion of the conversion as evidenced by 6 the issuance of a permanent certificate of occupancy for a class A 7 multiple dwelling; 8 (iv) either purchased or leased for a term of not less than eighteen 9 months other premises within the city of Staten Island with a floor area 10 not less than one-third of the floor area of the vacated premises; 11 (v) relocated their business to such other premises within one year of 12 vacating the vacated premises; and 13 (vi) paid all commercial rent or occupancy tax for the vacated prem- 14 ises. A subtenant shall be eligible to receive a relocation award 15 notwithstanding any lack of eligibility of its prime tenant; 16 (2) the relocation award shall not exceed the greater of (i) the 17 aggregate base rent which accrued and was paid by the eligible tenant 18 during the final twenty-four months of its occupancy of the vacated 19 premises or (ii) four dollars for each square foot that the eligible 20 tenant occupied in the vacated premises during the final twenty-four 21 months of its occupancy of the vacated premises. As used in this subdi- 22 vision, base rent shall be calculated in the same manner as base rent is 23 calculated for purposes of commercial rent or occupancy tax in the city 24 of Staten Island. However, the aggregate award payable to a prime tenant 25 and/or any subtenants of such prime tenant shall not exceed the amount 26 which would have been payable to the prime tenant had the prime tenant 27 been eligible for an award based on the entire floor area it leased from 28 the owner; and if such limitation applies, the awards shall be prorated 29 based upon the total floor area used and occupied by each eligible 30 tenant; 31 (3) the relocation award shall become due and payable to an eligible 32 tenant at the time the eligible tenant (i) either purchases or leases 33 other premises in accordance with paragraph one of this subdivision, and 34 (ii) certifies eligibility to, and demands payment of, the award from 35 the owner of the vacated building. If the relocation award is not paid 36 within thirty days of such certification and demand, interest shall 37 accrue on the relocation award from the date of the certification and 38 demand at the rate of twenty-four percent per annum; 39 (4) at any time after such certification and demand and prior to the 40 date of the filing of an application for tax exemption or abatement for 41 the vacated building pursuant to this section, an eligible tenant who 42 has not received a relocation award shall have a right to file a notice 43 of claim. Such notice of claim shall be filed with the county clerk of 44 the county and shall verify the claimant's name, its compliance with 45 eligibility requirements, the address of the vacated premises, the floor 46 area it occupied, the name of the prime tenant if the claimant is a 47 subtenant, and all the base rent that accrued and was paid by the claim- 48 ant during the final twenty-four months of its occupancy; 49 (5) a notice of claim, filed in accordance with paragraph four of this 50 subdivision, may be discharged by the filing of an undertaking with the 51 county clerk in an amount equal to the amount claimed and in accordance 52 with the procedures set forth in subdivision four of section nineteen of 53 the lien law, or by the payment into court of such amount in accordance 54 with the procedures set forth in section fifty-five of such law; 55 (6) no tax exemption or abatement shall be granted pursuant to this 56 section unless the department of housing preservation and developmentS. 8474 205 1 receives an affidavit from the applicant for benefits of this section 2 which verifies that: 3 (i) the applicant has caused to be published a notice in a newspaper 4 of general circulation within the city of Staten Island, no later than 5 sixty days prior to filing of an application for tax exemption or abate- 6 ment pursuant to this section, which advises former tenants and subten- 7 ants of their rights pursuant to this subdivision; and 8 (ii) no notice of claim has been filed or all claims have been 9 released by the claimants, or secured in accordance with the provisions 10 of paragraph five of this subdivision, or discharged as an improper 11 claim by court order; 12 (7) the affidavit required pursuant to the provisions of paragraph six 13 of this subdivision shall be considered part of the application for 14 benefits pursuant to this section; 15 (8) if an eligible tenant has duly filed a notice of claim pursuant to 16 paragraph four of this subdivision and did not receive a relocation 17 award as provided herein, it may commence an action against any appli- 18 cant who filed a false affidavit pursuant to paragraph six of this 19 subdivision or any security posted by such applicant pursuant to para- 20 graph five of this subdivision, within three years of such filing. In 21 any action to enforce a claim pursuant to this subdivision, if the court 22 finds that the claimant has wilfully exaggerated the amount of the 23 claim, the claimant may be held liable in damages for an amount not to 24 exceed the proper relocation award. An eligible tenant in whose favor a 25 judgment is entered shall be entitled to costs and reasonable legal fees 26 and disbursements provided that such judgment is in excess of the amount 27 which the applicant or owner offered to pay the eligible tenant; and 28 (9) any lease or other rental agreement provision exempting, waiving, 29 releasing or discharging the obligation to pay a relocation award pursu- 30 ant to this subdivision shall be void as against public policy and whol- 31 ly unenforceable. 32 aa. Harassment. (1) The provisions of this subdivision apply to and 33 are additional requirements for claiming or receiving: 34 (a) any tax exemption under this section; or 35 (b) any tax abatement under this section where the certified reason- 36 able cost per dwelling unit of the conversion, alteration or improvement 37 (including the cost of any conversion, alteration or improvement for 38 which an abatement was approved within four years prior to commencement 39 of the conversion, alteration or improvement) exceeds seven thousand 40 five hundred dollars. 41 (2) The owner of the property shall file with the department of hous- 42 ing preservation and development, not less than thirty days before the 43 commencement of the conversion, alteration or improvement (hereinafter 44 referred to as the "cut-off date"), an affidavit, or, where any informa- 45 tion referred to in paragraph one of this subdivision changes prior to 46 applying for or claiming any benefit under this section, an amending 47 affidavit, setting forth the following information: 48 (a) every owner of record and owner of a substantial interest in the 49 property or entity owning the property or sponsoring the conversion, 50 alteration or improvement; 51 (b) a statement that none of such persons had, within the five years 52 prior to the cut-off date, been found to have harassed or unlawfully 53 evicted tenants by judgment or determination of a court or agency 54 (including a non-governmental agency having appropriate legal jurisdic- 55 tion) under the penal law, any state or local law regulating rents orS. 8474 206 1 any state or local law relating to harassment of tenants or unlawful 2 eviction; and 3 (c) any change in the information required to be set forth. 4 (3) No conversion, alteration or improvement subject to this subdivi- 5 sion shall be eligible for tax exemption or tax abatement under this 6 section where: 7 (a) any affidavit required under this subdivision has not been filed; 8 (b) any such affidavit contains a willful misrepresentation or omis- 9 sion of any material fact; or 10 (c) any person referred to in subparagraph (a) of paragraph two of 11 this subdivision has been found to have harassed or unlawfully evicted 12 tenants as described in that paragraph, until and unless the finding is 13 reversed on appeal, provided that any such finding after the cut-off 14 date shall not apply to or affect any tax abatement or exemption for the 15 conversion, alteration or improvement covered by the affidavit. 16 (4) The department of housing preservation and development and the 17 department of finance shall maintain a list of affidavits as described 18 in paragraph two of this subdivision. Each agency shall review that list 19 with respect to each application or claim for benefits subject to this 20 subdivision. 21 (5) "Substantial interest" as used in subparagraph (a) of paragraph 22 two of this subdivision shall mean ownership of an interest of ten per 23 centum or more in the property or entity owning the property or sponsor- 24 ing the conversion, alteration or improvement. 25 (6) Where the conversion, alteration or improvement is commenced 26 before August first, nineteen hundred eighty-three, the cut-off date 27 shall be as set forth in this subdivision, but no affidavit shall be 28 required to be filed until thirty days after the effective date of this 29 subdivision. 30 bb. Notwithstanding any contrary provision of the private housing 31 finance law, the benefits of this section shall apply to any limited 32 profit housing company as provided in this section. Such multiple dwell- 33 ing, building or structure shall be eligible for benefits where at least 34 one building-wide improvement or alteration is part of the application 35 for benefits. Furthermore, to the extent that such alterations or 36 improvements are financed with grants, loans or subsidies from any 37 federal, state, or local agency or instrumentality, such multiple dwell- 38 ing, building or structure shall be eligible for benefits only if the 39 limited profit housing company has entered into a binding and irrev- 40 ocable agreement with the commissioner of housing of the state of New 41 York, the supervising agency, as such term is defined in section two of 42 the private housing finance law, the New York city housing development 43 corporation, or the New York state housing finance agency prohibiting 44 the dissolution or reconstitution of such limited profit housing company 45 pursuant to section thirty-five of the private housing finance law for 46 not less than fifteen years from the commencement of benefits. The 47 abatement of taxes on such property, including the land, shall not be an 48 amount greater than ninety per centum of the certified reasonable cost 49 of such alterations or improvements, as determined under regulations of 50 the department of housing preservation and development, nor greater than 51 eight and one-third percent of such certified reasonable cost in any 52 twelve-month period, nor be effective for more than twenty years. The 53 annual abatement of taxes in any twelve-month period shall in no event 54 exceed fifty percent of the amount of taxes payable in such twelve-month 55 period pursuant to the applicable exemption granted pursuant to article 56 two of the private housing finance law or other applicable laws or fiftyS. 8474 207 1 percent of payments required to be made in lieu of taxes in such twelve- 2 month period. Provided, however, the annual abatement of taxes for 3 alterations or improvements commenced prior to June first, nineteen 4 hundred eighty-six may not be applied to reduce the amount of taxes 5 payable or the amount of payments required to be made in lieu of taxes 6 in any twelve-month period to an amount less than the minimum amount of 7 taxes required to be paid pursuant to section thirty-three of the 8 private housing finance law. 9 cc. The commissioner of the department of housing preservation and 10 development and the commissioner of the department of finance shall 11 prepare an annual report which shall be submitted to the Mayor and the 12 council on or before the first of July next succeeding the year to which 13 the report pertains, regarding the exemptions and abatements granted 14 pursuant to this section and shall include, but not be limited to the 15 following information: (i) the amount of real property tax that would 16 have been paid in the aggregate by the owners of real property granted 17 an exemption or abatement if the property were fully taxable and the 18 amount of tax actually paid in the aggregate by such owners, (ii) the 19 geographic distribution of exemptions and abatements granted pursuant to 20 this section, and (iii) a distribution by type of eligible categories as 21 delineated in paragraphs one through nine of subdivision b of this 22 section. 23 dd. Partial waiver of rent adjustments attributable to major capital 24 improvements. (1) The provisions of this subdivision apply to and are 25 additional requirements for claiming or receiving any tax abatement 26 under this section, except as provided in paragraphs three and four of 27 this subdivision. 28 (2) The owner of the property shall file with the department of hous- 29 ing preservation and development, on the date any application for bene- 30 fits is made, a declaration stating that in consideration of any tax 31 abatement benefits which may be received pursuant to such application 32 for alterations or improvements constituting a major capital improve- 33 ment, such owner agrees to waive the collection of a portion of the 34 total annual amount of any rent adjustment attributable to such major 35 capital improvement which may be granted by the New York state division 36 of housing and community renewal pursuant to the rent stabilization code 37 or its successor statute for the city of Staten Island equal to one-half 38 of the total annual amount of the tax abatement benefits which the prop- 39 erty receives pursuant to such application with respect to such alter- 40 ations or improvements. Such waiver shall commence on the date of the 41 first collection of such rent adjustment, provided that, in the event 42 that such tax abatement benefits were received prior to such first 43 collection, the amount waived shall be increased to account for such tax 44 abatement benefits so received. Following the expiration of a tax abate- 45 ment for alterations or improvements constituting a major capital 46 improvement for which a rent adjustment has been granted by such divi- 47 sion, the owner may collect the full amount of annual rent permitted 48 pursuant to such rent adjustment. A copy of such declaration shall be 49 filed simultaneously with the New York state division of housing and 50 community renewal. Such declaration shall be binding upon such owner, 51 and his or her successors and assigns. 52 (3) The provisions of this subdivision shall not apply to substantial 53 rehabilitation of buildings vacant when alterations or improvements are 54 commenced or to buildings rehabilitated with the substantial assistance 55 of city, state or federal subsidies.S. 8474 208 1 (4) The provisions of this subdivision shall apply only to alterations 2 and improvements commenced after the effective date of such subdivision. 3 § 11-244 Tax exemption and abatement for rehabilitated buildings. a. 4 As used in this section, the following terms shall have the following 5 meanings: 6 1. "Eligible real property" shall mean: 7 (i) any class B multiple dwelling; 8 (ii) any class A multiple dwelling used for single room occupancy 9 pursuant to section two hundred forty-eight of the multiple dwelling law 10 which contains no more than twenty-five percent class A dwelling units 11 which contain lawful sanitary and kitchen facilities within the dwelling 12 unit, provided that in the case of a multiple dwelling containing ten 13 dwelling units or less, up to forty percent of the dwelling units may be 14 class A units; and 15 (iii) not-for-profit institutions with sleeping accommodations. 16 Notwithstanding the foregoing, eligible real property shall not 17 include college and school dormitories, club houses, or residences whose 18 occupancy is restricted to an institutional use such as housing intended 19 for use primarily or exclusively by the employees of a single company or 20 institution. A building is an eligible real property only if it quali- 21 fies as such after completion of the eligible improvements, but need not 22 have been an eligible real property prior to the eligible improvements. 23 2. "Eligible improvements" shall be limited to the following catego- 24 ries of work, provided further that such work shall be in conformity 25 with all applicable laws: 26 (i) replacement of a boiler or burner or installation of an entire new 27 heating system; 28 (ii) replacement or upgrading of electrical system; 29 (iii) replacement or upgrading of elevators; 30 (iv) installation or replacement or upgrading of the plumbing system, 31 including water main and risers; 32 (v) replacement or installation of walls, ceilings, floors or trim 33 where necessary; 34 (vi) replacement or upgrading of doors, installation of security 35 devices and systems; 36 (vii) installation, replacement or upgrading of smoke detectors, fire 37 alarms, fire escapes or sprinkler systems; 38 (viii) replacement or repair of roof, leaders and gutters; 39 (ix) replacement or installation of bathroom facilities; 40 (x) installation of wall and pipe insulation; 41 (xi) replacement or upgrading of street connections for water or sewer 42 services; 43 (xii) replacement or installation of windows, or installation of 44 window gates or guards; 45 (xiii) installation or replacement of boiler smoke stack; 46 (xiv) pointing, waterproofing and cleaning of entire building exterior 47 surface; 48 (xv) improvements designed to conserve the use of fuel, electricity or 49 other energy sources; 50 (xvi) work necessary to effect compliance with all applicable laws 51 including, but not limited to the multiple dwelling law, the city hous- 52 ing maintenance code or its successor statute for the city of Staten 53 Island and the building code; and 54 (xvii) improvements unique to congregate living facilities, as defined 55 by rules and regulations promulgated by the department of housing pres- 56 ervation and development.S. 8474 209 1 3. "Existing dwelling" shall mean any eligible real property in exist- 2 ence prior to the commencement of eligible improvements, for which tax 3 exemption and abatement is claimed under the terms of this section and 4 for which a valuation appears on the annual record of assessed valuation 5 of the city for the fiscal year immediately preceding the commencement 6 of construction of such eligible improvements. 7 4. "Commencement of eligible improvement" shall mean the beginning of 8 any physical operation undertaken for the purpose of making eligible 9 improvements to eligible real property. 10 5. "Completion of eligible improvement" shall mean the conclusion or 11 termination of any physical operation referred to in the preceding para- 12 graph, to an extent or degree which renders an eligible property capable 13 of use for the purpose for which the improvements were intended. 14 6. "Permanent resident" shall mean a person who has resided in eligi- 15 ble real property for six months or more; has a lease or other rental 16 agreement for a term of six or more months; or has requested a lease 17 pursuant to the provisions of the rent stabilization code or its succes- 18 sor statute for the city of Staten Island for housing accommodations 19 located in hotels. 20 b. Any increase in the assessed valuation of eligible real property 21 shall be exempt from taxation for local purposes for a period of thir- 22 ty-two years to the extent such increase results from eligible improve- 23 ments, provided that: 24 (i) the eligible improvements are commenced after July first, nineteen 25 hundred eighty, and prior to the thirty-first of December in the year 26 next succeeding the effective date of this section, and are completed 27 within thirty-six months from commencement; 28 (ii) the department of housing preservation and development determines 29 and certifies the cost, qualification and eligibility of any improvement 30 for benefits of this section; 31 (iii) the exemption may commence no sooner than the July first follow- 32 ing the filing with the department of finance of a certification of 33 eligibility issued by the department of housing preservation and devel- 34 opment for benefits of this section; provided, however, that if the 35 rehabilitation is carried out with substantial government assistance as 36 part of a program for affordable housing the exemption may commence no 37 sooner than the July first following the commencement of construction of 38 eligible improvements; 39 (iv) immediately prior to, and during, the construction of eligible 40 improvements, not less than fifty percent of the dwelling units in such 41 eligible real property are occupied by permanent residents; provided 42 that such occupancy requirement shall not apply to a vacant, govern- 43 mentally owned multiple dwelling which had been vacant for not less than 44 two years prior to the commencement of construction of eligible improve- 45 ments, nor to a vacant multiple dwelling where the eligible improvements 46 are carried out with the substantial assistance of grants, loans or 47 subsidies from any federal, state or local agency or instrumentality or 48 any not-for-profit philanthropic organization one of whose primary 49 purposes is providing low or moderate income housing; 50 (v) no outstanding real estate taxes, water and sewer charges, 51 payments in lieu of taxes or other municipal charges are due and owing 52 as of the tax quarter immediately preceding the commencement of tax 53 exemption pursuant to this section; provided that an applicant aided 54 pursuant to the provisions of the private housing finance law shall have 55 such application accepted by the tax commission if there are no 56 outstanding real estate, water and sewer taxes due and owing as of theS. 8474 210 1 last day of the tax quarter preceding commencement of construction of 2 eligible improvements; 3 (vi) except in the case of eligible real property which is receiving 4 or has received assistance pursuant to a governmental rent subsidy 5 program or which is owned by a not-for-profit corporation or by a wholly 6 owned subsidiary of a not-for-profit corporation and which is receiving 7 or has received assistance pursuant to a governmental loan subsidy 8 program, as defined by the rules and regulations promulgated by the 9 department of housing preservation and development, for the construction 10 of eligible improvements, the initial rent after completion of eligible 11 improvements, for ninety percent of the total number of dwelling units 12 occupied by permanent residents in a class A or class B multiple dwell- 13 ing other than apartments shall not exceed the greater of either the 14 amount of any governmental rental assistance received by an occupant or 15 seventy-five percent of the rent which is permitted to be charged for 16 zero-bedroom units on the moderate rehabilitation fair market rent sche- 17 dule as determined by the United States department of housing and urban 18 development for the housing assistance payments program under section 19 eight of the national housing act; 20 (vii) no person residing in eligible real property prior to or during 21 the construction of eligible improvements shall be required by the owner 22 to vacate the eligible real property solely in order to perform the 23 eligible improvements or any related work. 24 c. Eligible real property which qualifies for exemption from taxation 25 for local purposes for eligible improvements shall also be eligible for 26 an annual abatement of real property taxes in an amount not to exceed 27 twelve and one-half percent of the reasonable cost of eligible improve- 28 ments certified by the department of housing preservation and develop- 29 ment, which abatement may commence on the first day of the first tax 30 quarter following the filing with the department of finance of a certif- 31 ication of eligibility issued by the department of housing preservation 32 and development for benefits of this section; provided, however, that if 33 the rehabilitation is carried out with substantial government assistance 34 as part of a program for affordable housing the abatement may commence 35 no sooner than the first day of the first tax quarter following the 36 commencement of construction of eligible improvements, provided further 37 that: 38 (i) the annual abatement shall not exceed the amount of taxes other- 39 wise payable in the corresponding year; 40 (ii) the period during which such abatement is effective shall not 41 exceed twenty consecutive years from the date such abatement first 42 becomes effective; and 43 (iii) the total abatement shall not exceed the lesser of one hundred 44 fifty percent of the certified reasonable costs of eligible improvements 45 or the actual costs as determined by the department of housing preserva- 46 tion and development pursuant to its rules and regulations. 47 d. During the period of tax exemption or abatement pursuant to this 48 section, each of the following shall be a condition precedent to the 49 continuation of the exemption and/or abatement: 50 (i) compliance with all applicable provisions of law, including, but 51 not limited to the multiple dwelling law, the building code and the 52 housing maintenance code of the preceding municipality; 53 (ii) all dwelling units, except owner occupied units, shall be subject 54 to the emergency housing rent control law or the local housing rent 55 control act or the tenant protection act of nineteen hundred seventy- 56 four, or any local laws enacted pursuant thereto or the rent stabiliza-S. 8474 211 1 tion law of nineteen hundred sixty-nine or their successor statutes for 2 the city of Staten Island; provided, however, that the department of 3 housing preservation and development may exempt from this requirement 4 dwelling units that are not occupied by permanent residents in those 5 buildings owned by a not-for-profit corporation and which are improved 6 with the aid of a rehabilitation loan from any government agency or 7 instrumentality or operated pursuant to a contract with a governmental 8 entity. 9 (iii) eligible real property receiving tax exemption or tax abatement 10 benefits under this section shall not receive tax exemption or tax 11 abatement for new construction or rehabilitation under any other 12 provision of law; 13 (iv) the eligible improvements shall not be used as the basis for any 14 application for rent increases and the owner shall file a statement to 15 such effect with the department of housing preservation and development 16 and with any appropriate rent regulatory agency, provided, however, that 17 rents of units improved with the aid of a rehabilitation loan from any 18 governmental agency or instrumentality may within the limitations estab- 19 lished by this section be increased pursuant to the rules and regu- 20 lations of the department of housing preservation and development; and 21 (v) a minimum of seventy-five percent of the dwelling units shall be 22 rental units occupied by permanent residents; provided, however that the 23 department of housing preservation and development may exempt from this 24 requirement those buildings improved with the aid of a rehabilitation 25 loan from any governmental agency or instrumentality or operated pursu- 26 ant to a contract with a governmental entity. 27 e. During the period of tax exemption or abatement pursuant to this 28 section, the owner shall submit an annual certification to the depart- 29 ment of housing preservation and development in the form prescribed by 30 such department. Failure to submit such certification in any given year 31 may result in the revocation of benefits. The certification shall 32 include the following: 33 (i) the total number of dwelling units within the eligible real prop- 34 erty and the total number of dwelling units occupied by permanent resi- 35 dents; 36 (ii) the number of dwelling units subject to the provisions of the 37 emergency housing rent control act, the emergency tenant protection act 38 of nineteen seventy-four or any local laws enacted pursuant thereto; the 39 emergency housing rent control law or the rent stabilization law of 40 nineteen hundred sixty-nine or their successor statutes applicable to 41 the city of Staten Island; and 42 (iii) all such other information required by the department of housing 43 preservation and development. 44 f. Any tax exemption or tax abatement authorized pursuant to this 45 section may be revoked or reduced by the department of housing preserva- 46 tion and development or by the department of finance at any time during 47 the authorized term of such tax exemption or tax abatement upon a find- 48 ing by either department that: 49 (i) the application for benefits pursuant to this section or the annu- 50 al certification required hereunder contains a false statement or false 51 information as to a material matter, or omits a material matter, in 52 which case the revocation or reduction may be retroactive to the 53 commencement of benefits pursuant to this section; 54 (ii) real estate taxes, water, sewer or other municipal charges, or 55 payments in lieu of said taxes or charges are, and have remained, due 56 and owing for more than one year, in which case the revocation orS. 8474 212 1 reduction may be retroactive to the commencement of benefits pursuant to 2 this section, provided that in no event shall revocation be effective 3 prior to the date such taxes or charges were first due and payable; or 4 (iii) the eligible real property fails to comply with one or more of 5 the provisions or requirements of this section. 6 g. Application forms for the benefits of this section shall be filed 7 with the tax commission within the time periods to be established by 8 rules and regulations promulgated by the department of housing preserva- 9 tion and development, pursuant to subdivision i of this section. The tax 10 commission shall certify to the department of finance the amount of 11 taxes to be abated, pursuant to the certification of the department of 12 housing preservation and development as herein provided. No such appli- 13 cation shall be accepted unless accompanied by a copy of the certificate 14 of the department of housing preservation and development both as to 15 reasonable cost and as to eligibility as provided in subdivision b of 16 this section. 17 h. No owner of a dwelling to which the benefits of this section apply, 18 nor any agent, employee, manager or officer of such owner shall directly 19 or indirectly deny to any person because of race, color, creed, national 20 origin, sex, disability, marital status, age, religion, military status, 21 gender identity or expression or sexual orientation any of the dwelling 22 accommodations in such property or any of the privileges or services 23 incident to occupancy therein. The term "disability" as used in this 24 subdivision shall mean a physical, mental or medical impairment result- 25 ing from anatomical, physiological, or neurological conditions which 26 prevents the exercise of a normal bodily function or is demonstrable by 27 medically accepted clinical or laboratory diagnostic techniques. Nothing 28 in this subdivision shall restrict such consideration in the availabili- 29 ty of housing accommodations for the purpose of providing for the 30 special needs of a particular group. 31 i. The department of housing preservation and development shall deter- 32 mine and certify the reasonable cost of any such conversions, alter- 33 ations or improvements and eligibility for the benefits of this section 34 and for that purpose may adopt rules and regulations, administer oaths 35 to and take the testimony of any person, including, but not limited to 36 the owner of such property, may issue subpoenas requiring the attendance 37 of such persons and the production of such bills, books, papers or other 38 documents as it shall deem necessary, may make preliminary estimates of 39 the maximum reasonable cost of such conversions, alterations or improve- 40 ments, may establish maximum allowable costs of specified units, 41 fixtures or work in such conversions, alterations or improvements, and 42 may require the submission of plans and specifications of such conver- 43 sions, alterations or improvements before the start thereof. Applica- 44 tions for certification shall include all bills and other documents 45 showing the cost of construction or such other evidence of such cost as 46 shall be satisfactory to the department of housing preservation and 47 development, including, without limitation, certification of cost by a 48 certified public accountant in accordance with generally accepted 49 accounting principles. Each additional agency to which functions are 50 assigned by this section may adopt and promulgate rules and regulations 51 for the effectuation of the purposes of this section. 52 j. The department of housing preservation and development may require 53 a filing fee in an amount as provided by the rules and regulations 54 promulgated by the department of housing preservation and development 55 pursuant to subdivision i of this section.S. 8474 213 1 k. Any person who shall knowingly and wilfully make any false state- 2 ments as to any material matter in any application for the benefits of 3 this section shall be guilty of an offense punishable by a fine of not 4 more than five hundred dollars or imprisonment for not more than ninety 5 days, or both. 6 l. If any provision of this section or its application to any person 7 shall be held invalid, the remainder of this section and the applicabil- 8 ity of its provisions to other persons or circumstances shall not be 9 affected thereby. 10 § 11-245.1 Site eligibility limitations on benefits pursuant to 11 section four hundred twenty-one-a of the real property tax law. 12 (a) Where eligibility for benefits under section four hundred twenty- 13 one-a of the real property tax law is sought for any construction 14 commenced on or after November twenty-ninth, nineteen hundred eighty- 15 five and before May twelfth, two thousand on the basis that such 16 construction shall take place on land which, on the date thirty-six 17 months prior to the commencement of such construction, was improved with 18 a nonresidential building or buildings and was under-utilized, the 19 under-utilization of the land must have been such that each building or 20 buildings: 21 (1) contained no more than the permissible floor area ratio for 22 nonresidential buildings in the zoning district in question and a 23 floor area ratio which was twenty percent or less of the maximum 24 floor area ratio for residential buildings, 25 (2) had an assessed valuation equal to or less than twenty percent 26 of the assessed valuation of the land on which the building or 27 buildings were situated, or 28 (3) by reason of the configuration of the building, or substantial 29 structural defects not brought about by deferred maintenance prac- 30 tices or intentional conduct, could no longer be functionally or 31 economically utilized in the capacity in which it was formerly 32 utilized. 33 For purposes of this subdivision and subdivisions (a-1) through (a-4) 34 of this section, construction shall be deemed to have commenced on the 35 date immediately following the issuance by the department of buildings 36 of a new building permit for an entire new building (based upon archi- 37 tectural, plumbing and structural plans approved by such department) on 38 which the excavation and the construction of initial footings and foun- 39 dations commences in good faith, on vacant land and for the entire 40 project site, as certified by an architect or professional engineer 41 licensed in the state, provided that installation of footings and foun- 42 dations is similarly certified by such architect or engineer to have 43 been completed without undue delay. 44 (a-1) Except as provided in subdivision (a-2) of this section, where 45 eligibility for benefits under section four hundred twenty-one-a of the 46 real property tax law is sought for any construction commenced on or 47 after May twelfth, two thousand and before the effective date of subdi- 48 visions (a-3) and (a-4) of this section on the basis that such 49 construction shall take place on land which, on the date thirty-six 50 months prior to the commencement of such construction, was improved with 51 a nonresidential building or buildings and was under-utilized, the 52 under-utilization of the land must have been such that each building or 53 buildings: 54 (1) contained no more than the permissible floor area ratio for 55 nonresidential buildings in the zoning district in question and aS. 8474 214 1 floor area ratio which was seventy-five percent or less of the maxi- 2 mum floor area ratio for residential buildings, 3 (2) had an assessed valuation equal to or less than seventy-five 4 percent of the assessed valuation of the land on which the building 5 or buildings were situated, or 6 (3) by reason of the configuration of the building, or substantial 7 structural defects not brought about by deferred maintenance prac- 8 tices or intentional conduct, could no longer be functionally or 9 economically utilized in the capacity in which it was formerly 10 utilized. 11 For purposes of this subdivision, construction shall be deemed to have 12 commenced as provided in subdivision (a) of this section. 13 (a-2) Where eligibility for benefits under section four hundred twen- 14 ty-one-a of the real property tax law is sought for any construction on 15 any tax lot now existing or hereafter created which is located south of 16 or adjacent to either side of one hundred tenth street in the borough of 17 Manhattan which construction commenced on or after May twelfth, two 18 thousand and before the effective date of subdivisions (a-3) and (a-4) 19 of this section on the basis that such construction shall take place on 20 land which, on the date thirty-six months prior to the commencement of 21 such construction, was improved with a nonresidential building or build- 22 ings and was under-utilized, the under-utilization of the land must have 23 been such that each building or buildings: 24 (1) contained no more than the permissible floor area ratio for 25 nonresidential buildings in the zoning district in question and a 26 floor area ratio which was fifty percent or less of the maximum 27 floor area ratio for residential buildings, 28 (2) had an assessed valuation equal to or less than fifty percent of 29 the assessed valuation of the land on which the building or build- 30 ings were situated, or 31 (3) by reason of the configuration of the building, or substantial 32 structural defects not brought about by deferred maintenance prac- 33 tices or intentional conduct, could no longer be functionally or 34 economically utilized in the capacity in which it was formerly 35 utilized. 36 For purposes of this subdivision, construction shall be deemed to have 37 commenced as provided in subdivision (a) of this section. 38 (a-3) Except as provided in subdivision (a-4) of this section, where 39 eligibility for benefits under section four hundred twenty-one-a of the 40 real property tax law is sought for any construction commenced on or 41 after the effective date of this subdivision on the basis that such 42 construction shall take place on land which, on the date thirty-six 43 months prior to the commencement of such construction, was improved with 44 a nonresidential building or buildings and was under-utilized, the 45 under-utilization of the land must have been such that each building or 46 buildings: 47 (1) contained no more than the permissible floor area ratio for 48 nonresidential buildings in the zoning district in question and 49 either (i) had a floor area ratio which was seventy-five percent or 50 less of the maximum floor area ratio for residential buildings in 51 such zoning district, or (ii) if the land was not zoned to permit 52 residential use on the date thirty-six months prior to the commence- 53 ment of construction, had a floor area ratio which was seventy-five 54 percent or less of the floor area ratio of the residential building 55 which replaces such non-residential building,S. 8474 215 1 (2) had an assessed valuation equal to or less than seventy-five 2 percent of the assessed valuation of the land on which the building 3 or buildings were situated, or 4 (3) by reason of the configuration of the building, or substantial 5 structural defects not brought about by deferred maintenance prac- 6 tices or intentional conduct, could no longer be functionally or 7 economically utilized in the capacity in which it was formerly 8 utilized. 9 For purposes of this subdivision, construction shall be deemed to have 10 commenced as provided in subdivision (a) of this section. 11 (a-4) Where eligibility for benefits under section four hundred twen- 12 ty-one-a of the real property tax law is sought for any construction on 13 any tax lot now existing or hereafter created which is located south of 14 or adjacent to either side of one hundred tenth street in the borough of 15 Manhattan which construction commenced on or after the effective date of 16 this subdivision on the basis that such construction shall take place on 17 land which, on the date thirty-six months prior to the commencement of 18 such construction, was improved with a nonresidential building or build- 19 ings and was under-utilized, the under-utilization of the land must have 20 been such that each building or buildings: 21 (1) contained no more than the permissible floor area ratio for 22 nonresidential buildings in the zoning district in question and 23 either (i) had a floor area ratio which was fifty percent or less of 24 the maximum floor area ratio for residential buildings in such 25 zoning district, or (ii) if the land was not zoned to permit resi- 26 dential use on the date thirty-six months prior to the commencement 27 of construction, had a floor area ratio which was fifty percent or 28 less of the floor area ratio of the residential building which 29 replaces such non-residential building, 30 (2) had an assessed valuation equal to or less than fifty percent of 31 the assessed valuation of the land on which the building or build- 32 ings were situated, or 33 (3) by reason of the configuration of the building, or substantial 34 structural defects not brought about by deferred maintenance prac- 35 tices or intentional conduct, could no longer be functionally or 36 economically utilized in the capacity in which it was formerly 37 utilized. 38 For purposes of this subdivision, construction shall be deemed to have 39 commenced as provided in subdivision (a) of this section. 40 (b) The department of housing preservation and development may promul- 41 gate rules and regulations for the effectuation of the purposes of this 42 section. 43 (c) The limitations on benefits contained in this section shall be in 44 addition to those contained in any other law or regulation. 45 § 11-245.1-a Boundary review commission. (a) There shall be estab- 46 lished a boundary review commission consisting of eleven members, 47 including the commissioner of finance, the commissioner of housing pres- 48 ervation and development, the commissioner of buildings, the chairperson 49 of the department of city planning, the director of the office of 50 management and budget, the executive director of the board of standards 51 and appeals and five members chosen by the speaker of the council. The 52 appointees of the speaker of the council shall serve at the pleasure of 53 the speaker. The commission shall elect a chairperson from among its 54 members. 55 (b) The boundary review commission shall undertake a biennial review 56 of the tax benefit program established pursuant to section four hundredS. 8474 216 1 twenty-one-a of the real property tax law to determine whether the areas 2 for which the tax benefits are restricted pursuant to those provisions 3 of the administrative code which relate to such program should be 4 revised in any manner. 5 (c) In conducting a review to determine whether geographic exclusion 6 zones restricting benefits provided pursuant to section four hundred 7 twenty-one-a of the real property tax law should be revised, the commis- 8 sion shall review measurers of housing activity and housing market 9 conditions throughout the city including (i) the amount of new develop- 10 ment; (ii) values in land sales, residential sales prices and rents; 11 (iii) trends in land sales, residential sales prices and rents and other 12 development trend data including land use trends, lot consolidation and 13 board of standards and appeals actions; (iv) development potential; (v) 14 relationship between volume of potential development and existing hous- 15 ing; and (vi) financial feasibility of development with and without the 16 benefits provided pursuant to section four hundred twenty-one-a of the 17 real property tax law. 18 (d) On or before December first of each even numbered year following 19 the effective date of this section, such commission shall submit a 20 report to the speaker of the council and the mayor on its deliberations 21 and shall include recommendations for revisions to such boundaries that 22 it deems appropriate or why no revisions were recommended, including the 23 methodology by which it applied the criteria in subdivision (c) of this 24 section to arrive at its recommendations, and all data used to make such 25 recommendations. Any recommendations shall be consistent with the 26 provisions of section four hundred twenty-one-a of the real property tax 27 law. 28 § 11-245.1-b Limitations on benefits pursuant to section four hundred 29 twenty-one-a of the real property tax law. (a) As used in this section, 30 the following terms shall have the following meanings: 31 (1) "Residential tax lot" shall mean a tax lot that contains dwelling 32 units. 33 (2) "Non-residential tax lot" shall mean a tax lot that does not 34 contain any dwelling units. 35 (3) "Annual limit" shall mean sixty-five thousand dollars, which 36 amount shall be increased by three percent, compounded annually, on each 37 taxable status date following the first anniversary of the effective 38 date of the local law that added this section. 39 (4) "Certificate of occupancy" shall mean the first certificate of 40 occupancy covering all residential areas of the building on or contain- 41 ing a tax lot. 42 (5) "Unit count" shall mean (i) in the case of a residential tax lot 43 that does not contain any commercial, community facility or accessory 44 use space, the number of dwelling units in such tax lot, and (ii) in the 45 case of a residential tax lot that contains commercial, community facil- 46 ity or accessory use space, the number of dwelling units in such tax lot 47 plus one. 48 (6) "Exemption cap" shall mean the unit count multiplied by the annual 49 limit. 50 (b) The provisions of this section shall apply only to projects that 51 commence construction on or after the effective date of this section. 52 (c) No benefits under section four hundred twenty-one-a of the real 53 property tax law shall be conferred for any multiple dwelling containing 54 fewer than four dwelling units, as set forth in the certificate of occu- 55 pancy, unless the construction of such multiple dwelling is carried out 56 with substantial assistance of grants, loans or subsidies from anyS. 8474 217 1 federal, state or local agency or instrumentality where such assistance 2 is provided pursuant to a program for the development of affordable 3 housing. 4 (d) The portion of the assessed valuation of any residential tax lot 5 exempted from real property taxation in any year pursuant to section 6 four hundred twenty-one-a of the real property tax law shall not exceed 7 the exemption cap on or after the first taxable status date after the 8 building on or containing such tax lot receives its certificate of occu- 9 pancy unless, in accordance with a regulatory agreement with or approved 10 by the department of housing preservation and development that is appli- 11 cable to such tax lot, (1) the construction of such building is carried 12 out with substantial assistance of grants, loans or subsidies from any 13 federal, state or local agency or instrumentality and such assistance is 14 provided pursuant to a program for the development of affordable hous- 15 ing, or (2) the department of housing preservation and development has 16 imposed a requirement or has certified that twenty per cent of the units 17 be restricted income units. All such restricted income units must be 18 situated onsite. For the purposes of this section, "onsite" shall mean 19 that restricted income units shall be situated within the building or 20 buildings for which benefits pursuant to section four hundred twenty- 21 one-a of the real property tax law are being granted. A dwelling unit 22 that is located in two or more tax lots shall be ineligible to receive 23 any benefits under section four hundred twenty-one-a of the real proper- 24 ty tax law. The portion of the assessed valuation of all non-residential 25 tax lots in the building on or containing such non-residential tax lots 26 exempted from real property taxation in any year pursuant to section 27 four hundred twenty-one-a of the real property tax law shall not exceed 28 a cumulative total equal to the annual limit on or after the first taxa- 29 ble status date after the building on or containing such non-residential 30 tax lots receives its certificate of occupancy. 31 (e) A new multiple dwelling that is situated in (1) a neighborhood 32 preservation program area as determined by the department of housing 33 preservation and development as of June first, nineteen hundred eighty- 34 five, (2) a neighborhood preservation area as determined by the New York 35 city planning commission as of June first, nineteen hundred eighty-five, 36 (3) an area that was eligible for mortgage insurance provided by the 37 rehabilitation mortgage insurance corporation as of May first, nineteen 38 hundred ninety-two, or (4) an area receiving funding for a neighborhood 39 preservation project pursuant to the neighborhood reinvestment corpo- 40 ration act (42 U.S.C. §§ 8101 et seq.) as of June first, nineteen 41 hundred eighty-five, shall only be eligible for the benefits available 42 pursuant to subparagraph (iii) of paragraph (a) of subdivision two of 43 section four hundred twenty-one-a of the real property tax law if: 44 a. the construction is carried out with substantial assistance of 45 grants, loans or subsidies from any federal, state or local agency or 46 instrumentality and such assistance is provided pursuant to a program 47 for the development of affordable housing, or 48 b. the department of housing preservation and development has imposed 49 a requirement or has certified that twenty percent of the units be 50 restricted income units. All such restricted income units must be situ- 51 ated onsite. 52 (f) The department of housing preservation and development may promul- 53 gate rules and regulations to effectuate the purposes of this section. 54 (g) The limitations on eligibility for benefits contained in this 55 section shall be in addition to those contained in any other law, rule 56 or regulation.S. 8474 218 1 (h) Notwithstanding anything to the contrary contained herein, the 2 limitations on eligibility for benefits contained in this section shall 3 not apply to a covered project as defined in subparagraph (i) of para- 4 graph a of subdivision six of section four hundred twenty-one-a of the 5 real property tax law. 6 § 11-245.2 Exemption for real property of certain water-works corpo- 7 rations. Real property owned by a water-works corporation subject to the 8 provisions of the public service law and used exclusively for the sale, 9 furnishing and distribution of water for domestic, commercial and public 10 purposes, shall not be taxable. 11 § 11-245.3 Exemption for persons sixty-five years of age or over. 1. 12 Real property owned by one or more persons, each of whom is sixty-five 13 years of age or over, or real property owned by husband and wife or by 14 siblings, one of whom is sixty-five years of age or over, or real prop- 15 erty owned by one or more persons, some of whom qualify under this 16 section and section 11-245.4 of this part shall be exempt from taxes on 17 real estate to the extent of fifty per centum of the assessed valuation 18 thereof. For the purposes of this section, siblings shall mean a brother 19 or a sister, whether related through halfblood, whole blood or adoption. 20 2. Exemption from taxation for school purposes shall not be granted in 21 the case of real property where a child resides if such child attends a 22 public school of elementary or secondary education. 23 3. No exemption shall be granted: 24 (a) if the income of the owner or the combined income of the owners of 25 the property exceeds the sum of twenty-six thousand dollars beginning 26 July first, two thousand six, twenty-seven thousand dollars beginning 27 July first, two thousand seven, twenty-eight thousand dollars beginning 28 July first, two thousand eight, twenty-nine thousand dollars beginning 29 July first, two thousand nine, and fifty thousand dollars beginning July 30 first, two thousand seventeen for the income tax year immediately 31 preceding the date of making application for exemption. Income tax year 32 shall mean the twelve-month period for which the owner or owners filed a 33 federal personal income tax return, or if no such return is filed, the 34 calendar year. Where title is vested in either the husband or the wife, 35 their combined income may not exceed such sum, except where the husband 36 or wife, or ex-husband or ex-wife is absent from the property as 37 provided in subparagraph (ii) of paragraph (d) of this subdivision, then 38 only the income of the spouse or ex-spouse residing on the property 39 shall be considered and may not exceed such sum. Such income shall 40 include social security and retirement benefits, interest, dividends, 41 total gain from the sale or exchange of a capital asset which may be 42 offset by a loss from the sale or exchange of a capital asset in the 43 same income tax year, net rental income, salary or earnings, and net 44 income from self-employment, but shall not include gifts, inheritances, 45 a return of capital, payments made to individuals because of their 46 status as victims of Nazi persecution as defined in P.L. 103-286, monies 47 earned through employment in the federal foster grandparent program, and 48 veterans disability compensation as defined in title 38 of the United 49 States Code, and any such income shall be offset by all medical and 50 prescription drug expenses actually paid which were not reimbursed or 51 paid for by insurance. In computing net rental income and net income 52 from self-employment no depreciation deduction shall be allowed for the 53 exhaustion, wear and tear of real or personal property held for the 54 production of income. 55 (b) unless the title of the property shall have been vested in the 56 owner or one of the owners of the property for at least twelve consec-S. 8474 219 1 utive months prior to the date of making application for exemption, 2 provided, however, that in the event of the death of either husband or 3 wife in whose name title of the property shall have been vested at the 4 time of death and then becomes vested solely in the survivor by virtue 5 of devise by or descent from the deceased husband or wife, the time of 6 ownership of the property by the deceased husband or wife shall be 7 deemed also a time of ownership by the survivor and such ownership shall 8 be deemed continuous for the purposes of computing such period of twelve 9 consecutive months, and provided further, that in the event of a trans- 10 fer by either husband or wife to the other spouse of all or part of the 11 title to the property, the time of ownership of the property by the 12 transferer spouse shall be deemed also a time of ownership by the trans- 13 feree spouse and such ownership shall be deemed continuous for the 14 purposes of computing such period of twelve consecutive months, and 15 provided further, that where property of the owner or owners has been 16 acquired to replace property formerly owned by such owner or owners and 17 taken by eminent domain or other involuntary proceeding, except a tax 18 sale, and where a residence is sold and replaced with another within one 19 year and both are within the state, the period of ownership of the 20 former property shall be combined with the period of ownership of the 21 property for which application is made for exemption and such periods of 22 ownership shall be deemed to be consecutive for purposes of this 23 section. Where the owner or owners transfer title to property which as 24 of the date of transfer was exempt from taxation under the provisions of 25 this section, the reacquisition of title by such owner or owners within 26 nine months of the date of transfer shall be deemed to satisfy the 27 requirement of this paragraph that the title of the property shall have 28 been vested in the owner or one of the owners for such period of twelve 29 consecutive months. Where, upon or subsequent to the death of an owner 30 or owners, title to property which as of the date of such death was 31 exempt from taxation under such provisions, becomes vested, by virtue of 32 devise or descent from the deceased owner or owners, or by transfer by 33 any other means within nine months after such death, solely in a person 34 or persons who, at the time of such death, maintained such property as a 35 primary residence, the requirement of this paragraph that the title of 36 the property shall have been vested in the owner or one of the owners 37 for such period of twelve consecutive months shall be deemed satisfied; 38 (c) unless the property is used exclusively for residential purposes, 39 provided, however, that in the event any portion of such property is not 40 so used exclusively for residential purposes but is used for other 41 purposes, such portion shall be subject to taxation and the remaining 42 portion only shall be entitled to the exemption provided by this 43 section; 44 (d) unless the property is the legal residence of and is occupied in 45 whole or in part by the owner or by all of the owners of the property; 46 except where, (i) an owner is absent from the residence while receiving 47 health-related care as an inpatient of a residential health care facili- 48 ty, as defined in section twenty-eight hundred one of the public health 49 law, provided that any income accruing to that person shall be income 50 only to the extent that it exceeds the amount paid by such owner, 51 spouse, or co-owner for care in the facility, and provided further, that 52 during such confinement such property is not occupied by other than the 53 spouse or co-owner of such owner; or, (ii) the real property is owned by 54 a husband and/or wife, or an ex-husband and/or an ex-wife, and either is 55 absent from the residence due to divorce, legal separation or abandon- 56 ment and all other provisions of this section are met provided thatS. 8474 220 1 where an exemption was previously granted when both resided on the prop- 2 erty, then the person remaining on the real property shall be sixty-two 3 years of age or over. 4 4. Application for such exemption must be made by the owner, or all of 5 the owners of the property, on forms prescribed by the state board to be 6 furnished by the department of finance and shall furnish the information 7 and must be executed in the manner required or prescribed in such form 8 and shall be filed in the department of finance in the borough in which 9 the real property is located between the fifteenth day of January and 10 the fifteenth day of March. Notwithstanding any other provision of law, 11 any person otherwise qualifying under this section shall not be denied 12 the exemption under this section if he or she becomes sixty-five years 13 of age after the taxable status date and on or before December thirty- 14 first of the same year. 15 5. At least sixty days prior to the fifteenth day of January the 16 department of finance shall mail to each person who was granted 17 exemption pursuant to this section on the latest completed assessment 18 roll an application form and a notice that such application must be 19 filed between the fifteenth day of January and the fifteenth day of 20 March every two years from the year in which such exemption was granted 21 and be approved in order for the exemption to be granted. The department 22 of finance shall, within three days of the completion and filing of the 23 tentative assessment roll, notify by mail any applicant who has included 24 with his application at least one self-addressed, prepaid envelope, of 25 the approval or denial of the application; provided, however, where an 26 applicant has included two such envelopes, the department of finance 27 shall, upon the filing of the application, send by mail, notice of 28 receipt of that application. Where an applicant is entitled to notice of 29 denial provided herein, such notice shall state the reasons for such 30 denial and shall further state that such determination is reviewable in 31 a manner provided by law. Failure to mail any such application form or 32 notices or the failure of such person to receive any or all of the same 33 shall not prevent the levy, collection and enforcement of the payment of 34 the taxes on property owned by such person. 35 6. Any conviction of having made any willful false statement in the 36 application for such exemption shall be punishable by a fine of not more 37 than one hundred dollars and shall disqualify the applicant or appli- 38 cants from further exemption for a period of five years. 39 7. Notwithstanding the maximum income exemption eligibility level 40 provided in subdivision three of this section, an exemption, subject to 41 all other provisions of this section, shall be granted as indicated in 42 the following schedule: 43 Annual Income Percentage Assessed Valuation 44 as of July 1, 2006 Exempt From Taxation 45 More than $26,000 but less than $27,000 45 per centum 46 $27,000 or more but less than $28,000 40 per centum 47 $28,000 or more but less than $29,000 35 per centum 48 $29,000 or more but less than $29,900 30 per centum 49 $29,900 or more but less than $30,800 25 per centum 50 $30,800 or more but less than $31,700 20 per centum 51 $31,700 or more but less than $32,600 15 per centum 52 $32,600 or more but less than $33,500 10 per centum 53 $33,500 or more but less than $34,400 5 per centumS. 8474 221 1 Percentage Assessed Valuation 2 Annual Income as of July 1, 2007 Exempt From Taxation 3 More than $27,000 but less than $28,000 45 per centum 4 $28,000 or more but less than $29,000 40 per centum 5 $29,000 or more but less than $30,000 35 per centum 6 $30,000 or more but less than $30,900 30 per centum 7 $30,900 or more but less than $31,800 25 per centum 8 $31,800 or more but less than $32,700 20 per centum 9 $32,700 or more but less than $33,600 15 per centum 10 $33,600 or more but less than $34,500 10 per centum 11 $34,500 or more but less than $35,400 5 per centum 12 Percentage Assessed Valuation 13 Annual Income as of July 1, 2008 Exempt From Taxation 14 More than $28,000 but less than $29,000 45 per centum 15 $29,000 or more but less than $30,000 40 per centum 16 $30,000 or more but less than $31,000 35 per centum 17 $31,000 or more but less than $31,900 30 per centum 18 $31,900 or more but less than $32,800 25 per centum 19 $32,800 or more but less than $33,700 20 per centum 20 $33,700 or more but less than $34,600 15 per centum 21 $34,600 or more but less than $35,500 10 per centum 22 $35,500 or more but less than $36,400 5 per centum 23 Percentage Assessed Valuation 24 Annual Income as of July 1, 2009 Exempt From Taxation 25 More than $29,000 but less than $30,000 45 per centum 26 $30,000 or more but less than $31,000 40 per centum 27 $31,000 or more but less than $32,000 35 per centum 28 $32,000 or more but less than $32,900 30 per centum 29 $32,900 or more but less than $33,800 25 per centum 30 $33,800 or more but less than $34,700 20 per centum 31 $34,700 or more but less than $35,600 15 per centum 32 $35,600 or more but less than $36,500 10 per centum 33 $36,500 or more but less than $37,400 5 per centum 34 Annual Income as of July 1, 2017 Percentage Assessed Valuation 35 Exempt From Taxation 36 More than $50,000 but less than $51,000 45 per centum 37 $51,000 or more but less than $52,000 40 per centum 38 $52,000 or more but less than $53,000 35 per centum 39 $53,000 or more but less than $53,900 30 per centum 40 $53,900 or more but less than $54,800 25 per centum 41 $54,800 or more but less than $55,700 20 per centum 42 $55,700 or more but less than $56,600 15 per centum 43 $56,600 or more but less than $57,500 10 per centum 44 $57,500 or more but less than $58,400 5 per centum 45 8. Any exemption provided by this section shall be computed after all 46 partial exemptions allowed by law have been subtracted from the total 47 amount assessed.S. 8474 222 1 9. Exemption from taxation as provided in this section on real proper- 2 ty owned by husband and wife, one of whom is sixty-five years of age or 3 older, once granted, shall not be rescinded solely because of the death 4 of the older spouse so long as the surviving spouse is at least sixty- 5 two years of age. 6 10. a. For the purposes of this section, title to that portion of real 7 property owned by a cooperative apartment corporation in which a 8 tenant-stockholder of such corporation resides and which is represented 9 by his or her share or shares of stock in such corporation as determined 10 by its or their proportional relationship to the total outstanding stock 11 of the corporation, including that owned by the corporation, shall be 12 deemed to be vested in such tenant-stockholder. That proportion of the 13 assessment of real property owned by a cooperative apartment corpo- 14 ration, determined by the relationship of such real property vested in 15 such tenant-stockholder to such entire parcel and the buildings thereon 16 owned by such cooperative apartment corporation in which such tenant- 17 stockholder resides, shall be subject to exemption from taxation pursu- 18 ant to this section and any exemption so granted shall be credited by 19 the department of finance against the assessed valuation of such real 20 property; the reduction in real property taxes realized thereby shall be 21 credited by the cooperative apartment corporation against the amount of 22 such taxes otherwise payable by or chargeable to such tenant-stockhold- 23 er. Each cooperative apartment corporation shall notify each tenant- 24 stockholder in residence thereof of such provisions as are set forth in 25 this section. 26 b. Notwithstanding any other provision of law, a tenant-stockholder 27 who resides in a dwelling which is subject to the provisions of either 28 article two, four, five or eleven of the private housing finance law and 29 who is eligible for a rent increase exemption pursuant to chapter seven 30 of title twenty-six of the code of the preceding municipality shall not 31 be eligible for an exemption pursuant to this subdivision. Notwithstand- 32 ing any other provision of law, a tenant-stockholder who resides in a 33 dwelling which is subject to the provisions of either article two, four, 34 five or eleven of the private housing finance law and who is not eligi- 35 ble for a rent increase exemption pursuant to chapter seven of title 36 twenty-six of this code but who meets the requirements for eligibility 37 for an exemption pursuant to this section shall be eligible for such 38 exemption provided that such exemption shall be in an amount determined 39 by multiplying the exemption otherwise allowable pursuant to this 40 section by a fraction having a numerator equal to the amount of real 41 property taxes or payments in lieu of taxes that were paid with respect 42 to such dwelling and a denominator equal to the full amount of real 43 property taxes that would have been owed with respect to such dwelling 44 had it not been granted an exemption or abatement of real property taxes 45 pursuant to any provision of law, provided, however, that any reduction 46 in real property taxes received with respect to such dwelling pursuant 47 to chapter seven of title twenty-six of this code or pursuant to this 48 section shall not be considered in calculating such numerator. Any 49 tenant-stockholder who resides in a dwelling which was or continues to 50 be subject to a mortgage insured or initially insured by the federal 51 government pursuant to section two hundred thirteen of the national 52 housing act, as amended, and who is eligible for both a rent increase 53 exemption pursuant to chapter seven of title twenty-six of this code and 54 an exemption pursuant to this subdivision, may apply for and receive 55 either a rent increase exemption pursuant to such chapter or an 56 exemption pursuant to this subdivision, but not both.S. 8474 223 1 11. Exemption Option. Notwithstanding any provision of this part to 2 the contrary, real property owned by one or more persons where one of 3 such owners qualifies for a real property tax exemption pursuant to this 4 section or section 11-245.4 of this part, and another of such owners 5 qualifies for a different tax exemption pursuant to such sections of 6 this part as authorized by state law, such owners shall have the option 7 of choosing the one exemption which is most beneficial to such owners. 8 Such owners shall not be prohibited from taking one such exemption sole- 9 ly on the basis that such owners qualify for more than one exemption and 10 therefore are not eligible for any exemptions. 11 § 11-245.4 Exemption for persons with disabilities. 1. (a) Real prop- 12 erty owned by one or more persons with disabilities, or real property 13 owned by a husband, wife, or both, or by siblings, at least one of whom 14 has a disability, or real property owned by one or more persons, some of 15 whom qualify under this section and section 11-245.3 of this part, and 16 whose income, as hereafter defined, is limited by reason of such disa- 17 bility, shall be exempt from taxes on real estate to the extent of fifty 18 per centum of the assessed valuation thereof as hereinafter provided. 19 For purposes of this section, sibling shall mean a brother or a sister, 20 whether related through half blood, whole blood or adoption. 21 (b) For purposes of this section, a person with a disability is one 22 who has a physical or mental impairment, not due to current use of alco- 23 hol or illegal drug use, which substantially limits such person's abili- 24 ty to engage in one or more major life activities, such as caring for 25 one's self, performing manual tasks, walking, seeing, hearing, speaking, 26 breathing, learning and working, and who (i) is certified to receive 27 social security disability insurance (SSDI) or supplemental security 28 income (SSI) benefits under the federal social security act, or (ii) is 29 certified to receive railroad retirement disability benefits under the 30 federal railroad retirement act, or (iii) has received a certificate 31 from the state commission for the blind and visually handicapped stating 32 that such person is legally blind, or (iv) is certified to receive a 33 United States postal service disability pension. An award letter from 34 the social security administration or the railroad retirement board or a 35 certificate from the state commission for the blind and visually hand- 36 icapped or an award letter from the United States postal service shall 37 be submitted as proof of disability. 38 2. Exemption from taxation for school purposes shall not be granted in 39 the case of real property where a child resides if such child attends a 40 public school of elementary or secondary education. 41 3. No exemption shall be granted: 42 (a) if the income of the owner or the combined income of the owners of 43 the property for the income tax year immediately preceding the date of 44 making application for exemption exceeds the sum of twenty-six thousand 45 dollars beginning July first, two thousand six, twenty-seven thousand 46 dollars beginning July first, two thousand seven, twenty-eight thousand 47 dollars beginning July first, two thousand eight, twenty-nine thousand 48 dollars beginning July first, two thousand nine, and fifty thousand 49 dollars beginning July first, two thousand seventeen. Income tax year 50 shall mean the twelve-month period for which the owner or owners filed a 51 federal personal income tax return, or if no such return is filed, the 52 calendar year. Where title is vested in either the husband or the wife, 53 their combined income may not exceed such sum, except where the husband 54 or wife, or ex-husband or ex-wife is absent from the property due to 55 divorce, legal separation or abandonment, then only the income of the 56 spouse or ex-spouse residing on the property shall be considered and mayS. 8474 224 1 not exceed such sum. Such income shall include social security and 2 retirement benefits, interest, dividends, total gain from the sale or 3 exchange of a capital asset which may be offset by a loss from the sale 4 or exchange of a capital asset in the same income tax year, net rental 5 income, salary or earnings, and net income from self-employment, but 6 shall not include a return of capital, gifts, inheritances or monies 7 earned through employment in the federal foster grandparent program and 8 any such income shall be offset by all medical and prescription drug 9 expenses actually paid which were not reimbursed or paid for by insur- 10 ance. In computing net rental income and net income from self-employment 11 no depreciation deduction shall be allowed for the exhaustion, wear and 12 tear of real or personal property held for the production of income; 13 (b) unless the property is used exclusively for residential purposes, 14 provided, however, that in the event any portion of such property is not 15 so used exclusively for residential purposes but is used for other 16 purposes, such portion shall be subject to taxation and the remaining 17 portion only shall be entitled to the exemption provided by this 18 section; 19 (c) unless the real property is the legal residence of and is occupied 20 in whole or in part by the disabled person; except where the disabled 21 person is absent from the residence while receiving health-related care 22 as an inpatient of a residential health care facility, as defined in 23 section twenty-eight hundred one of the public health law, provided that 24 any income accruing to that person shall be considered income for 25 purposes of this section only to the extent that it exceeds the amount 26 paid by such person or spouse or sibling of such person for care in the 27 facility. 28 4. Application for such exemption must be made annually by the owner, 29 or all of the owners of the property, on forms prescribed by the state 30 board, and shall be filed with the department of finance on or before 31 the fifteenth day of March of the appropriate year; provided, however, 32 proof of a permanent disability need be submitted only in the year 33 exemption pursuant to this section is first sought or the disability is 34 first determined to be permanent. 35 5. At least sixty days prior to the fifteenth day of March of the 36 appropriate year, the department of finance shall mail to each person 37 who was granted exemption pursuant to this section on the latest 38 completed assessment roll an application form and a notice that such 39 application must be filed on or before the fifteenth day of March and be 40 approved in order for the exemption to continue to be granted. Failure 41 to mail such application form or the failure of such person to receive 42 the same shall not prevent the levy, collection and enforcement of the 43 payment of the taxes on property owned by such person. 44 6. Notwithstanding the maximum income exemption eligibility level 45 provided in subdivision three of this section, an exemption, subject to 46 all other provisions of this section, shall be granted as indicated in 47 the following schedule: 48 Percentage Assessed Valuation 49 Annual Income as of July 1, 2006 Exempt From Taxation 50 More than $26,000 but less than $27,000 45 per centum 51 $27,000 or more but less than $28,000 40 per centum 52 $28,000 or more but less than $29,000 35 per centum 53 $29,000 or more but less than $29,900 30 per centum 54 $29,900 or more but less than $30,800 25 per centumS. 8474 225 1 $30,800 or more but less than $31,700 20 per centum 2 $31,700 or more but less than $32,600 15 per centum 3 $32,600 or more but less than $33,500 10 per centum 4 $33,500 or more but less than $34,400 5 per centum 5 Percentage Assessed Valuation 6 Annual Income as of July 1, 2007 Exempt From Taxation 7 More than $27,000 but less than $28,000 45 per centum 8 $28,000 or more but less than $29,000 40 per centum 9 $29,000 or more but less than $30,000 35 per centum 10 $30,000 or more but less than $30,900 30 per centum 11 $30,900 or more but less than $31,800 25 per centum 12 $31,800 or more but less than $32,700 20 per centum 13 $32,700 or more but less than $33,600 15 per centum 14 $33,600 or more but less than $34,500 10 per centum 15 $34,500 or more but less than $35,400 5 per centum 16 Percentage Assessed Valuation 17 Annual Income as of July 1, 2008 Exempt From Taxation 18 More than $28,000 but less than $29,000 45 per centum 19 $29,000 or more but less than $30,000 40 per centum 20 $30,000 or more but less than $31,000 35 per centum 21 $31,000 or more but less than $31,900 30 per centum 22 $31,900 or more but less than $32,800 25 per centum 23 $32,800 or more but less than $33,700 20 per centum 24 $33,700 or more but less than $34,600 15 per centum 25 $34,600 or more but less than $35,500 10 per centum 26 $35,500 or more but less than $36,400 5 per centum 27 Percentage Assessed Valuation 28 Annual Income as of July 1, 2009 Exempt From Taxation 29 More than $29,000 but less than $30,000 45 per centum 30 $30,000 or more but less than $31,000 40 per centum 31 $31,000 or more but less than $32,000 35 per centum 32 $32,000 or more but less than $32,900 30 per centum 33 $32,900 or more but less than $33,800 25 per centum 34 $33,800 or more but less than $34,700 20 per centum 35 $34,700 or more but less than $35,600 15 per centum 36 $35,600 or more but less than $36,500 10 per centum 37 $36,500 or more but less than $37,400 5 per centum 38 Percentage Assessed Valuation 39 Annual Income as of July 1, 2017 Exempt From Taxation 40 More than $50,000 but less than $51,000 45 per centum 41 $51,000 or more but less than $52,000 40 per centum 42 $52,000 or more but less than $53,000 35 per centum 43 $53,000 or more but less than $53,900 30 per centum 44 $53,900 or more but less than $54,800 25 per centum 45 $54,800 or more but less than $55,700 20 per centum 46 $55,700 or more but less than $56,600 15 per centumS. 8474 226 1 $56,600 or more but less than $57,500 10 per centum 2 $57,500 or more but less than $58,400 5 per centum 3 7. Any exemption provided by this section shall be computed after all 4 other partial exemptions allowed by law have been subtracted from the 5 total amount assessed; provided, however, that no parcel may receive an 6 exemption pursuant to both this section and section 11-245.3. 7 8. (a) For purposes of this section, title to that portion of real 8 property owned by a cooperative apartment corporation in which a 9 tenant-stockholder of such corporation resides, and which is represented 10 by his or her share or shares of stock in such corporation as determined 11 by its or their proportional relationship to the total outstanding stock 12 of the corporation, including that owned by the corporation, shall be 13 deemed to be vested in such tenant-stockholder. That proportion of the 14 assessment of such real property owned by a cooperative apartment corpo- 15 ration determined by the relationship of such real property vested in 16 such tenant-stockholder to such entire parcel and the buildings thereon 17 owned by such cooperative apartment corporation in which such tenant- 18 stockholder resides shall be subject to exemption from taxation pursuant 19 to this section and any exemption so granted shall be credited by the 20 department of finance against the assessed valuation of such real prop- 21 erty; the reduction in real property taxes realized thereby shall be 22 credited by the cooperative apartment corporation against the amount of 23 such taxes otherwise payable by or chargeable to such tenant-stockhold- 24 er. 25 (b) Notwithstanding any other provision of law, a tenant-stockholder 26 who resides in a dwelling which is subject to the provisions of either 27 article two, four, five or eleven of the private housing finance law 28 shall not be eligible for an exemption pursuant to this subdivision. 29 9. Notwithstanding any other provision of law to the contrary, the 30 provisions of this section shall apply to real property held in trust 31 solely for the benefit of a person or persons who would otherwise be 32 eligible for a real property tax exemption, pursuant to subdivision one 33 of this section, were such person or persons the owner or owners of such 34 real property. 35 10. Exemption Option. Notwithstanding any provision of this part to 36 the contrary, real property owned by one or more persons where one of 37 such owners qualifies for a real property tax exemption pursuant to this 38 section or section 11-245.3 of this part, and another of such owners 39 qualifies for a different tax exemption pursuant to such sections of 40 this part as authorized by state law, such owners shall have the option 41 of choosing the one exemption which is most beneficial to such owners. 42 Such owners shall not be prohibited from taking one such exemption sole- 43 ly on the basis that such owners qualify for more than one exemption and 44 therefore are not eligible for any exemptions. 45 § 11-245.45 Exemption for veterans. Pursuant to paragraph (d) of 46 subdivision eight of section four hundred fifty-eight of the real prop- 47 erty tax law, the city hereby authorizes real property owned by a coop- 48 erative apartment corporation to be exempt from taxation in accordance 49 with such section and any local laws adopted pursuant to such section 50 beginning July first, nineteen hundred ninety-eight. 51 § 11-245.46 Exemption for veterans; taxes for school purposes 52 exempted. Pursuant to paragraph three of subdivision one of section 53 four hundred fifty-eight of the real property tax law, the city hereby 54 provides that the exemption authorized pursuant to such section shall be 55 applicable to taxes for school purposes.S. 8474 227 1 § 11-245.5 Alternative exemption for veterans. Pursuant to paragraph 2 (d) of subdivision six of section four hundred fifty-eight-a of the real 3 property tax law, the city hereby authorizes real property owned by a 4 cooperative apartment corporation to be exempt from taxation in accord- 5 ance with such section and any local laws adopted pursuant to such 6 section beginning July first, nineteen hundred ninety-eight. 7 § 11-245.6 Alternative exemption for veterans; maximum exemptions 8 allowable. Pursuant to subparagraph (ii) of paragraph (d) of subdivision 9 two of section four hundred fifty-eight-a of the real property tax law, 10 the city hereby increases the maximum exemptions allowable in paragraphs 11 (a), (b) and (c) of subdivision two of section four hundred 12 fifty-eight-a of the real property tax law. The maximum exemption allow- 13 able in such paragraph (a) shall be fifteen percent of the assessed 14 value of the qualifying residential real property; provided, however, 15 that such exemption shall not exceed forty-eight thousand dollars or the 16 product of forty-eight thousand dollars multiplied by the latest class 17 ratio, whichever is less. In addition to the exemption provided by such 18 paragraph (a), as increased by this section, the maximum exemption 19 allowable in such paragraph (b) shall be ten percent of the assessed 20 value of the qualifying residential real property; provided, however, 21 that such exemption shall not exceed thirty-two thousand dollars or the 22 product of thirty-two thousand dollars multiplied by the latest class 23 ratio, whichever is less. In addition to the exemptions provided by such 24 paragraphs (a) and (b), as increased by this section, the maximum 25 exemption allowable in such paragraph (c) shall be the product of the 26 assessed value of the qualifying residential real property multiplied by 27 fifty percent of the veteran's disability rating; provided, however, 28 that such exemption shall not exceed one hundred sixty thousand dollars 29 or the product of one hundred sixty thousand dollars multiplied by the 30 latest class ratio, whichever is less. The maximum exemptions allowable 31 in such paragraphs (a), (b) and (c), as increased by this section, shall 32 not apply to any assessment roll completed and filed prior to the first 33 day of January, two thousand six. 34 § 11-245.7 Alternative exemption for veterans; gold star parent. 35 Pursuant to paragraph (b) of subdivision seven of section four hundred 36 fifty-eight-a of the real property tax law, and in accordance with such 37 section and any local laws adopted pursuant thereto, the city hereby 38 includes a gold star parent within the definition of "qualified owner" 39 as provided in paragraph (c) of subdivision one of such section, and 40 includes property owned by a gold star parent within the definition of 41 "qualifying residential real property" as provided in paragraph (d) of 42 subdivision one of such section, provided that such property is the 43 primary residence of the gold star parent. 44 § 11-245.75 Alternative exemption for veterans; school district taxa- 45 tion exempted. Pursuant to subparagraph (i) of paragraph (d) of subdivi- 46 sion two of section four hundred fifty-eight-a of the real property tax 47 law, the city hereby provides that the exemptions allowable in para- 48 graphs (a), (b) and (c) of subdivision two of section four hundred 49 fifty-eight-a of the real property tax law shall be applicable to school 50 district taxation. 51 § 11-245.8 ENERGY STAR appliances. a. For the purposes of this 52 section, the following definitions shall apply in conjunction with the 53 definitions found in sections 27-232 and 27-2004 of this code: 54 (1) The term "ENERGY STAR" shall mean a designation from the United 55 States environmental protection agency or department of energy indicat-S. 8474 228 1 ing that a product meets the energy efficiency standards set forth by 2 the agency for compliance with the ENERGY STAR program. 3 (2) The term "household appliance" shall mean any refrigerator, room 4 air conditioner, dishwasher or clothes washer, within a dwelling unit in 5 a multiple dwelling that is provided by the owner of such multiple 6 dwelling. This definition shall also include any boiler or furnace that 7 provides heat or hot water for any dwelling unit in a multiple dwelling. 8 b. For any building for which any benefit is conferred pursuant to 9 four hundred eighty-nine of the real property tax law, whenever any 10 household appliance in any dwelling unit, or any household appliance 11 that provides heat or hot water for any dwelling unit in a multiple 12 dwelling, is installed or replaced with a new household appliance, such 13 new appliance shall be certified as Energy Star. 14 c. For any building for which any benefit is conferred pursuant to 15 section four hundred twenty-one-a of the real property tax law, whenever 16 any household appliance in any dwelling unit, or any household appliance 17 that provides heat or hot water for any dwelling unit in a multiple 18 dwelling, is installed or replaced with a new household appliance, such 19 new appliance shall be certified as Energy Star. 20 d. The commissioner may enact rules requiring additional energy 21 conservation measures for any building for which any benefit is 22 conferred pursuant to section four hundred eighty-nine of the real prop- 23 erty tax law or section four hundred twenty-one-a of the real property 24 tax law. 25 e. The commissioner shall inform applicants for any benefits affected 26 by this section of the requirements of this section. 27 f. The requirements of subdivisions b and c of this section shall not 28 apply where: 29 1) an ENERGY STAR certified household appliance of appropriate size is 30 not manufactured, such that movement of walls or fixtures would be 31 necessary to create sufficient space for such appliance; or 32 2) an ENERGY STAR certified boiler or furnace of sufficient capacity 33 is not manufactured. 34 § 11-245.9 Notice of residential property tax exemptions. a. The 35 commissioner of finance, or his or her designee, shall provide a notice 36 relating to the lien sale process to all property owners included with 37 the notice of value sent to property owners by the department of finance 38 and, in addition, no later than October thirty-first of each year, to 39 any property owner who is delinquent in the payment of any real property 40 taxes, assessments, or any other charges that are made a lien subject to 41 the provisions of chapter three of this title, except sewer rents, sewer 42 charges and water rents, if such delinquency, in the aggregate, equals 43 or exceeds the sum of one thousand dollars. This notice shall include, 44 but not be limited to, actions homeowners can take if a lien is sold on 45 such property; the type of debt that can be sold in a lien sale; a time- 46 line of statutory notifications required pursuant to section 11-320 of 47 this title; a clear, concise explanation of the consequences of the sale 48 of a tax lien; the telephone number and electronic mail address of the 49 employee or employees designated pursuant to subdivision f of section 50 11-320 of this title; a conspicuous statement that an owner of any class 51 of property may enter into a payment plan for the satisfaction of delin- 52 quent real property taxes, assessments, sewer rents, sewer surcharges, 53 water rents, and any other charges that are made a lien subject to the 54 provisions of chapter three of this title, or exclusion from the tax 55 lien sale; credits and property tax exemptions that may exclude certain 56 class one real property from a tax lien sale; and clear and conciseS. 8474 229 1 instructions on how an owner of any class of property may register to 2 receive information from the department, through electronic mail, 3 regarding outreach sessions relating to the sale of tax liens conducted 4 pursuant to subdivision j of section 11-320 of this title. Such notice 5 shall also include information on the following real property tax cred- 6 its or real property tax exemptions: 7 1. the senior citizen homeowner exemption pursuant to section 11-245.3 8 of this part; 9 2. the exemption for persons with disabilities pursuant to section 10 11-245.4 of this part; 11 3. the exemptions for veterans pursuant to sections four hundred 12 fifty-eight and four hundred fifty-eight-a of the real property tax law; 13 4. the school tax relief (STAR) exemption pursuant to section four 14 hundred twenty-five of the real property tax law; 15 5. the enhanced school tax relief (STAR) exemption pursuant to subdi- 16 vision four of section four hundred twenty-five of the real property tax 17 law; 18 6. the state circuit breaker income tax credit pursuant to subsection 19 (e) of section six hundred six of the tax law; and 20 7. any other credit or residential real property tax exemption, which, 21 in the discretion of the commissioner, should be included in such 22 notice. 23 Upon such property owner's written request, or verbal request to 311 24 or any employee designated pursuant to subdivision f of section 11-320 25 of this title, a Chinese, Korean, Russian or Spanish translation of such 26 notice shall be provided promptly to such property owner. 27 b. The notice required pursuant to this section shall include: 28 1. a brief description of each exemption program; and 29 2. a phone number at the department and a website address where 30 taxpayers can obtain additional information on the exemption programs 31 and all necessary forms and applications. 32 c. The notice that is required, pursuant to this section, to be 33 provided by the commissioner of finance or his or her designee no later 34 than October thirty-first of each year shall include contact information 35 for the office of financial empowerment at the department of consumer 36 and worker protection. 37 § 11-245.10 Alternative exemption for veterans; transfer of title. 1. 38 Pursuant to subdivision eight of section four hundred fifty-eight-a of 39 the real property tax law, where a veteran, the spouse of a veteran or 40 unremarried surviving spouse already receiving an exemption pursuant to 41 such section sells the property receiving such exemption and purchases 42 property within the city, the department of finance shall transfer and 43 prorate, for the remainder of the fiscal year, the exemption received. 44 The prorated exemption shall be based upon the date the veteran, the 45 spouse of the veteran or unremarried surviving spouse obtains title to 46 the new property and shall be calculated by multiplying the tax rate for 47 which taxes were levied, on the appropriate tax roll used for the fiscal 48 year during which the transfer occurred, multiplied by the previously 49 granted exempt amount, multiplied by the fraction of each fiscal year 50 remaining subsequent to the transfer of title. 51 2. Nothing in this section shall be construed to remove the require- 52 ment that any such veteran, the spouse of the veteran or unremarried 53 surviving spouse transferring an exemption pursuant to subdivision one 54 of this section shall reapply for the exemption authorized pursuant to 55 section four hundred fifty-eight-a of the real property tax law on or 56 before the following taxable status date, in the event such veteran, theS. 8474 230 1 spouse of the veteran or unremarried surviving spouse wishes to receive 2 the exemption in future fiscal years. 3 PART 2 4 EXEMPTION FOR CERTAIN NONPROFIT ORGANIZATIONS 5 § 11-246 Taxation of property of nonprofit organizations, pharmaceu- 6 tical societies and dental societies. 1. a. Pursuant to the requirements 7 of sections four hundred twenty-a and four hundred forty-six of the real 8 property tax law, real property owned by a corporation or association 9 which is organized or conducted exclusively for religious, charitable, 10 hospital, educational or cemetery purposes, or for the purposes of the 11 moral or mental improvement of men, women or children or for two or more 12 such purposes shall not be taxable. 13 b. Real property owned by a corporation or association which is organ- 14 ized or conducted exclusively for Bible, tract, benevolent, missionary, 15 infirmary, public playground, scientific, literary, library, patriotic 16 or historical purposes, for the development of good sportsmanship for 17 persons under the age of eighteen years through the conduct of super- 18 vised athletic games, or for the enforcement of laws relating to chil- 19 dren or animals, or for two or more such purposes, and used exclusively 20 for carrying out thereupon one or more of such purposes either by the 21 owning corporation or association, or by another such corporation or 22 association as provided in section four hundred twenty-b of the real 23 property tax law shall not be taxable. Any corporation or association 24 which uses real property exempted from taxation pursuant to this para- 25 graph shall make available to the council, the commissioner of finance 26 and the public a report, in such form as may be prescribed by the 27 commissioner of finance, setting forth the efforts of such corporation 28 or association undertaken in the previous calendar year to provide 29 assistance to city programs and city residents, by filing such report 30 with the city clerk not later than June first of each year. 31 c. Real property owned by a corporation or association which is organ- 32 ized or conducted exclusively for bar association or medical society 33 purposes, or both such purposes, and used exclusively for carrying out 34 thereupon one or both such purposes either by the owning corporation or 35 association, or by another such corporation or association shall be 36 taxable pursuant to the authority contained in section four hundred 37 twenty-b of the real property tax law. 38 2. Real property from which no rent is derived and which is owned by 39 an incorporated pharmaceutical society which is either wholly or partly 40 within the city, which society has heretofore been or may hereafter be 41 authorized and empowered by act of the legislature to establish and 42 which has established or may hereafter establish a college of pharmacy 43 in this city shall be taxable. 44 3. Real property from which no income is derived which is owned by a 45 dental society of any judicial district which judicial district is whol- 46 ly or partly within the city, which dental society was incorporated 47 under the education law shall be taxable. 48 4. Real property previously exempt from taxation but made taxable 49 pursuant to this section as of the first of January, nineteen hundred 50 seventy-two shall be taxed for the period from the first of January to 51 and including the thirtieth of June, nineteen hundred seventy-two by 52 applying one-half of the tax rate for the fiscal year nineteen hundred 53 seventy-one, seventy-two to the assessments made and exemptions claimed 54 with reference to the taxable status date falling on the twenty-fifth ofS. 8474 231 1 January, nineteen hundred seventy-two. The taxes thus computed for the 2 period from the first of January to and including the thirtieth of June, 3 nineteen hundred seventy-two shall be due and payable on the first of 4 June, nineteen hundred seventy-two. 5 5. Real property which is taxable under this section shall be subject 6 to any special ad valorem levies and special assessments which are 7 imposed to defray the cost of improvements or services furnished by the 8 city. 9 § 11-246.1 Denial; information required. The commissioner of finance 10 shall include, in any written communication with a property owner 11 related to the denial of a real property tax exemption pursuant to 12 section four hundred twenty-a, four hundred twenty-b, four hundred 13 forty-six, or four hundred sixty-two of the real property tax law, 14 information on actions a property owner can take, upon notice of a sale 15 of a tax lien of property of such owner, that may prevent the sale of 16 such tax lien. 17 PART 3 18 TAX EXEMPTION FOR CERTAIN INDUSTRIAL AND 19 COMMERCIAL PROPERTIES 20 § 11-247 Definitions. When used in this part: 21 a. "Applicant" means any person or corporation obligated to pay real 22 property taxes on the property for which an exemption is sought, or in 23 the case of exempt property, the record owner thereof, provided, howev- 24 er, that such property is not commercial property located in an area 25 designated as excluded pursuant to section 11-249 of this part; 26 b. "Board" means the industrial and commercial incentive board; 27 c. "Commercial" means any non-residential property used primarily for 28 the buying, selling or otherwise providing of goods or services, 29 provided that the use of such property has not been designated as a 30 restricted commercial use pursuant to section 11-249 of this part; 31 d. "Construction" means the building of new industrial or commercial 32 structures on vacant or predominantly vacant land, or the modernization, 33 rehabilitation or expansion or other improvements of an existing commer- 34 cial structure where such modernization, rehabilitation, expansion or 35 other improvement is not physically or functionally integrated with the 36 existing structure or results in additional usable square footage fifty 37 per centum greater than the square footage of the existing structure; 38 e. "Industrial" means property used primarily for the manufacturing or 39 assembling of goods or the processing of raw materials; 40 f. "Predominantly vacant land" means land, including land under water, 41 on which not more than fifteen percent of the lot area contains 42 enclosed, permanent improvements; in addition, such land may include 43 existing foundations. A fence, shed, garage, attendant's booth, paving, 44 pier, bulkhead, lighting fixtures, and similar items, or any improvement 45 having an assessed value of less than two thousand dollars shall not 46 constitute an enclosed, permanent improvement; 47 g. "Reconstruction" means the modernization, rehabilitation, expansion 48 or other improvement of an existing commercial or industrial structure 49 where the total proposed project cost is in an amount equal to at least 50 twenty per centum of the assessed value of the property at the time an 51 application for a certificate of eligibility pursuant to this part is 52 made, and where such modernization, rehabilitation, expansion or other 53 improvement is physically and functionally integrated with the existing 54 structure and does not create additional usable square footage greaterS. 8474 232 1 than fifty per centum of the usable square footage of the existing 2 structure except in a case where the existing structure has been 3 substantially destroyed by fire or other casualty; 4 h. "Residential property" shall mean property, other than property 5 used for hotel purposes, on which will exist upon completion of 6 construction a building or structure containing more than one independ- 7 ent dwelling unit or where more than one-third of the total square 8 footage of said structure is to be used for residential purposes; it 9 shall also mean, in the case of reconstruction, property on which exists 10 or will exist upon completion of the reconstruction a building or struc- 11 ture where more than one-third of the total square footage is used or is 12 to be used for dwelling purposes; 13 i. "Vacant land" means land, including land under water, which 14 contains no enclosed, permanent improvement. A fence, shed, garage, 15 attendant's booth, paving, pier, bulkhead, lighting fixtures, and simi- 16 lar items, or any improvement having an assessed value of less than two 17 thousand dollars shall not constitute an enclosed, permanent improve- 18 ment. 19 § 11-248 Industrial and commercial incentive board. There shall be an 20 industrial and commercial incentive board to consist of the deputy mayor 21 who shall be chairperson of the board, the commissioner of finance, the 22 director of planning and the director of budget, each of whom shall have 23 the power to designate an alternate to represent him or her at board 24 meetings with all the rights and powers, including the right to vote, 25 reserved to all board members, provided that such designation be in 26 writing to the chairperson of the board, and three other members to be 27 appointed by the mayor. The members of the board who shall be agents, 28 officers, or employees of the city shall serve without compensation but 29 shall be reimbursed for expenses necessarily incurred in the performance 30 of their duties. The members of the board who are not agents, officers, 31 or employees of the city shall receive as compensation for their 32 services one hundred dollars per diem, provided, however, that the total 33 compensation paid to any such member shall not exceed twelve hundred 34 dollars for any calendar year. Four members of the board shall consti- 35 tute a quorum. 36 § 11-249 Functions, powers and duties of the board; annual desig- 37 nation of exemption areas and restricted commercial uses. a. The 38 members of the board shall have the following functions, powers and 39 duties: 40 1. to receive and review applications for certificates of eligibility 41 pursuant to the charter and pursuant to subdivision thirteen of section 42 11-604 and subdivision (e) of section 11-503 of this title; 43 2. to make findings and determinations on the qualifications of 44 applicants for certificates of eligibility pursuant to this part and 45 subdivision (e) of section 11-503 of this title; 46 3. to issue certificates of eligibility and amendments thereto; 47 4. to make recommendations to the tax commission on the termination of 48 a tax exemption pursuant to section 11-253 of this part; 49 5. to designate annually, pursuant to subdivision b of this section, 50 areas in which exemptions for commercial construction or reconstruction 51 shall be granted as of right, areas from which such exemptions shall be 52 excluded and commercial uses for which the granting of exemptions shall 53 be restricted; and 54 6. to make and promulgate rules and regulations to carry out the 55 purposes of the board.S. 8474 233 1 b. (1) Not later than October first of each year the board shall 2 publish a notice at least once in the official paper or a newspaper of 3 general circulation in the city setting forth: (i) the proposed bounda- 4 ries of areas in which commercial construction or reconstruction shall 5 be granted exemptions as of right, proposed boundaries of areas from 6 which exemptions for commercial construction or reconstruction shall be 7 excluded and proposed restricted commercial uses; and (ii) the date, not 8 earlier than ten nor later than thirty days following the publication of 9 such notice, on which the board will hold a public hearing to hear all 10 persons interested in the designation of such boundaries and restricted 11 commercial uses. 12 (2) Not earlier than ten nor later than thirty days following the 13 conclusion of the public hearing provided for in paragraph one of this 14 subdivision, the board shall designate the boundaries of areas in which 15 exemptions for commercial construction or reconstruction shall be grant- 16 ed as of right and areas from which such exemptions shall be excluded 17 and shall also designate restricted commercial uses. Such designations 18 shall be made upon the following determinations: 19 (i) With respect to areas in which exemption for commercial 20 construction or reconstruction shall be granted as of right, the board 21 shall determine that market conditions in each area are such that 22 exemptions are required to attract commercial construction or recon- 23 struction to the area and that attracting such construction or recon- 24 struction, and the granting of exemptions therefor, are in the public 25 interest. In making such determination, the board may consider, among 26 other factors, that the area is experiencing economic distress or is 27 characterized by an unusually large number of vacant, underutilized, 28 unsuitable or substandard structures, or by other substandard, unsani- 29 tary, deteriorated or deteriorating conditions, with or without tangible 30 blight, or that commercial development in the area will be beneficial to 31 the city's economy. 32 (ii) With respect to areas from which exemptions for commercial 33 construction or reconstruction are to be excluded, the board shall 34 determine that market conditions in each area are such that exemptions 35 are not required to attract commercial construction or reconstruction to 36 the area, or that it is not in the public interest to grant exemptions 37 for commercial construction or reconstruction in the area. No applica- 38 tions for exemptions for commercial construction or reconstruction shall 39 be accepted from such areas. 40 (iii) With respect to restricted commercial uses, the board shall 41 determine that it is not in the public interest to grant exemptions for 42 such uses unless the board further determines that in certain areas 43 designated pursuant to this subdivision, such uses will have an espe- 44 cially positive impact on the area's economy. All applications for 45 exemptions for restricted commercial uses shall be determined pursuant 46 to paragraphs two and three of subdivision b of section 11-251 of this 47 part. 48 (3) Designations made pursuant to this subdivision shall be effective 49 on the first of January of each year. 50 c. So far as practicable and subject to the approval of the mayor, the 51 services of all other city departments and agencies shall be made avail- 52 able by their respective heads to the board for the carrying out of the 53 functions stated in this part. The head of any department or agency 54 shall furnish information in the possession of such department or agency 55 when the board, after consultation with the mayor, so requests.S. 8474 234 1 § 11-250 Real property tax exemption. a. A real property tax 2 exemption pursuant to this part shall be granted to an applicant who, 3 within a period of thirty-six months, or following an extension pursuant 4 to section 11-254 of this part within a period of forty-eight months, 5 from the date of issuance of a certificate of eligibility has completed 6 reconstruction or construction work in accordance with the plans 7 approved by the board in the certificate of eligibility. The amount of 8 the tax exemption shall be determined as follows: 9 (1) In the case of an applicant who has completed industrial 10 construction or reconstruction work, or commercial reconstruction work 11 designated as of right pursuant to section 11-249 of this part or as 12 specially needed pursuant to section 11-251 of this part, the tax 13 exemption shall continue for nineteen tax years in an amount decreasing 14 by five per centum each year from an exemption of ninety-five per centum 15 of the exemption base, as defined in paragraph four of this subdivision. 16 (2) In the case of an applicant who has completed other commercial 17 reconstruction work, or new commercial construction work designated as 18 of right pursuant to section 11-249 of this part or as specially needed 19 pursuant to section 11-251 of this part, the tax exemption shall contin- 20 ue for ten tax years, in an amount decreasing by five per centum each 21 year from an exemption of fifty per centum of the exemption base. 22 (3) In the case of an applicant who has completed other new commercial 23 construction work, the exemption shall continue for five tax years in an 24 amount decreasing by ten per centum each year from an exemption of fifty 25 per centum of the exemption base. 26 (4) The term "exemption base" shall mean the difference between the 27 final assessed value of the property as determined upon completion of 28 the construction or reconstruction work and the lesser of (i) the 29 assessed value of the property at the time an application for certif- 30 icate of eligibility pursuant to this part is made, or (ii) the assessed 31 value as may thereafter be reduced pursuant to application to the tax 32 commission. 33 The tax exemption shall be computed according to the following tables: 34 CONSTRUCTION OR RECONSTRUCTION OF INDUSTRIAL STRUCTURES OR 35 RECONSTRUCTION OF AS OF RIGHT OR SPECIALLY NEEDED COMMERCIAL STRUCTURES 36 ======================================================================== 37 Year following 38 completion Percentage 39 of work of exemption 40 ------------------------------------------------------------------------ 41 1...........................................95 42 2...........................................90 43 3...........................................85 44 4...........................................80 45 5...........................................75 46 6...........................................70 47 7...........................................65 48 8...........................................60 49 9...........................................55 50 10...........................................50 51 11...........................................45 52 12...........................................40 53 13...........................................35S. 8474 235 1 14...........................................30 2 15...........................................25 3 16...........................................20 4 17...........................................15 5 18...........................................10 6 19........................................... 5 7 ======================================================================== 8 RECONSTRUCTION OF OTHER COMMERCIAL STRUCTURES OR CONSTRUCTION OF AS OF 9 RIGHT OR SPECIALLY NEEDED COMMERCIAL STRUCTURES 10 ======================================================================== 11 Year following 12 completion of Percentage 13 work of exemption 14 ------------------------------------------------------------------------ 15 1..........................................50 16 2..........................................45 17 3..........................................40 18 4..........................................35 19 5..........................................30 20 6..........................................25 21 7..........................................20 22 8..........................................15 23 9..........................................10 24 10.......................................... 5 25 ======================================================================== 26 CONSTRUCTION OF OTHER NEW COMMERCIAL STRUCTURES 27 ======================================================================== 28 Year following 29 completion of Percentage 30 work of exemption 31 ------------------------------------------------------------------------ 32 1..........................................50 33 2..........................................40 34 3..........................................30 35 4..........................................20 36 5..........................................10 37 ======================================================================== 38 b. The taxes payable during the period from the issuance of a certif- 39 icate of eligibility to the approval of the tax exemption pursuant to 40 section 11-252 of this part shall be paid on the lesser of: 41 (1) the assessed value of the property at the time an application for 42 a certificate of eligibility pursuant to this part is made, or 43 (2) the assessed value as may thereafter be reduced pursuant to appli- 44 cation to the tax commission, provided, however, that if reconstruction 45 or construction is not completed in accordance with the plans approved 46 in the certificate of eligibility including any amendments thereto, 47 taxes shall be due and payable retroactively as otherwise required by 48 law. 49 c. In all cases where the board shall have issued a certificate of 50 eligibility prior to January first, nineteen hundred eighty-two, the 51 exemption percentage shall apply to any subsequent increase in theS. 8474 236 1 assessed valuation of the property during the tenure of the exemption. 2 Where the board has issued a certificate of eligibility on or after 3 January first, nineteen hundred eighty-two, the exemption percentage 4 shall apply to any subsequent increase in the assessed valuation of the 5 property during the first two years after approval of the tax exemption 6 pursuant to section 11-252 of this part. Commencing two years after 7 approval of the tax exemption pursuant to section 11-252 of this part, 8 the exemption percentage shall apply to any subsequent increase in 9 assessed valuation of the property only to the extent such increase is 10 attributable to the construction or reconstruction work approved in the 11 certificate of eligibility. 12 d. The provisions of this part shall not apply to any increase in 13 assessed value resulting from the construction or reconstruction of a 14 residential structure on any property receiving an exemption under the 15 provisions of this part. The provisions of this part shall apply exclu- 16 sively to those structures and the lands underlying them which were 17 identified explicitly in the certificate of eligibility. 18 e. The provisions of this part shall not apply if any new or rehabili- 19 tated construction displaces or replaces a building or buildings 20 containing more than twenty-five occupied dwelling units in existence on 21 the date an application for certificate of eligibility is submitted for 22 preliminary approval pursuant to section 11-251 of this part, which are 23 administered under the local emergency housing rent control act, the 24 rent stabilization law of nineteen hundred sixty-nine or the emergency 25 tenant protection act of nineteen seventy-four, or their successor stat- 26 utes applicable to the city of Staten Island, unless a certificate of 27 eviction has been issued for any of the displaced or replaced units 28 pursuant to the powers granted by the city rent and rehabilitation law. 29 f. The provisions of this part shall not apply to an applicant who 30 has commenced construction or reconstruction work prior to the granting 31 of a certificate of eligibility except where applicant, having filed an 32 application for a certificate of eligibility, receives written permis- 33 sion to commence from the board or its designated representative prior 34 to the granting of a certificate of eligibility. Demolition of existing 35 structures, site preparation limited to grading, filling or clearing, or 36 the curing of a safety or sanitary hazard shall not be deemed to be 37 commencement of construction or reconstruction work. 38 g. Any property enjoying the benefits of a tax exemption approved by 39 the board shall be ineligible for any subsequent or additional tax 40 exemption pursuant to the provisions of this part until the expiration 41 of the original exemption period or earlier termination of the existing 42 exemption by action of the tax commission. 43 § 11-251 Applications for certificates of eligibility. a. Applica- 44 tions for a certificate of eligibility pursuant to this part shall be 45 submitted for preliminary approval to the office for economic develop- 46 ment commencing immediately after March first, nineteen hundred eighty- 47 two and continuing until the thirty-first of January, nineteen hundred 48 eighty-six, on such form or forms as shall be prescribed by the board. 49 In addition to any other information required by the board, the applica- 50 tion shall include plans for reconstruction or construction that have 51 been certified by a professional engineer or an architect of the appli- 52 cant's choice and cost estimates or bids for the proposed reconstruction 53 or construction. Upon a finding by such office that the application 54 satisfies the requirements of reconstruction or construction as defined 55 in this part, the application shall be presented to the board for evalu-S. 8474 237 1 ation and written notice thereof shall be given to the community board 2 of the district in which the application site is located. 3 b. (1) In the case of an application for construction or recon- 4 struction of an industrial structure or a commercial structure located 5 in an area designated as of right, the board shall issue a certificate 6 of eligibility upon determining that the application satisfies the 7 requirements of construction or reconstruction as defined in this part, 8 that the applicant has obtained plans for construction or reconstruction 9 certified by a professional engineer or architect, and that the appli- 10 cant has otherwise complied with the provisions of this part and other 11 applicable provisions of law. 12 (2) In the case of an application for construction or reconstruction 13 of a commercial structure not located in an as of right area, or involv- 14 ing a restricted commercial use, the board shall issue a certificate of 15 eligibility upon making the determination specified in paragraph one of 16 this subdivision and upon making the further determination that the 17 granting of a tax exemption for the construction or reconstruction of 18 such a structure in the proposed location is in the public interest. In 19 making such determination, the board shall make findings that there is a 20 need in the area for the services the enterprise will provide, that the 21 enterprise will generate or retain employment in the area, and that a 22 tax incentive is required to attract construction or reconstruction of 23 such a structure to the area. In addition, the board shall consider the 24 economic impact such commercial structure will have in the area. 25 (3) In the case of an application for construction or reconstruction 26 of a commercial structure not located in an as of right area, or involv- 27 ing a restricted commercial use, the board may make a further determi- 28 nation that special circumstances warrant designating the proposed 29 construction or reconstruction as "specially needed". In making such 30 determination, the board shall make findings that the commercial 31 services to be provided will have an especially positive impact on the 32 area's or the city's economy and that the applicant has demonstrated 33 that the project cannot go forward without the greater exemption granted 34 by such designation. 35 c. Any meeting of the board at which an application for a certificate 36 of eligibility is to be considered shall be open to the public, and 37 notice of such meeting shall be given at least two weeks prior thereto 38 by publication in a newspaper of general circulation within the city. 39 d. The burden of proof shall be on the applicant to show by clear and 40 convincing evidence that the requirements for granting a tax exemption 41 pursuant to this part have been satisfied, and the board shall have the 42 authority to require that statements made in consideration of the appli- 43 cation be taken under oath. 44 e. After the issuance of a certificate of eligibility the applicant 45 shall apply to the city tax commission, during the period provided by 46 law for filing applications for corrections of assessed valuations, for 47 a tax exemption as provided for in section 11-250 of this part. The 48 application shall be accompanied by a copy of the certificate of eligi- 49 bility. 50 § 11-252 Approval of tax exemption. On completion of the recon- 51 struction or construction work the applicant shall notify the board in 52 writing of said completion. The board shall determine the eligibility 53 of the applicant for the tax exemption as provided in section 11-250 of 54 this part and shall notify the tax commission of such determination. If 55 the applicant is determined to be qualified the commission shall approve 56 the tax exemption.S. 8474 238 1 § 11-253 Continuation of tax exemption; termination of tax exemption. 2 The tax exemption approved by the board shall continue in accordance 3 with this part, provided that the applicant files an annual certificate 4 of continuing use stating that the structure and property continue to be 5 used for the industrial or commercial purposes justifying the issuance 6 of the certificate of eligibility. The certificate of continuing use 7 shall be filed with the tax commission on such form or forms and 8 containing such information as shall be prescribed by the tax commis- 9 sion. The tax commission shall have authority to terminate a tax 10 exemption on failure of an applicant to file an annual certificate of 11 continuing use or on the recommendation of the commissioner of finance 12 who, in reviewing the certificate filed by an applicant, has determined 13 that the structure or property has ceased to be used for the industrial 14 or commercial purposes justifying the issuance of the certificate of 15 eligibility. 16 § 11-254 Extension of time for completion. Where an applicant has 17 received a certificate of eligibility but has not completed or will not 18 be able to complete the construction or reconstruction work within thir- 19 ty-six months, the board shall, upon application, extend to forty-eight 20 months, from the time of issuance of such certificate, the time for 21 completion of the construction or reconstruction work; provided the 22 applicant has completed not less than two-thirds of the work as speci- 23 fied in the certified plans previously filed with the application at the 24 time of such application for extension. 25 § 11-255 Prior certificates of eligibility. Any project for which a 26 certificate of eligibility has been approved by the board prior to the 27 enactment of this section shall be eligible for a tax exemption computed 28 according to the tax exemption tables and formulae in effect on the date 29 of such approval. 30 PART 4 31 TAX EXEMPTION AND DEFERRAL OF TAX 32 PAYMENT FOR CERTAIN 33 INDUSTRIAL AND COMMERCIAL PROPERTIES 34 § 11-256 Definitions. When used in this part: 35 a. "Applicant" means any person obligated to pay real property taxes 36 on the property for which an exemption from or abatement or deferral of 37 real property tax payments is sought, or in the case of exempt property, 38 the record owner or lessee thereof. 39 b. "Approved plans" means plans submitted to and approved by the 40 department of buildings in connection with the applicant's building 41 permit, including any amendments to such plans approved by such depart- 42 ment before final inspection of the work for which such permit was 43 issued. 44 c. "Benefit period" means the period of time when a recipient is 45 eligible to receive benefits pursuant to this part including in the case 46 of a recipient of a certificate of eligibility for commercial 47 construction work in a deferral area, the period of time when tax 48 payments are to be deferred, the interim period when no tax payments are 49 to be deferred and no deferred tax payments are required to be made, and 50 the period of time when the deferred tax payments are to be made. 51 d. "Commission" means the temporary commercial incentive area boundary 52 commission. 53 e. "Commercial construction work" means the construction of a new 54 building or structure, or portion thereof, or the modernization, reha-S. 8474 239 1 bilitation, expansion, or other improvement of an existing building or 2 structure, or portion thereof, for use as commercial property. 3 f. "Commercial property" means nonresidential property: (1) on which 4 will exist after completion of commercial construction work, a building 5 or structure used for the buying, selling or otherwise providing of 6 goods or services including hotel services, or for other lawful busi- 7 ness, commercial or manufacturing activities; and (2) (a) where, except 8 as provided in subparagraph (b) of this paragraph and paragraph (3) of 9 this subdivision, not more than fifteen per centum of the total net 10 square footage of any building or structure on such property was used 11 for manufacturing activities at any one or more times during the twen- 12 ty-four months immediately preceding the date of application for a 13 certificate of eligibility or (b) where not more than fifteen per centum 14 of the total net square footage of any building or structure on such 15 property was used for manufacturing activities at any one or more times 16 during the sixty months immediately preceding the date of application 17 for a certificate of eligibility if such property is located, in whole 18 or in part, in the area in the borough of Manhattan lying south of the 19 center line of 96th Street; and (3) in the commercial revitalization 20 area, and with respect to an application for a certificate of eligibil- 21 ity filed on or after July first, two thousand, "commercial property" 22 means nonresidential property on which will exist after completion of 23 commercial construction work, a building or structure used for the 24 buying, selling or otherwise providing of goods or services including 25 hotel services, or for other lawful business, commercial or manufactur- 26 ing activities. 27 f-1. "Commercial revitalization area" means any district that is zoned 28 C4, C5, C6, M1, M2 or M3 in accordance with the zoning resolution in any 29 area of the city. 30 g. "Deferral area" means an area in which deferral of payment of real 31 property taxes in accordance with section 11-257 of this part shall be 32 available to a recipient who has performed commercial construction work. 33 h. "Excluded area" means each area specified in paragraphs (1), (2) 34 and (3) of subdivision d of section 11-258 of this part. 35 i. "Exemption base". (1) For purposes of computing the exemption 36 pursuant to subdivision a, b, c or d of section 11-257 of this part, 37 "exemption base" shall mean, with respect to property that is the 38 subject of a certificate of eligibility with an effective date of June 39 thirtieth, nineteen hundred ninety-two or before: (a) for the first, 40 second and third taxable years following the effective date of a certif- 41 icate of eligibility, the assessed value of improvements made since the 42 effective date of such certificate which are attributable exclusively to 43 commercial or industrial construction work described in approved plans; 44 and (b) for all other years, the assessed value of such improvements 45 which have been made before the fourth taxable status date following the 46 effective date of such certificate. 47 (2) For purposes of computing the exemption pursuant to subdivision c, 48 d or e of section 11-257 of this part, "exemption base" shall mean, with 49 respect to property that is the subject of a certificate of eligibility 50 with an effective date of July first, nineteen hundred ninety-two or 51 after: (a) for the first through fifth taxable years following the 52 effective date of a certificate of eligibility, the assessed value of 53 improvements made since the effective date of such certificate which are 54 attributable exclusively to commercial or renovation construction work 55 described in approved plans; and (b) for all other years, the assessedS. 8474 240 1 value of such improvements which have been made before the sixth taxable 2 status date following the effective date of such certificate. 3 (3) For purposes of computing the exemption pursuant to subdivision a 4 or b of section 11-257 of this part, "exemption base" shall mean, with 5 respect to property that is the subject of a certificate of eligibility 6 with an effective date of July first, nineteen hundred ninety-two or 7 after: (a) for the first through fifth taxable years following the 8 effective date of a certificate of eligibility, the assessed value of 9 improvements made since the effective date of such certificate which are 10 attributable exclusively to commercial or industrial construction work 11 described in approved plans plus any equalization increases or minus any 12 equalization decreases in the assessed value of the property so improved 13 (excluding the land) occurring subsequent to the effective date of such 14 certificate; and (b) for all other years, the assessed value of such 15 improvements made before the sixth taxable status date following the 16 effective date of such certificate plus any equalization increases or 17 minus any equalization decreases in the assessed value of the property 18 so improved (excluding the land) occurring subsequent to the effective 19 date of such certificate but before the fourteenth taxable status date 20 following the effective date of such certificate. For purposes of the 21 preceding sentence: no adjustment shall be made to the assessed value of 22 the improvements referred to in subparagraphs (a) and (b) of this para- 23 graph for any portion of an equalization increase or decrease which is 24 being phased in pursuant to section eighteen hundred five of the real 25 property tax law subsequent to the effective date of the certificate of 26 eligibility if such increase or decrease occurred prior to such effec- 27 tive date; with respect to any taxable year, an adjustment for an equal- 28 ization increase or decrease shall reflect only the portion of such 29 increase or decrease which is being phased in during such taxable year 30 or which was phased in during a prior taxable year; no adjustment for an 31 equalization decrease shall reduce the exemption base to an amount less 32 than the assessed value of the improvements referred to in subparagraphs 33 (a) and (b) of this paragraph, and, to the extent that any such decrease 34 would reduce the exemption base below such amount, such decrease shall 35 reduce the taxable portion of the assessed value; and no adjustment 36 shall be made for an equalization increase or decrease if the improve- 37 ments referred to in subparagraphs (a) and (b) of this paragraph do not 38 result in a physical increase in the assessed value of the property. 39 (4) Notwithstanding paragraph one of this subdivision, for purposes of 40 computing the exemption pursuant to subdivision a of section 11-257 of 41 this part, "exemption base" shall mean, with respect to industrial prop- 42 erty that is located in the area in Staten Island; and that is the 43 subject of a certificate of eligibility with an effective date after 44 December thirty-first, nineteen hundred eighty-nine and before July 45 first, nineteen hundred ninety-two: (a) for the first, second and third 46 taxable years following the effective date of a certificate of eligibil- 47 ity, the assessed value of improvements made since the effective date of 48 such certificate which are attributable exclusively to industrial 49 construction work described in approved plans; and (b) for all other 50 years, the assessed value of such improvements made before the fourth 51 taxable status date following the effective date of such certificate 52 plus any equalization increases or minus any equalization decreases in 53 the assessed value of the property so improved (excluding the land) 54 occurring subsequent to the fourth taxable status date following the 55 effective date of such certificate but before the fourteenth taxable 56 status date following the effective date of such certificate. ForS. 8474 241 1 purposes of the preceding sentence: no adjustment shall be made to the 2 assessed value of the improvements referred to in subparagraphs (a) and 3 (b) of this paragraph for any portion of an equalization increase or 4 decrease which is being phased in pursuant to section eighteen hundred 5 five of the real property tax law subsequent to the effective date of 6 the certificate of eligibility if such increase or decrease occurred 7 prior to such effective date; with respect to any taxable year, an 8 adjustment for an equalization increase or decrease shall reflect only 9 the portion of such increase or decrease which is being phased in during 10 such taxable year or which was phased in during a prior taxable year; no 11 adjustment for an equalization decrease shall reduce the exemption base 12 to an amount less than the assessed value of the improvements referred 13 to in subparagraphs (a) and (b) of this paragraph, and, to the extent 14 that any such decrease would reduce the exemption base below such 15 amount, such decrease shall reduce the taxable portion of the assessed 16 value; and no adjustment shall be made for an equalization increase or 17 decrease if the improvements referred to in subparagraphs (a) and (b) of 18 this paragraph do not result in a physical increase in the assessed 19 value of the property. 20 (5) For purposes of computing the exemption: (a) pursuant to subdivi- 21 sion e.1 of section 11-257 of this part, "exemption base" shall mean, 22 with respect to property that is the subject of a certificate of eligi- 23 bility with an effective date of July first, nineteen hundred ninety- 24 five or after and that is located in the new construction exemption area 25 specified in paragraph one of subdivision e of section 11-258 of this 26 part: for any taxable year following the effective date of a certificate 27 of eligibility, the assessed value of improvements made since the effec- 28 tive date of such certificate which are attributable exclusively to the 29 construction of a new building or structure that meets the requirements 30 set forth in subdivision i of section 11-259 of this part as described 31 in approved plans, provided such improvements are made within thirty-six 32 months of the effective date of such certificate or by December thirty- 33 first, nineteen hundred ninety-nine, whichever is earlier; and (b) 34 pursuant to subdivision e.1 of section 11-257 of this part, "exemption 35 base" shall mean, with respect to property that is the subject of a 36 certificate of eligibility with an effective date of July first, nine- 37 teen hundred ninety-five or after and that is located in the new 38 construction exemption area specified in paragraph two of subdivision e 39 of section 11-258 of this part: for any taxable year following the 40 effective date of a certificate of eligibility, the assessed value of 41 improvements made since the effective date of such certificate which are 42 attributable exclusively to the construction of a new building or struc- 43 ture that meets the requirements set forth in subdivision i of section 44 11-259 of this part as described in approved plans, provided such 45 improvements are made within forty-two months of the effective date of 46 such certificate. 47 (6) For purposes of this subdivision "equalization increase or 48 decrease" means an increase or decrease in the assessed value of proper- 49 ty which is not attributable to construction work, fire, demolition, 50 destruction or other change in the physical characteristics of the prop- 51 erty (excluding gradual physical deterioration or obsolescence), or to a 52 change in the description or boundaries of the property. 53 j. "Industrial construction work" means the construction of a new 54 building or structure or the modernization, rehabilitation, expansion or 55 improvement of an existing building or structure for use as industrial 56 property.S. 8474 242 1 k. "Industrial property" means nonresidential property on which will 2 exist after completion of industrial construction work a building or 3 structure wherein at least seventy-five per centum of the total net 4 square footage is used or immediately available and held out for use for 5 manufacturing activities involving the assembly of goods or the fabri- 6 cation or processing of raw materials. 7 l. "Initial assessed value" means the lesser of: (1) the taxable 8 assessed value of real property appearing on the books of the annual 9 record of the assessed valuation of real property on the effective date 10 of a recipient's certificate of eligibility; or (2) the assessed value 11 to which such assessment is thereafter reduced pursuant to application 12 to the tax commission or court order. Where the real property is used 13 for both residential and nonresidential purposes on the effective date 14 of such certificate of eligibility, the initial assessed value of such 15 real property, determined as provided in the preceding sentence, shall 16 be apportioned between the residential and nonresidential portions ther- 17 eof in such manner as shall properly reflect the initial assessed value 18 of each such portion. Such apportionment shall be in accordance with 19 rules promulgated by the department of finance. 20 m. "Manufacturing activity" means an activity involving the assembly 21 of goods or the fabrication or processing of raw materials. 22 n. "Minimum required expenditure" means expenditure for commercial, 23 renovation or industrial construction work in an amount equal to twenty 24 per centum of the initial assessed value; provided, however, that with 25 respect to a recipient who filed an application on or after July first, 26 nineteen hundred ninety-five for a certificate of eligibility for indus- 27 trial construction work or for commercial construction work in a special 28 exemption area or a regular exemption area, minimum required expenditure 29 means expenditure for such work in an amount equal to ten per centum of 30 the initial assessed value; provided, however, that with respect to a 31 recipient who filed an application on or after July first, nineteen 32 hundred ninety-five for a certificate of eligibility for industrial 33 construction work and for the purpose of receiving an abatement of real 34 property taxes in accordance with paragraph (3) of subdivision a of 35 section 11-257 of this part, minimum required expenditure means expendi- 36 ture for such work in an amount equal to twenty-five per centum of the 37 initial assessed value; and provided further that if the department of 38 finance, after consultation with the deputy mayor for finance and 39 economic development, determines that a greater expenditure is required 40 to encourage significant industrial and commercial development it may 41 establish by rule a higher percentage of initial assessed value, not to 42 exceed fifty per centum thereof, as the minimum required expenditure. 43 Expenditure for residential construction work shall not be included in 44 the minimum required expenditure; provided, however, that for mixed-use 45 property, expenditures for construction work related to the common areas 46 and systems of such property shall be allocated, in accordance with 47 rules promulgated by the department of finance, between the residential 48 and nonresidential portions of the property. If real property was used 49 for both residential and nonresidential purposes on the effective date 50 of the certificate of eligibility, the initial assessed value of such 51 real property, for purposes of this subdivision, shall be the initial 52 assessed value apportioned to the nonresidential portions thereof. 53 o. "Person" means an individual, corporation, partnership, associ- 54 ation, agency, trust, estate, foreign or domestic government or subdivi- 55 sion thereof, or other entity.S. 8474 243 1 p. "Recipient" means an applicant to whom a certificate of eligibility 2 has been issued pursuant to this part, or the successor in interest of 3 such applicant, provided that where a person who has entered into a 4 lease or purchase agreement with the owner or lessee of exempt property 5 has been a co-applicant, such person or the successor in interest of 6 such person shall be the recipient. 7 q. "Regular exemption area" means an area in which a regular exemption 8 from taxes in accordance with section 11-257 of this part shall be 9 available to a recipient who performs commercial construction work. 10 r. "Residential construction work" means any construction, moderniza- 11 tion, rehabilitation, expansion or improvement of dwelling units other 12 than dwelling units in a hotel. 13 s. "Residential property" means property, other than property used for 14 hotel purposes, on which exists, or will exist upon completion of 15 construction work, a building or structure used for residential 16 purposes. 17 t. "Restricted activity" means any entertainment activity which the 18 department of finance has identified in regulations promulgated pursuant 19 to this part as an activity which, in the public interest, should not be 20 encouraged through the benefits of this part. 21 u. "Special exemption area" means an area in which the commission has 22 determined that a special exemption from real property taxes in accord- 23 ance with subdivision b of section 11-257 of this part shall be avail- 24 able to a recipient who performs commercial construction work and, in 25 addition, means the area specified in paragraph four of subdivision c of 26 section 11-258 of this part. 27 v. "Mixed-use property" means property on which exists, or will exist 28 upon completion of construction work, a building or structure used for 29 both residential and nonresidential purposes. 30 w. "Renovation construction work" means the modernization, rehabili- 31 tation, expansion or improvement of an existing building or structure, 32 or portion thereof, for use as commercial property in a renovation 33 exemption area where such modernization, rehabilitation, expansion or 34 improvement is physically and functionally integrated with the existing 35 building or structure, or portion thereof, does not increase the bulk of 36 the existing building or structure by more than thirty per centum and 37 does not increase the height of the existing building or structure by 38 more than thirty per centum. 39 x. "Renovation exemption area" means the area specified in paragraph 40 (4) of subdivision d of section 11-258 of this part in which a reno- 41 vation exemption from taxes in accordance with subdivision e of section 42 11-257 of this part shall be available to a recipient who performs reno- 43 vation construction work. 44 y. "New construction exemption areas" means the areas specified in 45 subdivision e of section 11-258 of this part in which an exemption from 46 real property taxes in accordance with subdivision e.1 of section 11-257 47 of this part shall be available to a recipient who constructs a new 48 building or structure that meets the requirements set forth in subdivi- 49 sion i of section 11-259 of this part. 50 § 11-257 Real property tax exemption; deferral of tax payments. The 51 city shall be divided into six classes of areas as provided in this part 52 and pursuant to designation of areas to be made by the temporary commer- 53 cial incentive area boundary commission. Within such areas, the follow- 54 ing benefits shall be available to qualified recipients: 55 a. (1) A recipient who, following the effective date of a certificate 56 of eligibility, has performed industrial construction work in any areaS. 8474 244 1 of the city shall be eligible for an exemption from real property taxes 2 as follows: For the first thirteen tax years, the recipient shall be 3 exempt from taxation on one hundred per centum of the exemption base. 4 For the following nine tax years, the recipient shall be exempt from 5 taxation on a percentage of the exemption base beginning at ninety per 6 centum thereof in the fourteenth tax year and decreasing by ten per 7 centum of said exemption base each year. 8 The following table shall illustrate the computation of the exemption 9 for industrial construction work: 10 Tax year following effective 11 date of certificate 12 of eligibility: Amount of exemption: 13 1 through 13 ............. Tax on 100% of exemption base 14 14 ........................ Tax on 90% of exemption base 15 15 ........................ Tax on 80% of exemption base 16 16 ........................ Tax on 70% of exemption base 17 17 ........................ Tax on 60% of exemption base 18 18 ........................ Tax on 50% of exemption base 19 19 ........................ Tax on 40% of exemption base 20 20 ........................ Tax on 30% of exemption base 21 21 ........................ Tax on 20% of exemption base 22 22 ........................ Tax on 10% of exemption base 23 (2) Notwithstanding paragraph one of this subdivision, a recipient who 24 filed an application for a certificate of eligibility for industrial 25 construction work in any area of such city on or after July first, nine- 26 teen hundred ninety-five, and who, following the effective date of such 27 certificate of eligibility, has performed such industrial construction 28 work shall be eligible for an exemption from real property taxes as 29 follows: for the first sixteen tax years, the recipient shall be exempt 30 from taxation on one hundred per centum of the exemption base. For the 31 following nine tax years, the recipient shall be exempt from taxation on 32 a percentage of the exemption base beginning at ninety per centum there- 33 of in the seventeenth tax year and decreasing by ten per centum of said 34 exemption base each year. 35 The following table shall illustrate the computation of the exemption 36 for industrial construction work pursuant to this paragraph: 37 Tax year following effective 38 date of certificate of 39 eligibility: Amount of exemption: 40 1 through 16.............. Tax on 100% of exemption base 41 17 ........................ Tax on 90% of exemption base 42 18 ........................ Tax on 80% of exemption base 43 19 ........................ Tax on 70% of exemption base 44 20 ........................ Tax on 60% of exemption base 45 21 ........................ Tax on 50% of exemption base 46 22 ........................ Tax on 40% of exemption base 47 23 ........................ Tax on 30% of exemption base 48 24 ........................ Tax on 20% of exemption base 49 25 ........................ Tax on 10% of exemption base 50 (3)(a) A recipient who filed an application for a certificate of 51 eligibility for industrial construction work in any area of such city on 52 or after July first, nineteen hundred ninety-five, and who, followingS. 8474 245 1 the effective date of such certificate of eligibility, both commenced 2 and completed such work, shall be eligible for an abatement of real 3 property taxes as follows: for the first tax year immediately following 4 completion of such work, and for the second, third and fourth tax years 5 following completion of such work, the abatement shall equal fifty per 6 centum of the real property tax that was imposed on the property which 7 is the subject of the certificate of eligibility for the tax year imme- 8 diately preceding the effective date of such certificate of eligibility, 9 provided, however, that if such property was fully or partially exempt 10 from real property taxes during such tax year, then the abatement shall 11 equal fifty per centum of the real property tax that would have been 12 imposed on such property but for such full or partial exemption. For the 13 fifth and sixth tax years, the abatement shall equal forty per centum of 14 such amount; for the seventh and eighth tax years, the abatement shall 15 equal thirty per centum of such amount; for the ninth and tenth tax 16 years, the abatement shall equal twenty per centum of such amount; and 17 for the eleventh and twelfth tax years, the abatement shall equal ten 18 per centum of such amount. Notwithstanding any inconsistent provision of 19 this paragraph, a recipient shall not be eligible for an abatement for 20 the first tax year following completion of such work, unless the recipi- 21 ent submits proof satisfactory to the department of finance that such 22 work was completed on or before the taxable status date for such first 23 tax year no later than thirty days after such taxable status date. Where 24 the recipient fails to submit such proof in accordance with the forego- 25 ing sentence, a recipient shall not be eligible for an abatement until 26 the second tax year following completion of such work. In such case, a 27 recipient shall submit proof satisfactory to the department of finance 28 that such work was completed on or before the taxable status date for 29 such first tax year no later than thirty days after the taxable status 30 date for such second tax year. A recipient whose abatement begins in the 31 second tax year following completion of such work shall not thereby have 32 his or her twelve-year benefit period shortened. 33 The following table shall illustrate the computation of the abatement 34 for industrial construction work pursuant to this paragraph: 35 Tax year following completion 36 of industrial construction 37 work: Amount of abatement: 38 1 ...................................................50% 39 2 ...................................................50% 40 3 ...................................................50% 41 4 ...................................................50% 42 5 ...................................................40% 43 6 ...................................................40% 44 7 ...................................................30% 45 8 ...................................................30% 46 9 ...................................................20% 47 10 ..................................................20% 48 11 ..................................................10% 49 12 ..................................................10% 50 (b) If, due to a determination of the department of finance or tax 51 commission of such city or a court, the real property tax imposed on 52 such property for the tax year immediately preceding the effective date 53 of such certificate of eligibility is changed, then any abatement that 54 was granted in accordance with this paragraph prior to such reductionS. 8474 246 1 shall be recalculated and any abatement to be granted in accordance with 2 this paragraph shall be based on the real property tax imposed on such 3 property for the tax year immediately preceding the effective date of 4 such certificate of eligibility, as changed by such determination. The 5 amount equal to the difference between the abatement originally granted 6 and the abatement as so recalculated shall be deducted from any refund 7 otherwise payable or remission otherwise due as a result of a change due 8 to such determination, and any balance of such amount remaining unpaid 9 after making any such deduction shall be paid to the department of 10 finance within thirty days from the date of mailing by the department of 11 finance of a notice of the amount payable. Such amount payable shall 12 constitute a tax lien on such property as of the date of such notice 13 and, if not paid within such thirty-day period, penalty and interest at 14 the rate applicable to delinquent taxes on such property shall be 15 charged and collected on such amount from the date of such notice to the 16 date of payment. 17 (c) No property which is the subject of a certificate of eligibility 18 pursuant to this part shall receive more than one abatement pursuant to 19 this part and no abatement shall exceed one consecutive twelve-year 20 period as specified in subparagraph (a) of this paragraph. 21 (d) In no event shall an abatement granted pursuant to this part 22 exceed in any tax year the real property taxes imposed on the property 23 which is the subject of a certificate of eligibility pursuant to this 24 part. 25 (e) For the purpose of calculating an abatement of real property taxes 26 pursuant to this part, where a tax lot contains more than one building 27 or structure and not all of the buildings or structures comprising such 28 tax lot are the subject of a certificate of eligibility for industrial 29 construction work pursuant to this part, the real property taxes imposed 30 on such tax lot for the year immediately preceding the effective date of 31 such certificate of eligibility shall be apportioned among the build- 32 ings, structures and land comprising such tax lot and only such real 33 property taxes as are allocable to the property which is the subject of 34 the certificate of eligibility pursuant to this part shall be abated in 35 accordance with this paragraph. Such apportionment shall be in accord- 36 ance with rules promulgated by the department of finance. 37 (f) A recipient who filed an application for a certificate of eligi- 38 bility for industrial construction work in the commercial revitalization 39 area on or after July first, two thousand, and who, following the effec- 40 tive date of such certificate of eligibility, both commenced and 41 completed such work, shall be eligible for an abatement of real property 42 taxes in accordance with subparagraph (a) of this paragraph, provided, 43 however, that where the total net square footage of the industrial prop- 44 erty used or immediately available and held out for use for manufactur- 45 ing activities involving the assembly of goods or the fabrication or 46 processing of raw materials is less than seventy-five per centum of the 47 total net square footage of the industrial property, the abatement of 48 real property taxes shall be determined in accordance with rules promul- 49 gated by the department of finance. Notwithstanding the foregoing 50 sentence, no such abatement shall be allowed where the total net square 51 footage of the industrial property used or immediately available and 52 held out for use for such manufacturing activities after completion of 53 industrial construction work is less than the total net square footage 54 used or immediately available and held out for use for such manufactur- 55 ing activities before the commencement of such construction work. For 56 purposes of this subparagraph only, the term "industrial constructionS. 8474 247 1 work" shall mean the modernization, rehabilitation, expansion or 2 improvement of an existing building or structure for use as industrial 3 property and the term "industrial property" shall mean nonresidential 4 property on which will exist after completion of industrial construction 5 work a building or structure wherein at least twenty-five per centum of 6 the total net square footage is used or immediately available and held 7 out for use for manufacturing activities involving the assembly of goods 8 or the fabrication or processing of raw materials. 9 b. (1) A recipient who, following the effective date of a certificate 10 of eligibility, has performed commercial construction work in a special 11 exemption area shall be eligible for an exemption from real property 12 taxes as follows: For the first thirteen tax years, the recipient shall 13 be exempt from taxation on one hundred per centum of the exemption base. 14 For the following nine tax years, the recipient shall be exempt from 15 taxation on a percentage of the exemption base beginning at ninety per 16 centum thereof in the fourteenth tax year and decreasing by ten per 17 centum of said exemption base each year. 18 The following table shall illustrate the computation of the exemption 19 for commercial construction work in a special exemption area: 20 Tax year following effective 21 date of certificate 22 of eligibility: Amount of exemption: 23 1 through 13 ............. Tax on 100% of exemption base 24 14 ........................ Tax on 90% of exemption base 25 15 ........................ Tax on 80% of exemption base 26 16 ........................ Tax on 70% of exemption base 27 17 ........................ Tax on 60% of exemption base 28 18 ........................ Tax on 50% of exemption base 29 19 ........................ Tax on 40% of exemption base 30 20 ........................ Tax on 30% of exemption base 31 21 ........................ Tax on 20% of exemption base 32 22 ........................ Tax on 10% of exemption base 33 (2) Notwithstanding paragraph one of this subdivision, a recipient who 34 filed an application for a certificate of eligibility for commercial 35 construction work in a special exemption area on or after July first, 36 nineteen hundred ninety-five, and who, following the effective date of 37 such certificate of eligibility, has performed such commercial 38 construction work shall be eligible for an exemption from real property 39 taxes as follows: For the first sixteen tax years, the recipient shall 40 be exempt from taxation on one hundred per centum of the exemption base. 41 For the following nine tax years, the recipient shall be exempt from 42 taxation on a percentage of the exemption base beginning at ninety per 43 centum thereof in the seventeenth tax year and decreasing by ten per 44 centum of said exemption base each year. 45 The following table shall illustrate the computation of the exemption 46 for commercial construction work in a special exemption area pursuant to 47 this paragraph: 48 Tax year following effective 49 date of certificate 50 of eligibility: Amount of exemption: 51 1 through 16 ............. Tax on 100% of exemption base 52 17 ........................ Tax on 90% of exemption base 53 18 ........................ Tax on 80% of exemption baseS. 8474 248 1 19 ........................ Tax on 70% of exemption base 2 20 ........................ Tax on 60% of exemption base 3 21 ........................ Tax on 50% of exemption base 4 22 ........................ Tax on 40% of exemption base 5 23 ........................ Tax on 30% of exemption base 6 24 ........................ Tax on 20% on exemption base 7 25 ........................ Tax on 10% of exemption base 8 c. (1) A recipient who, following the effective date of a certificate 9 of eligibility, has performed commercial construction work in a regular 10 exemption area shall be eligible for an exemption from real property 11 taxes as follows: For the first eight tax years, the recipient shall be 12 exempt from taxation on one hundred per centum of the exemption base. 13 For the following four tax years, the recipient shall be exempt from 14 taxation on a percentage of the exemption base beginning at eighty per 15 centum thereof in the ninth tax year and decreasing by twenty per centum 16 of said exemption base each year. 17 The following table shall illustrate the computation of the exemption 18 for commercial construction work in a regular exemption area: 19 Tax year following effective 20 date of certificate 21 of eligibility: Amount of exemption: 22 1 through 8 .............. Tax on 100% of exemption base 23 9 ......................... Tax on 80% of exemption base 24 10 ........................ Tax on 60% of exemption base 25 11 ........................ Tax on 40% of exemption base 26 12 ........................ Tax on 20% of exemption base 27 (2) Notwithstanding paragraph one of this subdivision, a recipient who 28 filed an application for a certificate of eligibility for commercial 29 construction work in a regular exemption area on or after July first, 30 nineteen hundred ninety-five, and who, following the effective date of 31 such certificate of eligibility, has performed such commercial 32 construction work shall be eligible for an exemption from real property 33 taxes as follows: For the first eleven tax years, the recipient shall be 34 exempt from taxation on one hundred per centum of the exemption base. 35 For the following four tax years, the recipient shall be exempt from 36 taxation on a percentage of the exemption base beginning at eighty per 37 centum thereof in the twelfth tax year and decreasing by twenty per 38 centum of said exemption base each year. 39 The following table shall illustrate the computation of the exemption 40 for commercial construction work in a regular exemption area pursuant to 41 this paragraph: 42 Tax year following effective 43 date of certificate 44 of eligibility: Amount of exemption: 45 1 through 11 ............. Tax on 100% of exemption base 46 12 ........................ Tax on 80% of exemption base 47 13 ........................ Tax on 60% of exemption base 48 14 ........................ Tax on 40% of exemption base 49 15 ........................ Tax on 20% of exemption base 50 d. Except as provided in paragraphs two and three of subdivision d of 51 section 11-258 of this part, a recipient who, following the effectiveS. 8474 249 1 date of a certificate of eligibility, has performed commercial 2 construction work in a deferral area shall be eligible for a deferral of 3 tax payments as follows: For the first three tax years following the 4 effective date of a certificate of eligibility, the tax payment on one 5 hundred per centum of the exemption base shall be deferred. For the 6 following four tax years, the tax payment on a percentage of the 7 exemption base beginning at eighty per centum thereof in the fourth tax 8 year and decreasing by twenty per centum each year shall be deferred. 9 The total amount of tax payments deferred pursuant to this part shall be 10 paid subsequently over the course of ten tax years as follows: Commenc- 11 ing in the eleventh tax year following the effective date of the certif- 12 icate of eligibility, through and including the twentieth tax year 13 following such effective date, an amount equal to ten per centum of the 14 total amount of tax payments deferred pursuant to this section shall be 15 added to the amount of tax otherwise assessed and payable in each such 16 tax year on the property subject to such deferral. 17 The following table shall illustrate the computation of deferral and 18 payment of taxes for commercial construction work in a deferral area: 19 Tax year following 20 effective date of 21 certificate of 22 eligibility: Amount of tax payments to be deferred or paid: 23 1 through 3 ......Deferral of tax payment on 100% of the exemption base 24 4 ................ Deferral of tax payment on 80% of the exemption base 25 5 ................ Deferral of tax payment on 60% of the exemption base 26 6 ................ Deferral of tax payment on 40% of the exemption base 27 7 ................ Deferral of tax payment on 20% of the exemption base 28 8 through 10 ..... No tax payments are to be deferred and no deferred 29 tax payments are required to be made 30 11 through 20 .... Payment each year of 10% of total dollar amount of 31 tax payments deferred pursuant to this part 32 e. A recipient who, following the effective date of a certificate of 33 eligibility, has performed renovation construction work in a renovation 34 exemption area shall be eligible for an exemption from real property 35 taxes as follows: For the first eight tax years, the recipient shall be 36 exempt from taxation on one hundred per centum of the exemption base. 37 For the following four tax years, the recipient shall be exempt from 38 taxation on a percentage of the exemption base beginning at eighty per 39 centum thereof in the ninth tax year and decreasing by twenty per centum 40 of said exemption base each year. 41 The following table shall illustrate the computation of the exemption 42 for renovation construction work in a renovation exemption area: 43 Tax year following effective 44 date of certificate 45 of eligibility: Amount of exemption: 46 1 through 8 .............. Tax on 100% of exemption base 47 9 ......................... Tax on 80% of exemption base 48 10 ........................ Tax on 60% of exemption base 49 11 ........................ Tax on 40% of exemption base 50 12 ........................ Tax on 20% of exemption base 51 e.1. A recipient who, following the effective date of a certificate of 52 eligibility, constructs a new building or structure that meets theS. 8474 250 1 requirements set forth in subdivision i of section 11-259 of this part 2 in the new construction exemption area specified in paragraph one, two 3 or three of subdivision e of section 11-258 of this part shall be eligi- 4 ble for an exemption from real property taxes as follows: for the first 5 four tax years, the recipient shall be exempt from taxation on one 6 hundred per centum of the exemption base. For the following four tax 7 years, the recipient shall be exempt from taxation on a percentage of 8 the exemption base beginning at eighty per centum thereof in the fifth 9 tax year and decreasing by twenty per centum of said exemption base each 10 year. 11 The following table shall illustrate the computation of the exemption 12 for the construction of a new building or structure that meets the 13 requirements set forth in subdivision i of section 11-259 of this part 14 in the new construction exemption area specified in paragraph one, two 15 or three of subdivision e of section 11-258 of this part: 16 Tax year following effective 17 date of certificate 18 of eligibility: Amount of exemption: 19 1 through 4 .............. Tax on 100% of exemption base 20 5 ......................... Tax on 80% of exemption base 21 6 ......................... Tax on 60% of exemption base 22 7 ......................... Tax on 40% of exemption base 23 8 ......................... Tax on 20% of exemption base 24 f. There shall be no exemption from or deferral of payment of real 25 property taxes available pursuant to this part to any person who 26 performs commercial or renovation construction work in an excluded area. 27 g. The benefits of this part shall be granted exclusively for indus- 28 trial, commercial or renovation construction work described in approved 29 plans. No benefits shall be granted for residential construction work. 30 Any parcel which is partly located in an excluded area shall be deemed 31 to be entirely located in such area. 32 h. No benefits pursuant to this part shall be granted for work which 33 is the subject of a certificate of eligibility issued pursuant to part 34 three of this subchapter. 35 § 11-258 Temporary commercial incentive area boundary commission; 36 classes of area; excluded areas. a. There shall be a temporary commer- 37 cial incentive area boundary commission to consist of the deputy mayor 38 for economic development and planning, the commissioner of finance, the 39 chair of the city planning commission, the director of management and 40 budget, the borough presidents, the speaker of the city council and a 41 public member appointed by the mayor to serve at the mayor's pleasure. 42 Each member except the public member shall have the power to designate 43 an alternate to represent him or her at commission meetings to exercise 44 all the rights and powers of such member, including the right to vote, 45 provided that such designation be made in writing to the chair of the 46 commission. The deputy mayor for economic development and planning shall 47 be the chair of the commission. Each borough president shall be entitled 48 to vote only on the designation of areas within his or her borough. 49 Commission members who shall be officers or employees of the city shall 50 serve without compensation but shall be reimbursed for expenses neces- 51 sarily incurred in the performance of their duties. Any other commission 52 member shall receive as exclusive compensation for his or her services 53 one hundred dollars per diem, provided, however, that the total compen- 54 sation paid to any such member shall not exceed twelve hundred dollarsS. 8474 251 1 for any calendar year. A majority of members of such commission entitled 2 to vote on a matter shall constitute a quorum for such issue. Decisions 3 shall be made by majority vote of those present entitled to vote on a 4 matter. 5 b. (1) The commission shall meet in nineteen hundred ninety-two, nine- 6 teen hundred ninety-five and nineteen hundred ninety-nine to determine 7 the boundaries of the various areas which it is authorized to designate 8 pursuant to this section. The areas designated by the commission in 9 effect as of December thirty-first, nineteen hundred ninety-one shall 10 remain in effect until the first taxable status date after the city 11 council approves a new designation pursuant to paragraph four of this 12 subdivision. 13 (2) Not later than October first of each year when areas are to be 14 designated, the commission shall publish notice of proposed boundaries 15 of areas to be designated, and the date, not earlier than five nor later 16 than fifteen days following the publication of such notice, on which the 17 commission will hold a public hearing to hear all persons interested in 18 the designation of areas. The notice required by this paragraph shall be 19 published in the City Record and a newspaper of general circulation in 20 the city, and copies thereof shall be forwarded to each council member 21 and community board. 22 (3) The commission shall make such designation, and notify the city 23 council of such designation, not later than November first of each year 24 when areas are to be designated. The designation shall be effective as 25 provided in paragraph four of this subdivision. 26 (4) Within thirty days after the first stated meeting of the city 27 council following the receipt of notice of such designation, the city 28 council may, by majority vote, disapprove such designation. If, within 29 such thirty-day period, the city council fails to act or fails to act by 30 the required vote, the city council shall be deemed to have approved 31 such designation. Such designation shall be effective as of the first 32 taxable status date after the city council approves such designation and 33 shall remain in effect until the first taxable status date after the 34 city council approves a new designation pursuant to this paragraph. 35 c. (1) The commission may designate any area other than the area lying 36 south of the center line of ninety-sixth street in the borough of 37 Manhattan to be a special exemption area if it determines that market 38 conditions in the area are such that the availability of a special 39 exemption is required in order to encourage commercial construction work 40 in such area. In making such determination, the commission shall consid- 41 er, among other factors, the existence in such area of a special need 42 for commercial and job development, high unemployment, economic distress 43 or unusually large numbers of vacant, underutilized, unsuitable or 44 substandard structures, or other substandard, unsanitary, deteriorated 45 or deteriorating conditions, with or without tangible blight. 46 (2) Any area in the city, which the commission has not designated as a 47 special exemption area shall be a regular exemption area. 48 (3) On or after January first, nineteen hundred ninety-two, the 49 commission shall not designate any area to be either a deferral area or 50 an excluded area, nor shall the commission make any new designation in 51 any urban renewal area designated pursuant to article fifteen of the 52 general municipal law so as to reduce the level of benefits available 53 pursuant to this title in such area. 54 (4) Notwithstanding any other provision of this part, any area in the 55 city designated as an empire zone in accordance with article eighteen-b 56 of the general municipal law, which the commission has not designated asS. 8474 252 1 a special exemption area, shall be a special exemption area as of July 2 first, nineteen hundred ninety-five or as of the date of the designation 3 of such area as an empire zone, whichever is later. 4 § 11-259 Eligibility for benefits. a. A recipient of a certificate of 5 eligibility with an effective date of June thirtieth, nineteen hundred 6 ninety-two or before must make one-half the minimum required expenditure 7 within eighteen months of the effective date of such recipient's certif- 8 icate of eligibility, and make the minimum required expenditure within 9 thirty-six months of the effective date of such certificate to be eligi- 10 ble to receive the benefits of this part. A recipient of a certificate 11 of eligibility with an effective date of July first, nineteen hundred 12 ninety-two or after must make one-half the minimum required expenditure 13 within thirty months of the effective date of such recipient's certif- 14 icate of eligibility, and make the minimum required expenditure within 15 sixty months of the effective date of such certificate to be eligible to 16 receive the benefits of this part. Any recipient who shall fail to make 17 such expenditures shall become ineligible and shall pay, with interest, 18 any taxes for which an exemption or deferral was claimed pursuant to 19 this section. This subdivision shall not apply to the recipient of a 20 certificate of eligibility for construction of a new building or struc- 21 ture that meets the requirements set forth in subdivision i of section 22 11-259 of this part in a new construction exemption area. 23 b. No benefits pursuant to this part shall be granted for construction 24 work on any condominium unit unless such unit is in a building or struc- 25 ture which, if viewed as a whole and as if it were under single owner- 26 ship, would qualify as commercial or industrial property. The minimum 27 required expenditure applicable to any recipient of a certificate of 28 eligibility for construction work on a condominium unit shall be equal 29 to the minimum expenditure which would apply if a certificate of eligi- 30 bility were issued for construction work on the entire property where 31 such unit is located. Nothing in this subdivision shall be construed to 32 prevent owners of condominium units in the same property from forming an 33 association to be a recipient. This subdivision shall not apply to any 34 applicant whose property would be, or recipient whose property is, the 35 subject of a certificate of eligibility with an effective date of July 36 first, nineteen hundred ninety-two or after. 37 c. No benefits pursuant to this part shall be granted for any 38 construction work unless the applicant filed an application for such 39 benefits on or before the date of issuance of a building permit for such 40 work. The requirements of this subdivision may be satisfied where the 41 applicant's architect, contractor or other representative authorized to 42 file the application for such building permit files with the department 43 of finance on behalf of the applicant a preliminary application contain- 44 ing such information as the department of finance shall prescribe by 45 regulation. 46 d. No benefits pursuant to this part shall be granted to any recipient 47 for construction work on property any part of which is to be used for a 48 restricted activity. 49 e. No benefits pursuant to this part shall be granted for any 50 construction work unless the applicant shall file, together with the 51 application, an affidavit setting forth the following information: 52 (1) a statement that within the seven years immediately preceding the 53 date of application for a certificate of eligibility, neither the appli- 54 cant, nor any person owning a substantial interest in the property as 55 defined in paragraph four of this subdivision, nor any officer, director 56 or general partner of the applicant or such person was finally adjudi-S. 8474 253 1 cated by a court of competent jurisdiction to have violated section two 2 hundred thirty-five of the real property law or any section of article 3 one hundred fifty of the penal law or any similar arson law of another 4 state with respect to any building, or was an officer, director or 5 general partner of a person at the time such person was finally adjudi- 6 cated to have violated such law; 7 (2) a statement setting forth any pending charges alleging violation 8 of section two hundred thirty-five of the real property law or any 9 section of article one hundred fifty of the penal law or any similar 10 arson law of another jurisdiction with respect to any building by the 11 applicant or any person owning a substantial interest in the property as 12 defined in paragraph four of this subdivision, or any officer, director 13 or general partner of the applicant or such person; and 14 (3) a statement that the applicant has posted notice in a conspicuous 15 place at the premises which are the subject of the application and 16 published notice in a newspaper of general circulation in the city, in 17 such form as shall be prescribed by the department of finance, stating 18 that persons having information concerning any violation by the appli- 19 cant or a person having a substantial interest in the property as 20 defined in paragraph four of this subdivision has violated section two 21 hundred thirty-five of the real property law or any section of article 22 one hundred fifty of the penal law or any similar arson law of another 23 jurisdiction may submit such information to the department of finance to 24 be considered in determining the applicant's eligibility for benefits. 25 (4) "Substantial interest" as used in this subdivision shall mean 26 ownership and control of an interest of ten per centum or more in a 27 property or of any person owning a property. 28 f. If any person described in the statement required by paragraph two 29 of subdivision e of this section is finally adjudicated by a court of 30 competent jurisdiction to be guilty of any charge listed in such state- 31 ment, the recipient shall cease to be eligible for benefits pursuant to 32 this part and shall pay with interest any taxes for which an exemption, 33 abatement or deferral was claimed pursuant to this part. 34 g. In addition to any other qualifications for exemption from or 35 abatement or deferral of payment of taxes set forth in this part, an 36 applicant must be: 37 (1) obligated to pay real property tax on the property for which an 38 exemption, abatement or deferral is sought, whether such obligation 39 arises because of record ownership of such property, or because the 40 obligation to pay such tax has been assumed by contract; or 41 (2) the record owner or lessee of property which is exempt from real 42 property taxation who has entered into an agreement to sell or lease 43 such property to another person. Such person shall be a co-applicant 44 with such owner or lessee. 45 h. A co-applicant with a public entity shall be an eligible recipient 46 pursuant to this part, provided that for such period as the property 47 which is the subject of the certificate of eligibility is exempt from 48 real property taxation because it is owned or controlled by a public 49 entity no benefits shall be available to such recipient pursuant to this 50 part. Such recipient shall receive benefits pursuant to this part when 51 such property ceases to be eligible for exemption pursuant to other 52 provisions of law, as follows: the recipient shall, commencing with the 53 date such tax exemption ceases, and continuing until the expiration of 54 the benefit period pursuant to this part, receive the benefits to which 55 such recipient is entitled in the corresponding tax year pursuant to 56 this part.S. 8474 254 1 i. (1) No benefits pursuant to this part shall be granted for 2 construction of a new building or structure in a new construction 3 exemption area unless such building or structure meets the requirements 4 set forth in subparagraphs two and three of this paragraph and, in addi- 5 tion, meets at least two of the five requirements set forth in subpara- 6 graphs four through eight of this paragraph. 7 (2) The height of at least fifty per centum of the floors in such 8 building or structure shall be not less than twelve feet, nine inches 9 measured from the top of the slab comprising the floor to the bottom of 10 the slab comprising the ceiling; 11 (3) Such building or structure shall be served by fiber optic telecom- 12 munications wiring and shall contain vertical penetrations for the 13 distribution of fiber optic cabling to individual tenants on each floor; 14 (4) The total square footage of such building or structure is not less 15 than five hundred thousand gross square feet; 16 (5) A minimum of two hundred thousand gross square feet or twenty-five 17 per centum of such building or structure is comprised of floors of not 18 less than forty thousand gross square feet; 19 (6) At least ten per centum of the gross square footage of such build- 20 ing or structure is comprised of floors that contain no more than eight 21 structural columns, excluding any columns within the core or on the 22 periphery of such building or structure; 23 (7) The electrical capacity of such building or structure is not less 24 than six watts per net square foot; 25 (8) Emergency backup power sufficient to accommodate a need of six 26 watts per net square foot is available in at least two hundred thousand 27 gross square feet or twenty-five per centum of such building or struc- 28 ture. 29 j. No benefits pursuant to this part shall be granted for construction 30 work performed pursuant to a building permit issued after July thirty- 31 first, two thousand eight, except that if a building permit is issued on 32 or before July thirty-first, two thousand eight for construction work on 33 a building or structure described in an application for a certificate of 34 eligibility filed on or before June thirtieth, two thousand eight, 35 construction work performed as described in such application pursuant to 36 any additional building permit issued on or after August first, two 37 thousand eight shall be eligible for benefits pursuant to this part in 38 accordance with this subdivision. 39 (1) Except as provided in paragraph two of this subdivision, all 40 construction work performed pursuant to any such application shall be 41 completed on or before December thirty-first, two thousand thirteen. No 42 benefits shall be granted for construction work performed after such 43 date, and any exemption granted pursuant to this part in relation to 44 property on which such construction work was performed shall not exceed 45 the amount of the exemption in effect for such property on the tax roll 46 for which the taxable status date is January fifth, two thousand four- 47 teen. 48 (2) All construction work performed pursuant to any such application 49 for the construction of a new building or structure in the new 50 construction exemption area specified in paragraph three of subdivision 51 e of section 11-258 of this part shall be completed in accordance with 52 paragraph four of subdivision i of this section and, if not completed in 53 accordance with such subparagraph, shall not be eligible for benefits 54 pursuant to this part. 55 (3) For purposes of this subdivision, construction work as described 56 in an application for a certificate of eligibility shall be deemedS. 8474 255 1 completed on the date on which the department of buildings issues a 2 temporary or final certificate of occupancy or, if such construction 3 work does not require the issuance of a certificate of occupancy, the 4 date on which the applicant and the applicant's architect or profes- 5 sional engineer for such construction work submit to the department of 6 finance an affidavit certifying that such construction work has been 7 completed. For purposes of this subdivision, a demolition permit shall 8 be deemed to be a building permit issued for construction work. 9 § 11-260 Application for certificate of eligibility. a. Application 10 for a certificate of eligibility pursuant to this part may be made imme- 11 diately and continuing until June thirtieth, two thousand eight; and 12 provided, further, however, that no benefits pursuant to this part shall 13 be granted for construction work performed pursuant to a building permit 14 issued after July thirty-first, two thousand eight. Such application 15 shall state whether it is for industrial, commercial or renovation 16 construction work, and shall be filed with the department of finance. In 17 addition to any other information required by such department, the 18 application shall include cost estimates or bids for the proposed 19 construction and an affidavit of a professional engineer or architect of 20 the applicant's choice, certifying that detailed plans for the 21 construction work have been submitted to the department of buildings. 22 Such application shall also state that the applicant agrees to comply 23 with and be subject to the rules issued from time to time by the depart- 24 ment of finance to secure compliance with all applicable city, state and 25 federal laws or which implement mayoral directives and executive orders 26 designed to ensure equal employment opportunity. Such application shall 27 also certify that all taxes currently due and owing on the property 28 which is the subject of the application have been paid or are currently 29 being paid in timely installments pursuant to written agreement with the 30 department of finance. 31 b. The burden of proof shall be on the applicant to show by clear and 32 convincing evidence that the requirements for granting an exemption from 33 or abatement or deferral of payment of taxes pursuant to this part have 34 been satisfied. The department of finance shall have the authority to 35 require that statements in connection with the application be made under 36 oath. 37 c. Upon receipt of an application, the department of finance shall 38 send written notice thereof to the council member representing the 39 district where the proposed construction work is to take place. 40 d. The department of finance shall issue a certificate of eligibility 41 upon determining that the applicant satisfies the requirements for 42 industrial, commercial or renovation construction work in an area where 43 benefits are available for such work. Such certificate shall state 44 whether such benefits are to be granted for industrial, commercial or 45 renovation construction work, and in which class of area the property is 46 located. The effective date of such certificate, except as provided in 47 paragraph two or paragraph four of subdivision c of section 11-259 of 48 this part, shall be the earlier of (1) the date on which a building 49 permit for the construction work is issued by the department of build- 50 ings, or (2) the last day before the effective date of any designation 51 of boundaries by the commission which changes the class of area in which 52 the property is located so as to reduce the level of benefits for 53 commercial construction work on such property. Where the effective date 54 of the certificate of eligibility is July first, nineteen hundred nine- 55 ty-two or after, the benefits granted for industrial, commercial or 56 renovation construction work pursuant to this part shall be in accord-S. 8474 256 1 ance with the provisions of this part. Where the effective date of the 2 certificate of eligibility is June thirtieth, nineteen hundred ninety- 3 two or before, the benefits granted for industrial or commercial 4 construction work pursuant to this part shall be in accordance with the 5 provisions of this part as it was in effect until June thirtieth, nine- 6 teen hundred ninety-two. No recipient whose property is the subject of 7 a certificate of eligibility for commercial construction work in a 8 deferral area shall be eligible to apply for a certificate of eligibil- 9 ity for renovation construction work on the same property, where the 10 renovation construction work is the same as, or similar to, the commer- 11 cial construction work for which the deferral area certificate was 12 issued, until three years after the effective date of the deferral area 13 certificate. No recipient shall receive a tax deferral and a tax 14 exemption for the same expenditure on eligible construction work. 15 e. A copy of the certificate of eligibility shall be filed by the 16 department of finance in the manner prescribed for recording a mortgage 17 pursuant to section two hundred ninety-one-d of the real property law. 18 f. The department of finance may provide by rule for reasonable admin- 19 istrative charges or fees necessary to defray expenses in administering 20 the benefit program provided by this part. 21 § 11-261 Reporting requirement; termination of benefits. a. Upon 22 approval by the department of buildings of the plans submitted in 23 connection with the building permit and any amendments to such plans, 24 the recipient shall file with the department of finance a narrative 25 description of such approved plans describing the industrial, commercial 26 or renovation construction work for which such recipient seeks benefits 27 pursuant to this part. 28 b. For the duration of the benefit period the recipient shall file 29 annually with the department of finance, on or before the taxable status 30 date, a certificate of continuing use stating the purposes for which the 31 property described in the certificate of eligibility is being used and 32 the net square footage allotted to each such purpose. Such certificate 33 of continuing use shall be on a form prescribed by the department of 34 finance and shall state the total number of workers employed on the 35 property and the number of such workers who are city residents. The 36 department of finance shall have authority to terminate benefits pursu- 37 ant to this part upon failure of a recipient to file such certificate by 38 the taxable status date. The burden of proof shall be on the recipient 39 to establish continuing eligibility for benefits and the department of 40 finance shall have the authority to require that statements made in such 41 certificate shall be made under oath. 42 c. A recipient shall file an amendment to the latest certificate of 43 continuing use prior to (1) converting square footage within property 44 which is the subject of a certificate of eligibility for industrial 45 construction work from use for the manufacturing activities described in 46 such certificate of continuing use where such conversion results in less 47 than sixty-five per centum of total net square footage being used or 48 held out for use for manufacturing activities; or (2) converting any 49 portion of property which is the subject of a certificate of eligibility 50 to use for any restricted activity or as residential property. 51 d. No later than eighteen months after the effective date of a certif- 52 icate of eligibility with an effective date of June thirtieth, nineteen 53 hundred ninety-two or before, the recipient shall present evidence to 54 the department of finance demonstrating that the recipient has made 55 one-half of the minimum required expenditure. Not later than thirty-six 56 months after the effective date of such certificate, such recipientS. 8474 257 1 shall present evidence to such department demonstrating that the recipi- 2 ent has made the minimum required expenditure. Not later than thirty 3 months after the effective date of a certificate of eligibility with an 4 effective date of July first, nineteen hundred ninety-two or after, the 5 recipient shall present evidence to the department of finance demon- 6 strating that the recipient has made one-half of the minimum required 7 expenditure. Such evidence shall be presented in the form and manner 8 prescribed by such department. The burden of proof shall be on the 9 recipient to show by clear and convincing evidence that the required 10 expenditures have been made. This subdivision shall not apply to the 11 recipient of a certificate of eligibility for construction of a new 12 building or structure that meets the requirements set forth in subdivi- 13 sion i of section 11-259 of this part in a new construction exemption 14 area. 15 e. A recipient of a certificate of eligibility for construction of a 16 new building or structure in a new construction exemption area shall 17 present evidence to the department of finance demonstrating that the 18 requirements of subdivision i of section 11-259 of this part have been 19 met. Such evidence shall be presented in the form and manner and at the 20 time prescribed by such department. The burden of proof shall be on the 21 recipient to show by clear and convincing evidence that such require- 22 ments have been met. 23 § 11-262 Conversion of property. a. Any recipient whose property is 24 the subject of a certificate of eligibility for commercial or renovation 25 construction work, and who, prior to the expiration of the benefit peri- 26 od, uses such property as industrial property, shall continue to receive 27 benefits for commercial or renovation construction work as the case may 28 be. 29 b. Any recipient whose property is the subject of a certificate of 30 eligibility for industrial construction work, and who, prior to the 31 expiration of the benefit period, uses such property as commercial prop- 32 erty, shall cease to be eligible for further exemption or abatement for 33 industrial construction work as of the last date to which such recipient 34 proves by clear and convincing evidence that such property was used as 35 industrial property, and shall pay with interest any taxes for which an 36 exemption or abatement was claimed after such date, except that: 37 (1) a recipient of a certificate of eligibility for industrial 38 construction work in a special exemption area who would have been eligi- 39 ble to receive a certificate of eligibility for commercial construction 40 work at the time such recipient applied for benefits shall continue to 41 receive an exemption for industrial construction; and 42 (2) a recipient of a certificate of eligibility for industrial 43 construction work in a regular exemption area who would have been eligi- 44 ble to receive a certificate of eligibility for commercial construction 45 work at the time such recipient applied for benefits shall, commencing 46 with the date of conversion to commercial property and continuing until 47 the expiration of the benefit period for commercial construction work, 48 receive any exemption which such recipient would have received in the 49 corresponding tax year pursuant to a certificate of eligibility for 50 commercial construction work; and 51 (3) a recipient of a certificate of eligibility for industrial 52 construction work in any area of the city on whose property at least 53 sixty-five per centum of the net square footage continues to be used or 54 held out for use for manufacturing activities after conversion to 55 commercial property, shall not be required to pay the pro rata share ofS. 8474 258 1 tax for which an exemption was claimed during the tax year in which such 2 conversion occurred. 3 c. Except as provided in subdivision d of this section, any recipient 4 whose property is the subject of a certificate of eligibility for 5 commercial, industrial or renovation construction work, and who uses 6 such property as residential property or for any restricted activity 7 prior to the expiration of the benefit period, shall cease to be eligi- 8 ble for further exemption, abatement or deferral as of the date such 9 property was first used as residential property or for any restricted 10 activity. In the case of property in an area that was designated as an 11 exemption area at the time the certificate of eligibility was issued, 12 such recipient shall pay with interest any taxes for which an exemption 13 was claimed after such date, including the pro rata share of tax for 14 which any exemption was claimed during the tax year in which such use 15 occurred. In the case of industrial property, such recipient shall pay 16 with interest any taxes for which an exemption or abatement was claimed 17 after such date, including the pro rata share of tax for which any 18 exemption or abatement was claimed during the tax year in which such use 19 occurred. In the case of property in an area that was designated as a 20 deferral area at the time the certificate of eligibility was issued, all 21 deferred tax payments on the property shall become due and payable imme- 22 diately. 23 d. Notwithstanding subdivision c of this section, any recipient whose 24 property is the subject of a certificate of eligibility for commercial 25 or renovation construction work with an effective date of July first, 26 nineteen hundred ninety-two or after, and who, prior to the expiration 27 of the benefit period, uses a portion of such property as residential 28 property, shall cease to be eligible for further exemption for commer- 29 cial or renovation construction work for that portion of such property 30 used as residential property as of the date such portion of the property 31 was first used as residential property. Such recipient shall pay, with 32 interest, any taxes for which an exemption was claimed after such date 33 attributable to that portion of the property used as residential proper- 34 ty, including the pro rata share of tax for which such exemption was 35 claimed during the tax year in which such use occurred. Such recipient 36 shall continue to receive an exemption for commercial or renovation 37 construction work for that portion of the property which continues to be 38 used as commercial property. 39 § 11-263 Administration of the benefit program. The department of 40 finance shall have, in addition to any other functions, powers and 41 duties which have been or may be conferred on it by law, the following 42 functions, powers and duties: 43 (1) To publicize the availability of benefits pursuant to this part 44 for industrial, commercial and renovation construction work. 45 (2) To receive and review applications for certificates of eligibil- 46 ity, issue such certificates where authorized pursuant to section 11-260 47 of this part, and record the issuance of such certificates as prescribed 48 in such section. 49 (3) To receive evidence of expenditures made for construction, and 50 where such expenditures do not equal the amount required to qualify for 51 exemption from or abatement or deferral of tax payments to take appro- 52 priate action, including but not limited to denying, reducing, suspend- 53 ing, terminating or revoking benefits pursuant to this part. 54 (4) To enter and inspect property to determine whether it is indus- 55 trial or commercial or mixed-use and to determine whether (a) any such 56 property is being used for any restricted use, or (b) any property whichS. 8474 259 1 is the subject of a certificate of eligibility for industrial 2 construction work is being used as commercial property, or (c) any 3 industrial or commercial property is being used as residential or mixed- 4 use property, or (d) all or part of the nonresidential portion of mixed- 5 use property is being used as residential property. 6 (5) To collect all real property taxes for which payment is deferred 7 pursuant to this part. 8 (6) To collect all real property taxes, with interest, due and owing 9 as a result of reduction, suspension, termination or revocation of any 10 exemption from or abatement or deferral of taxes granted pursuant to 11 this part. 12 (7) To make and promulgate regulations to carry out the purposes of 13 this part including, but not limited to, regulations requiring appli- 14 cants to publish notice of their applications, defining manufacturing 15 and commercial activities and specifying the nature of work for which 16 expenses may be included in the minimum required expenditure, provided, 17 however, that any regulation increasing the minimum required expenditure 18 shall not apply to any person who is a recipient on the effective date 19 of such regulation. Such regulations shall include a requirement that 20 with respect to the construction work recipients and their contractors 21 shall be equal opportunity employers and shall also provide that persons 22 employed in the construction work shall implement a training program for 23 economically disadvantaged persons enrolled or eligible to be enrolled 24 in training programs approved by the department of labor, with partic- 25 ular reference to city residents. 26 § 11-264 Tax lien; interest rate. a. All taxes plus interest required 27 to be paid retroactively pursuant to this part shall constitute a tax 28 lien as of the date it is determined such taxes and interest are owed. 29 All interest shall be calculated from the date the taxes would have been 30 due but for the exemption, abatement or deferral claimed pursuant to 31 this part at three per centum above the applicable rate of interest 32 imposed by the city generally for non-payment of real property tax on 33 such date. 34 b. All taxes for which payment is deferred pursuant to section 11-257 35 of this part shall constitute a tax lien as of the date they are due and 36 payable in accordance with the provisions of that section. 37 § 11-265 Penalties for non-compliance, false statements and omissions. 38 a. The department of finance may deny, reduce, suspend, revoke or termi- 39 nate any exemption from or abatement or deferral of tax payments pursu- 40 ant to this part whenever: 41 (1) a recipient fails to comply with the requirements of this part or 42 the rules and regulations promulgated by the department of finance 43 pursuant thereto; or 44 (2) an application, certificate, report or other document delivered by 45 an applicant or recipient hereunder contains a false or misleading 46 statement as to a material fact or omits to state any material fact 47 necessary in order to make the statements therein not false or mislead- 48 ing, and may declare any applicant or recipient who makes such false or 49 misleading statement or omission to be ineligible for future exemption, 50 abatement or deferral pursuant to this part for the same or other prop- 51 erty. 52 b. Notwithstanding any other law to the contrary, a recipient shall be 53 personally liable for any taxes owed pursuant to this part whenever such 54 recipient fails to comply with such law and rules or makes such false or 55 misleading statement or omission, and the department of finance deter- 56 mines that such act was due to the recipient's willful neglect, or thatS. 8474 260 1 under the circumstances such act constituted a fraud on the department 2 of finance or a buyer or prospective buyer of the property. The remedy 3 provided herein for an action in personam shall be in addition to any 4 other remedy or procedure for the enforcement of collection of delin- 5 quent taxes provided by any general, special or local law. Any lease 6 provision which obligates a tenant to pay taxes which become due because 7 of willful neglect or fraud by the recipient, or otherwise relieve or 8 indemnify the recipient from any personal liability arising hereunder, 9 shall be void as against public policy except where the imposition of 10 such taxes or liability is occasioned by actions of the tenant in 11 violation of the lease. 12 § 11-266 Code violations; suspension of benefits. a. If a court, or 13 the environmental control board of the preceding municipality with 14 respect to matters within its jurisdiction, finds that at the property 15 which is the subject of a certificate of eligibility there has been a 16 violation of any of the provisions of the building, fire and air 17 pollution control codes of the preceding municipality set forth in 18 subdivision b of this section, all benefits pursuant to such certificate 19 shall be suspended unless within one hundred eighty days after the 20 department of finance has sent notice of such finding to the recipient, 21 and all other persons having a financial interest in the property who 22 have filed a timely request for such notice in such form as may be 23 prescribed by the department of finance, the recipient submits to the 24 department of finance, certification from the department of buildings, 25 the fire department or the department of environmental protection 26 respectively that the underlying code violation has been cured. If the 27 recipient fails to submit the required certification within the one 28 hundred eighty day period, the period of suspension shall be effective 29 retroactively to the time of the finding by the court or the environ- 30 mental control board. The suspension of benefits shall continue until 31 the recipient submits to the department of finance the required certif- 32 ication that the violation has been cured. 33 If the original finding of violation or the denial of certification is 34 appealed and a court or appropriate governmental agency finally deter- 35 mines that the finding of violation or denial of certification was 36 invalid, any benefits lost pursuant to this section to which the recipi- 37 ent was entitled shall be restored retroactively. 38 As applied to a recipient who is eligible for deferral of tax payments 39 pursuant to subdivision d of section 11-257 of this part, suspension of 40 benefits shall be deferred by operation of such section and interest at 41 the rate charged by the department of finance for overdue taxes shall be 42 charged on the amount of any tax payments already deferred by operation 43 of such section. The interest charged shall accrue from the beginning of 44 the period of suspension. 45 b. The provisions of subdivision a of this section shall apply to 46 violations of the following provision of the code of the preceding muni- 47 cipality: 48 (1) section 27-4260 of the preceding municipality; 49 (2) section 27-4265 of the preceding municipality; 50 (3) section 27-4267 of the preceding municipality; 51 (4) section 27-954 of the preceding municipality; 52 (5) section 27-339 of the preceding municipality; 53 (6) subdivision (c) of section 27-353 of the preceding municipality; 54 (7) paragraph twelve of subdivision (f) of section 27-972 of the 55 preceding municipality;S. 8474 261 1 (8) paragraph ten of subdivision (g) of section 27-972 of the 2 preceding municipality; 3 (9) subdivision (c) of section 27-975 of the preceding municipality; 4 (10) subdivision (c) of section 27-989 of the preceding munici- 5 pality; 6 (11) the following provisions to the extent applicable to cabarets 7 as defined in article two of subchapter two of the building code of 8 the preceding municipality: 9 (a) section 27-542 of the preceding municipality; 10 (b) subparagraph d of paragraph two of subdivision (b) of section 11 27-547 of the preceding municipality; 12 (c) paragraph three of subdivision (a) of section 27-549 of the 13 preceding municipality; 14 (d) subdivision (b) of section 27-549 of the preceding municipality; 15 (12) section 27-127 of the preceding municipality when the violation 16 concerns an unsafe condition on a facade of a building which exceeds 17 six stories in height; 18 (13) section five hundred one of reference standard 13-1 of the 19 preceding municipality; 20 (14) section one thousand three of reference standard 13-1 of the 21 preceding municipality; 22 (15) paragraph six of subdivision (b) of section 24-178 of the 23 preceding municipality; and 24 (16) section 24-185 of the preceding municipality. 25 § 11-267 Annual report. The department of finance shall submit an 26 annual report to the council, on April first of each year, concerning 27 the status of the program established pursuant to this part and its 28 effects in the city, including information on certificates of eligibil- 29 ity issued and jobs created in each area where benefits are available. 30 CHAPTER 3 31 TAX LIENS AND TAX SALES 32 § 11-301 When taxes, assessments, sewer rents, sewer surcharges and 33 water rents to be liens on land assessed. All taxes and all assessments 34 and all sewer rents, sewer surcharges and water rents, and the interest 35 and charges thereon, which may be laid or may have heretofore been laid, 36 upon any real estate now in the city, shall continue to be, until paid, 37 a lien thereon, and shall be preferred in payment to all other charges. 38 The words "water rents" whenever they are used in this chapter shall 39 include uniform annual charges and extra and miscellaneous charges for 40 the supply of water, charges in accordance with meter rates, minimum 41 charges for the supply of water by meter, annual service charges and 42 charges for meters and their connections and for their setting, repair 43 and maintenance, penalties and fines and all lawful charges for the 44 supply of water imposed pursuant to the New York city municipal water 45 finance authority act, which is set forth in title two-A of article five 46 of the public authorities law. Charges for expense of meters, their 47 connections, setting, repair or maintenance shall not be due or become a 48 charge or lien on the premises where a water meter shall be installed or 49 against which a charge shall be made, until such charge shall have been 50 definitely fixed by the commissioner of environmental protection, and an 51 entry of the amount thereof shall have been made with the date of such 52 entry in the book in which the charges for water supplied by meter 53 against such premises are to be entered. A charge in accordance with 54 meter rates or minimum charges for the supply of water measured by 55 meter, and a service charge shall not be due or become a lien or charge 56 upon the premises where such meter is installed until an entry shallS. 8474 262 1 have been made indicating that such premises are metered, with the date 2 of such entry in the book in which the charges for water by meter meas- 3 urement against such premises are to be entered. The words "sewer rents" 4 when used in this chapter shall mean any rents or charges imposed pursu- 5 ant to section 24-514 of the code of the preceding municipality or 6 pursuant to the New York city municipal water finance authority act, 7 which is set forth in title two-A of article five of the public authori- 8 ties law. The words "sewer surcharges" when used in this chapter shall 9 mean the charges imposed pursuant to section 24-523 of the code of the 10 preceding municipality or pursuant to the New York city municipal water 11 finance authority act, which is set forth in title two-A of article five 12 of the public authorities law. Whenever an increase in the amount of 13 uniform annual charges or extra or miscellaneous charges shall have been 14 made or a charge shall have been made for water services for any build- 15 ing completed subsequent to the first day of January in each year, the 16 amount of such increase of the charge or new charge for such new build- 17 ing shall not be due or become a lien or charge against the premises 18 until the amounts thereof shall have been entered with the date of such 19 entries, respectively, in the books in which the uniform annual charges 20 and extra or miscellaneous charges against such premises are to be 21 entered. The words "tax lien" when used in this chapter shall mean the 22 lien arising pursuant to the provisions of this chapter or pursuant to 23 the New York city municipal water finance authority act, which is set 24 forth in title two-A of article five of the public authorities law, as a 25 result of the nonpayment of taxes, assessments, sewer rents, sewer 26 surcharges, water rents, any other charges that are made a lien subject 27 to the provisions of this chapter, the costs of any advertisements and 28 notices given pursuant to this chapter, any other charges that are due 29 and payable, a surcharge pursuant to section 11-332 of this chapter if 30 the tax lien is sold, interest and penalties thereon and the right of 31 the city to receive such amounts. The words "tax lien certificate" when 32 used in this chapter shall mean the instrument evidencing a tax lien and 33 executed by the commissioner of finance or his or her designee at such 34 time as such lien is transferred to a purchaser upon sale of such lien 35 by the city. 36 § 11-302 Interest rates not to be reduced. The commissioner of 37 finance shall not reduce the rate of interest upon any taxes or assess- 38 ment below the amount fixed by law. 39 § 11-302.1 Error in record of payment of tax or assessment. (a) If the 40 records of the department of finance show a charge as paid due to a 41 misapplied payment or other error, and the department later corrects the 42 records, interest shall not be imposed until after the department (i) 43 corrects the error and (ii) sends a statement of account or other simi- 44 lar bill or notice stating the amount due and when the charge must be 45 paid to avoid the accrual of interest. 46 (b) The provisions of this section shall not apply to an installment 47 of tax or an assessment for which payment, made electronically, by 48 check, or by other means, was dishonored. 49 (c) The provisions of this section shall not apply where the error in 50 the records of the department was made as a result of fraud or other 51 criminal conduct by the taxpayer or any person acting on his or her 52 behalf or at his or her request. 53 § 11-303 Arrears to be provided for in assessment rolls. There shall 54 be ruled in the yearly assessment rolls of the taxes in each section or 55 ward, a column headed "arrears," in which the commissioner of finance 56 shall annually before any taxes for the year are collected, cause to beS. 8474 263 1 entered the word "arrears" opposite to the ward, lot, town, block and 2 map numbers on which any arrears of taxes, sewer rents, sewer surcharges 3 or water rents shall be due, or on which any assessment shall remain 4 unpaid which was due or confirmed one month prior to the first of July, 5 then last past. 6 § 11-304 Bills for taxes to show arrears. There shall be ruled a 7 column for "arrears" in every bill rendered for taxes for lots on which 8 such arrears or assessments, sewer rents, sewer surcharges or water 9 rents, and interest and penalties thereon, may be due as aforesaid, or 10 may have been sold and yet be redeemable, in which shall be written in a 11 conspicuous place, "arrears". The columns for arrears indicate lots 12 sold for arrears, or to be sold therefor; arrears to be paid and lots 13 redeemed at the office of the city collector. 14 § 11-305 Commissioner of finance to publish notice of confirmation of 15 assessments. It shall be the duty of the commissioner of finance to 16 give public notice, by advertisement, for at least ten days, in the City 17 Record and as soon as practicable and within ten days after the confir- 18 mation of any assessment, that the same has been confirmed, specifying 19 the title of such assessment, and the date of its confirmation, and also 20 the date of entry in the record of titles of assessments kept in the 21 department of finance, addressed as a class to all persons, owners of 22 property affected by any such assessment, that unless the amount 23 assessed for benefit on any person or property shall be paid within 24 ninety days after the date of the entry of any such assessment, interest 25 shall be thereafter collected thereon as provided in section 11-306 of 26 this chapter. 27 § 11-306 Interest to be charged if assessments unpaid for ninety days; 28 payment in installments. If any assessment shall remain unpaid for the 29 period of ninety days after the date of the entry thereof on the record 30 of titles of assessments, it shall be the duty of the commissioner of 31 finance or his or her designee to charge, collect and receive interest 32 thereon, at the rate of seven percent per annum, to be calculated to the 33 date of payment from the date when such assessment became a lien as 34 provided by section three hundred fourteen of the New York city charter 35 in force at the time of the adoption of the New York city charter by 36 referendum in the year nineteen hundred sixty-one, provided, however, 37 that the city collector shall accept and credit as payments on account 38 of assessments now or hereafter levied against any parcel or plot of 39 property, such sums of money not less than twenty-five dollars or multi- 40 ples thereof in amount as may be tendered for payment on account of any 41 assessment now or hereafter levied against any property. Upon requisi- 42 tion by the commissioner of finance for the assessed valuation of the 43 property affected by any assessment, the president of the tax commis- 44 sion, or any tax commissioner duly assigned by him or her, shall forth- 45 with certify the same to the commissioner of finance. 46 § 11-307 Payments in installments of assessments heretofore or here- 47 after confirmed. Upon the application in writing of the owner of a 48 parcel of real property affected by an unpaid assessment heretofore or 49 hereafter confirmed the amount of which is one hundred dollars or more, 50 the commissioner of finance shall divide the assessment upon such parcel 51 into fifteen parts or, if the application so requests, into five parts, 52 as nearly equal as may be, or if the amount of such assessment is fifty 53 dollars or more but less than one hundred dollars the commissioner of 54 finance shall divide the assessment upon such parcel into five parts as 55 nearly equal as may be. One part thereof in any event shall be due and 56 payable, and in each case as many more of such parts shall be due andS. 8474 264 1 payable as years may have elapsed since the entry of such original 2 assessment for collection. Such parts thereof with interest at the rate 3 of seven percent per annum on the amount of the assessment unpaid shall 4 be paid at the time of application as a condition of the extension of 5 time of payment of the remainder as provided in this section. Upon 6 payment of such parts and interests, the balance of such assessments 7 shall cease to be a lien upon such real property except as hereinafter 8 provided; and the remaining parts shall be paid in annual installments 9 as herein provided. Of such installments the first, with interest at 10 the rate of four percent thereon, and on the installments thereafter to 11 become due, from the date of payment of the parts of such assessment 12 paid as hereinbefore provided, shall become due and payable and be a 13 lien on the real property assessed, on the next ensuing anniversary of 14 the date of entry of the assessment in the record of titles of assess- 15 ments confirmed; and one, with interest at the rate of four percent per 16 annum thereon and on the installments thereafter to become due shall 17 become due and payable and be a lien upon the real property assessed, 18 annually thereafter. After the time herein specified for annual 19 installments and interest to become due, the amount of the lien thereon 20 shall bear interest at the rate of seven percent per annum. Any 21 installment assessment shall not be further divided into installments. 22 The first installment of an assessment divided within the ninety-day 23 period provided by section 11-306 of this chapter during which assess- 24 ment may be paid without interest shall not be subject to interest, but 25 the second installment with interest at the rate of four percent per 26 annum from the original date of entry shall become due and payable and 27 be a lien upon the real property on the anniversary date of entry of the 28 assessment and the remaining installments with interest shall become due 29 and payable and be a lien on the real property as hereinbefore provided. 30 The installments not due with interest at the rate of four percent per 31 annum to the date of payment may be paid at any time. The provisions of 32 this chapter with reference to the sale of tax liens shall apply to the 33 several unpaid installments and the interest thereon in the same manner 34 as if each installment and the interest thereon had been imposed as an 35 assessment payable in one payment, at the time such installment became a 36 lien. In the event of the acquisition by condemnation by the city for 37 public purposes any property upon which there are installments not due, 38 such installments shall become due as of the date of the entry of the 39 final order of the supreme court or the confirmation of the report of 40 the commissioners in the condemnation proceedings, and shall be set off 41 against an award that may be made for the property acquired. 42 When an award for damage shall accrue to the same person who is or was 43 at the time the assessment was confirmed liable for the assessments for 44 benefit on the abutting property in the same proceedings, only the 45 portion of the assessment in excess of such award may be considered in 46 levying in installments under the provisions of this section. Except as 47 provided in this section, no such annual installment shall be a lien or 48 deemed to be an encumbrance upon the title to the real property assessed 49 until it becomes due as herein provided. 50 § 11-308 Apportionment of assessment. If a sum of money in gross has 51 been or shall be assessed upon any lands or premises in the city, any 52 person or persons claiming any divided or undivided part thereof may pay 53 such part of the sums of money so assessed, also of the interest and 54 charges due or charged thereon, as the commissioner of finance may deem 55 to be just and equitable. The remainder of the sum of money so 56 assessed, together with the interest and charges, shall be a lien uponS. 8474 265 1 the residue of the land and premises only, and the tax lien upon such 2 residue may be sold in pursuance of the provisions of this chapter, to 3 satisfy the residue of such assessment, interest, or charges thereon, in 4 the same manner as though the residue of such assessment had been 5 imposed upon such residue of such land or premises. 6 § 11-309 Notifying taxpayers of assessments. a. The owner of any lot, 7 piece or parcel of land in the city of Staten Island or any person 8 interested in such lot, piece or parcel, may file with the department of 9 finance, a statement containing a brief description of such land, 10 together with the section, block and lot number thereof, or such other 11 identifying information as at the time is established by the department 12 of finance, and a statement of the applicant's interest therein, togeth- 13 er with a written request that such lot, piece or parcel of land be 14 registered in the name of the applicant. In such statement the applicant 15 shall designate a post office address to which notifications addressed 16 to such applicant shall be sent. A brief description of such lot, piece 17 or parcel of land corresponding to the description thereof in the state- 18 ment so filed, together with the name of the applicant and his or her 19 post office address and the date of such application, shall thereupon be 20 registered in the department of finance. 21 b. As soon as any assessment for a local improvement shall have been 22 confirmed, including assessments confirmed by a court of record, and the 23 list thereof shall have been entered and filed in the department of 24 finance, such assessment list shall be examined and thereupon, within 25 twenty days after such entry there shall be mailed a notice addressed to 26 each person in whose name any lot, piece or parcel of land, affected by 27 such assessment, is registered, at the post office address registered in 28 the records of the department of finance, which notice shall contain the 29 brief description of the lot, piece or parcel of land registered in the 30 name of the person to whom such notice is addressed, together with the 31 amount assessed thereon, date of entry, and title of the improvement for 32 which such assessment is made, and a statement of the rate of interest 33 or penalty imposed for the nonpayment of such assessment, and the date 34 from which the interest or penalty will be computed. Failure to comply 35 with the provisions herein however, shall in no manner affect the valid- 36 ity or collectability of any assessment heretofore or hereafter 37 confirmed, nor shall any claim arise or exist against the comptroller, 38 the commissioner of finance, or any officer of the city by reason of 39 such failure. 40 c. The commissioner of finance or his or her designee shall for the 41 purpose of this section provide appropriate records for each section of 42 the city, included within the respective boroughs, as the same shall 43 appear upon the tax maps of the city. 44 § 11-310 Water charges and sewer rents to be transmitted to commis- 45 sioner of finance. The commissioner of environmental protection shall 46 cause to be transmitted to the commissioner of finance an account of all 47 water rents, charges, fines and penalties and all sewer rents, charges, 48 fines and penalties as the same become due or accrue. 49 § 11-311 Sewer surcharges to be transmitted to commissioner of 50 finance. The commissioner of environmental protection shall cause to be 51 transmitted to the commissioner of finance an account of all sewer 52 surcharges, fines and penalties as the same become due or accrue. 53 § 11-312 Water rents; when payable; penalty for nonpayment. a. One- 54 half (i) the uniform annual water charges and extra and miscellaneous 55 charges for water not metered and (ii) annual service charges shall 56 become due and payable, in advance if entered on January first, nineteenS. 8474 266 1 hundred seventy-four for the period commencing January first, nineteen 2 hundred seventy-four and ending June thirtieth, nineteen hundred seven- 3 ty-four. Commencing on June thirtieth, nineteen hundred seventy-four, 4 uniform annual water charges and extra and miscellaneous charges for 5 water not metered and annual service charges shall be due and payable in 6 advance on the thirtieth day of June in each year, if entered. If any of 7 such rents and charges which become due and payable on or before June 8 thirtieth, nineteen hundred seventy-six shall not have been paid to the 9 commissioner of finance or his or her designee on or before the last day 10 of the month following the month of entry, it shall be the duty of the 11 commissioner of finance or his or her designee to charge, collect and 12 receive interest thereon to be calculated at the rate of seven percent 13 per annum from the date when such rents and charges became due and paya- 14 ble to December thirty-first, nineteen hundred seventy-six, and at the 15 rate of fifteen percent per annum from January first, nineteen hundred 16 seventy-seven to the date of payment. If any of such rents and charges 17 which shall become due and payable on or after June thirtieth, nineteen 18 hundred seventy-seven are not paid to the commissioner of finance or his 19 or her designee on or before the last day of the month following the 20 month of entry, it shall be the duty of the commissioner of finance or 21 his or her designee to charge, collect and receive interest thereon to 22 be calculated at the rate of fifteen percent per annum from the date 23 when such rents and charges became due and payable to the date of 24 payment. If not so entered and payable, but entered at any time subse- 25 quent thereto, they shall be due and payable when entered and notice 26 thereof shall be mailed within five days of such entry to the premises 27 against which they are imposed addressed to either the owner or the 28 occupant and, if entered on or before December thirty-first, nineteen 29 hundred seventy-six but not paid on or before the last day of the month 30 following the month of entry, it shall be the duty of the commissioner 31 of finance or his or her designee to charge, collect and receive inter- 32 est thereon to be calculated at the rate of seven percent per annum from 33 the date of entry to December thirty-first, nineteen hundred seventy- 34 six, and at the rate of fifteen percent per annum from January first, 35 nineteen hundred seventy-seven to the date of payment; if entered on or 36 after January first, nineteen hundred seventy-seven but not paid on or 37 before the last day of the month following the month of entry, it shall 38 be the duty of the commissioner of finance or his or her designee to 39 charge, collect and receive interest thereon to be calculated at the 40 rate of fifteen percent per annum from the date of entry to the date of 41 payment. 42 b. All charges for meters and their connections and for their setting, 43 repair and maintenance, and all charges in accordance with meter rates 44 for supply of water measured by meter, including minimum charges for the 45 supply of water measured by meter, shall be due and payable when 46 entered, and notice thereof shall be mailed within five days of such 47 entry stating the amount due and the nature of the rent or charge to the 48 last known address of the person whose name appears on the record of 49 such rents and charges as being the owner, occupant or agent or, where 50 no name appears, to the premises addressed to either the owner or the 51 occupant, and if entered on or before December thirty-first, nineteen 52 hundred seventy-six but not paid on or before the last day of the month 53 following the month of entry, it shall be the duty of the commissioner 54 of finance or his or her designee to charge, collect and receive inter- 55 est thereon to be calculated at the rate of seven percent per annum from 56 the date of entry to December thirty-first, nineteen hundred seventy-S. 8474 267 1 six, and at the rate of fifteen percent per annum from January first, 2 nineteen hundred seventy-seven to the date of payment; if entered on or 3 after January first, nineteen hundred seventy-seven but not paid on or 4 before the thirtieth day following the date of entry, it shall be the 5 duty of the commissioner of finance or his or her designee to charge, 6 collect and receive interest thereon to be calculated at the rate of 7 fifteen percent per annum from the date of entry to the date of payment. 8 § 11-313 Sewer rents; when payable; penalty for nonpayment. a. As used 9 in this section: 10 1. The term "metered premises" shall mean premises, or any part there- 11 of, (a) to which water is supplied by the municipal water supply system 12 or by a private water company, and (b) at which the quantity of water 13 supplied is measured by a water meter. 14 2. The term "unmetered premises" shall mean premises, or any part 15 thereof, (a) to which water is supplied by the municipal water supply 16 system or by a private water company, and (b) at which the quantity of 17 water supplied is not measured by a water meter. 18 b. The sewer rents charged against metered premises in accordance with 19 the provisions of paragraphs two and three of subdivision b of section 20 24-514 of the code of the preceding municipality and the rules duly 21 promulgated pursuant to such section, including the minimum rents for 22 the use of the sewer system, charged pursuant to such section and rules, 23 and the sewer rents charged against any premises in accordance with the 24 provisions of paragraphs four and five of subdivision b of section 25 24-514 of the code of the preceding municipality and rules duly promul- 26 gated pursuant to such section, including the minimum rents for the use 27 of the sewer system, charged pursuant to such section and rules shall 28 become due and shall become a charge or lien on the premises when the 29 amount thereof shall have been fixed by the commissioner of environ- 30 mental protection, and an entry thereof shall have been made against 31 such premises with the date of such entry, in the book in which sewer 32 rents are to be entered. The sewer surcharges charged against any prem- 33 ises pursuant to section 24-523 of the code of the preceding munici- 34 pality shall become due and shall become a charge or lien on the prem- 35 ises when the amount thereof shall have been fixed by the commissioner 36 of environmental protection and an entry thereof shall have been made 37 against such premises in the book in which sewer surcharges are to be 38 entered. A notice thereof, stating the amount due and the nature of the 39 rent, surcharge or charge shall be mailed, within five days after such 40 entry, to the last known address of the person whose name appears upon 41 the records in the office of the department of finance as being the 42 owner, occupant or agent or, where no name appears, to the premises 43 addressed to either the owner or the occupant. If such rent, surcharge 44 or charge shall have been entered on or before December thirty-first, 45 nineteen hundred seventy-six but not paid on or before the last day of 46 the month following the month of entry, it shall be the duty of the 47 commissioner of finance or his or her designee to charge, collect and 48 receive interest thereon to be calculated at the rate of seven percent 49 per annum from the date of entry to December thirty-first, nineteen 50 hundred seventy-six, and at the rate of fifteen percent per annum from 51 January first, nineteen hundred seventy-seven to the date of payment; if 52 entered on or after January first, nineteen hundred seventy-seven but 53 not paid on or before the thirtieth day following the date of entry, it 54 shall be the duty of the commissioner of finance or his or her designee 55 to charge, collect and receive interest thereon to be calculated at the 56 rate of fifteen percent per annum from the date of entry to the date ofS. 8474 268 1 payment. The rents or charges for the use of the sewer system charged 2 during any specified period of time pursuant to the provisions of 3 section 24-514 of the code of the preceding municipality and the rules 4 promulgated thereunder shall be computed, in accordance with the 5 provisions of such section and the rules duly promulgated thereunder, on 6 the basis of water rents or charges computed for the same period. 7 c. Sewer rents charged against unmetered premises in accordance with 8 the provisions of paragraphs two and three of subdivision b of section 9 24-514 of the code of the preceding municipality and the rules duly 10 promulgated pursuant to such section, for the use of the sewer system 11 during the one-year period commencing on the first day of July of each 12 year, shall be due and payable and shall become a charge or lien on the 13 premises on the first day of January following such first day of July, 14 if entered, except that commencing on June thirtieth, nineteen hundred 15 seventy-four such sewer rents shall be due and payable in advance on the 16 thirtieth day of June in each year, if entered, and shall become a 17 charge or lien on the premises on such date. If any of such rents or 18 charges which became due and payable on or before June thirtieth, nine- 19 teen hundred seventy-six shall not have been paid to the commissioner of 20 finance or his or her designee within thirty days after such first day 21 of January, or, commencing on the thirtieth day of June, nineteen 22 hundred seventy-four, on or before the last day of the month following 23 the month of entry, it shall be the duty of the commissioner of finance 24 or his or her designee to charge, collect and receive interest thereon 25 to be calculated at the rate of seven percent per annum from the date 26 when such charges became due and payable to December thirty-first, nine- 27 teen hundred seventy-six, and at the rate of fifteen percent per annum 28 from January first, nineteen hundred seventy-seven to the date of 29 payment. If any of such rents or charges which shall become due and 30 payable on or after June thirtieth, nineteen hundred seventy-seven are 31 not paid to the commissioner of finance or his or her designee on or 32 before the last day of the month following the month of entry, it shall 33 be the duty of the commissioner of finance or his or her designee to 34 charge, collect and receive interest thereon to be calculated at the 35 rate of fifteen percent per annum from the date when such rents or 36 charges became due and payable to the date of payment. If not so entered 37 and payable, but entered at any time subsequent thereto, they shall be 38 due and payable and shall become a charge or lien on the premises when 39 entered and notice thereof shall be mailed within five days after such 40 entry, to the last known address of the person whose name appears upon 41 the records in the department of finance as the owner or the occupant or 42 if no name appears, to the premises addressed to either the owner or 43 occupant. If any of such rents or charges which were entered on or 44 before December thirty-first, nineteen hundred seventy-six but not paid 45 on or before the last day of the month following the month of entry, it 46 shall be the duty of the commissioner of finance or his or her designee 47 to charge, collect and receive interest thereon to be calculated at the 48 rate of seven percent per annum from the date of entry to December thir- 49 ty-first, nineteen hundred seventy-six, and at the rate of fifteen 50 percent per annum from January first, nineteen hundred seventy-seven to 51 the date of payment; if entered on or after January first, nineteen 52 hundred seventy-seven but not paid on or before the last day of the 53 month following the month of entry, it shall be the duty of the commis- 54 sioner of finance or his or her designee to charge, collect and receive 55 interest thereon to be calculated at the rate of fifteen percent per 56 annum from the date of entry to the date of payment. The sewer rentsS. 8474 269 1 charged against unmetered premises for the use of the sewer system 2 during the one-year period commencing on the first day of July of each 3 year shall be computed in accordance with the provisions of section 4 24-514 of the code of the preceding municipality and the rules duly 5 promulgated thereunder, upon the basis of water rents or charges 6 computed for the same period. 7 d. Whenever an increase in the amount of the sewer rent charged 8 against unmetered premises shall have been made or a charge shall have 9 been made for sewer services for any building completed subsequent to 10 the first day of July in each year, the amount of such increase of the 11 charge or new charge for such new building shall not be due or become a 12 lien or charge against the premises until the amounts thereof shall have 13 been entered with the date of such entries, respectively, in the books 14 in which sewer rents charged against such premises are to be entered. 15 e. No later than the twenty-fifth day of May in each year, the banking 16 commission shall transmit a written recommendation to the council of a 17 proposed interest rate to be charged for nonpayment of sewer rents. In 18 making such recommendations the commission shall consider the prevailing 19 interest rates charged for commercial loans extended to prime borrowers 20 by commercial banks operating in the city and shall propose a rate of at 21 least six per centum per annum greater than such rates. The council may 22 by resolution adopt an interest rate to be charged for nonpayment of 23 sewer rents pursuant to section 11-224 of the code and, for nonpayment 24 of sewer rents that become due and payable on or after July first, two 25 thousand five, pursuant to section 11-224.1 of the code, and may specify 26 in such resolution the date on which such interest rate is to take 27 effect. 28 § 11-314 Notice of rules and regulations; penalty for nonpayment; 29 water supply cut off. The rates and charges for supply of water, the 30 annual service charges and minimum charges, the sewer rents, the sewer 31 surcharges, the rules and regulations concerning the use of water, all 32 other rules and regulations affecting users of water or concerning 33 charges for supply of water, restrictions of the use of water, installa- 34 tion of meters, and all rules and regulations affecting property 35 connected with the sewer system, penalties and fines for violations of 36 rules and regulations shall be printed on each bill and permit so far as 37 in the judgment of the commissioner of environmental protection they are 38 applicable. This section and such printing and the printing of this 39 section on such bills and permits shall be sufficient notice to owners, 40 tenants or occupants of premises to authorize the imposition and recov- 41 ery of any charges, surcharges and fines imposed under such rules and 42 regulations and of any penalties imposed in pursuance of this chapter in 43 addition to cutting off the supply of water. Where water charges payable 44 in advance or sewer rents or charges payable as provided in subdivision 45 c of section 11-313 of this chapter, are not paid within the period 46 covered by such charges or rents, and a notice of such nonpayment is 47 mailed by the commissioner of finance to the premises addressed to 48 "owner or occupant," the commissioner of environmental protection may 49 shut off the supply of water to such premises. Where water charges not 50 payable in advance or sewer rents, sewer surcharges or charges payable 51 as provided in subdivisions b and d of section 11-313 of this chapter 52 have been made by the department and remain unpaid for more than thirty 53 days or where the commissioner of environmental protection has certified 54 that there is a flagrant and continued violation of a provision or 55 provisions of section 24-523 of the code or of any rule or regulation 56 promulgated pursuant thereto or of any order of the commissioner ofS. 8474 270 1 environmental protection issued pursuant thereto, after notice thereof 2 mailed to the premises addressed to "owner or occupant," the commission- 3 er of environmental protection may shut off the supply of water to the 4 premises. 5 § 11-315 Enforcement of collection of sewer rents, sewer surcharges 6 and water rents. Sewer rents, sewer surcharges, charges, penalties and 7 fines, and interest thereon, and water rents, charges, penalties and 8 fines, and interest thereon, shall after they are payable to the commis- 9 sioner of finance or his or her designee be enforced in the manner 10 provided in this chapter and chapter four of this title. In addition to 11 collecting sewer rents, sewer surcharges, charges, penalties and fines 12 and interest thereon and water rents, charges, penalties and fines and 13 interest thereon in the manner provided in this chapter and chapter four 14 of this title, the city may maintain an action for their recovery 15 against the person for whose benefit or by whom the water is taken or 16 used or for whose benefit or by whom sewer service is used. 17 § 11-316 Bills of arrears of taxes, assessments, sewer rents, sewer 18 surcharges and water rents, any other charges that are made a lien 19 subject to the provisions of this chapter, and interest and penalties 20 thereon to be furnished when requested. The commissioner of finance or 21 his or her designee, upon the written request of the owner, the proposed 22 vendee under a contract of sale, a mortgagee, any person having a vested 23 or contingent interest in any lot or lots or their duly authorized 24 agent, or any person who has made a filing pursuant to section 11-309 of 25 this chapter shall furnish a bill of all arrears of taxes on any lot or 26 lots due prior to the first of September, then last past, of sewer 27 rents, sewer surcharges and water rents, assessments, any other charges 28 that are made a lien subject to the provisions of this chapter, and 29 interest and penalties thereon, which are due and payable. Upon the 30 payment of such bill which shall be called a bill of arrears the receipt 31 of the commissioner of finance or his or her designee thereon shall be 32 conclusive evidence of such payment. The commissioner of finance or his 33 or her designee shall cause to be kept an account of amounts so 34 collected, and the certificate of the commissioner of finance or his or 35 her designee, that there are no tax liens on such lot or lots, shall 36 forever free such lot or lots from all liens of taxes, sewer rents, 37 sewer surcharges or water rents, assessments, any other charges that are 38 made a lien subject to the provisions of this chapter, and interest and 39 penalties thereon that are due and payable prior to the date of such 40 receipt or certificate, but not from the lien of any tax lien duly sold 41 and not theretofore satisfied. 42 § 11-317 Fees for searches to be added to bills. Fees for such search- 43 es shall be included in the bills mentioned in section 11-316 of this 44 chapter, and also charges for certificates, which shall be given by the 45 commissioner of finance or his or her designee respecting lots on which 46 there may be no arrears when searches are required. Such fees shall be 47 regulated by local law. 48 § 11-318 Fee for certified search and bill of arrears. A fee of twen- 49 ty-five dollars shall be paid to and collected by the commissioner of 50 finance or his or her designee on his or her furnishing a certified 51 search and bill of arrears on each lot or piece of property mentioned or 52 referred to in the written request therefor. The commissioner of finance 53 shall be authorized to waive or reduce such fee in connection with any 54 sale of a tax lien or tax liens pursuant to this chapter. 55 § 11-319 Sales of tax liens. a. A tax lien or tax liens on a property 56 or any component of the amount thereof may be sold by the city asS. 8474 271 1 authorized by subdivision b of this section, when such tax lien or tax 2 liens shall have remained unpaid in whole or in part for one year, 3 provided, however, that a tax lien or tax liens on any class one proper- 4 ty or any class two property that is a residential condominium or resi- 5 dential cooperative, as such classes of property are defined in subdivi- 6 sion one of section eighteen hundred two of the real property tax law, 7 may be sold by the city only when the real property tax component of 8 such tax lien or tax liens shall have remained unpaid in whole or in 9 part for three years and, in the case of any such class one property 10 that is not vacant land or any such class two property that is a resi- 11 dential condominium or residential cooperative, as such classes of prop- 12 erty are defined in subdivision one of section eighteen hundred two of 13 the real property tax law, equals or exceeds the sum of five thousand 14 dollars, or, in the case of any class two residential property owned by 15 a company organized pursuant to article eleven of the private housing 16 finance law that is not a residential condominium or a residential coop- 17 erative, as such classes of property are defined in subdivision one of 18 section eighteen hundred two of the real property tax law, for two 19 years, and equals or exceeds the sum of five thousand dollars, or, in 20 the case of abandoned class one property or abandoned class two property 21 that is a residential condominium or residential cooperative, for eigh- 22 teen months, and after such sale, shall be transferred, in the manner 23 provided by this chapter, and provided, further, however, that (i) the 24 real property tax component of such tax lien may not be sold pursuant to 25 this subdivision on any: (A) residential real property in class one that 26 is receiving an exemption pursuant to section 11-245.3 or 11-245.4 of 27 this title, or pursuant to section four hundred fifty-eight of the real 28 property tax law with respect to real property purchased with payments 29 received as prisoner of war compensation from the United States govern- 30 ment, or pursuant to paragraph (b) or (c) of subdivision two of section 31 four hundred fifty-eight-a of the real property tax law, or where the 32 owner of such residential real property in class one is receiving bene- 33 fits in accordance with department of finance memorandum 05-3, or any 34 successor memorandum thereto, relating to active duty military person- 35 nel, or where the owner of such residential real property in class one 36 has been allowed a credit pursuant to subsection (e) of section six 37 hundred six of the tax law for the calendar year in which the date of 38 the first publication, pursuant to subdivision a of section 11-320 of 39 this chapter, of the notice of sale, occurs or for the calendar year 40 immediately preceding such date; or (B) real property that was granted 41 an exemption pursuant to section four hundred twenty-a, four hundred 42 twenty-b, four hundred forty-six, or four hundred sixty-two of the real 43 property tax law in one of the two fiscal years preceding the date of 44 such sale, provided that: (1) such exemption was granted to such real 45 property upon the application of a not-for-profit organization that owns 46 such real property on or after the date on which such real property was 47 conveyed to such not-for-profit organization; (2) the real property tax 48 component of such lien arose on or after the date on which such real 49 property was conveyed to such not-for-profit organization; and (3) such 50 not-for-profit organization is organized or conducted for one of the 51 purposes described in paragraph a or paragraph b of subdivision one of 52 section 11-246 of this title, and (ii) the sewer rents component, sewer 53 surcharges component or water rents component of such tax lien may not 54 be sold pursuant to this subdivision on any one family residential real 55 property in class one or on any two or three family residential real 56 property in class one that is receiving an exemption pursuant to sectionS. 8474 272 1 11-245.3 or 11-245.4 of this title, or pursuant to section four hundred 2 fifty-eight of the real property tax law with respect to real property 3 purchased with payments received as prisoner of war compensation from 4 the United States government, or pursuant to paragraph (b) or (c) of 5 subdivision two of section four hundred fifty-eight-a of the real prop- 6 erty tax law, or where the owner of any two or three family residential 7 real property in class one is receiving benefits in accordance with 8 department of finance memorandum 05-3, or any successor memorandum ther- 9 eto, relating to active duty military personnel, or where the owner of 10 any two or three family residential real property in class one has been 11 allowed a credit pursuant to subsection (e) of section six hundred six 12 of the tax law for the calendar year in which the date of the first 13 publication, pursuant to subdivision a of section 11-320 of this chap- 14 ter, of the notice of sale, occurs or for the calendar year immediately 15 preceding such date. A tax lien or tax liens on any property classified 16 as a class two property, except a class two property that is a residen- 17 tial condominium or residential cooperative, or a class two residential 18 property owned by a company organized pursuant to article eleven of the 19 private housing finance law that is not a residential condominium or a 20 residential cooperative, or class three property, as such classes of 21 property are defined in subdivision one of section eighteen hundred two 22 of the real property tax law, shall not be sold by the city unless such 23 tax lien or tax liens include a real property tax component as of the 24 date of the first publication, pursuant to subdivision a of section 25 11-320 of this chapter, of the notice of sale. Notwithstanding any 26 provision of this subdivision to the contrary, any such tax lien or tax 27 liens that remain unpaid in whole or in part after such date may be sold 28 regardless of whether such tax lien or tax liens include a real property 29 tax component. A tax lien or tax liens on a property classified as a 30 class four property, as such class of property is defined in subdivision 31 one of section eighteen hundred two of the real property tax law, shall 32 not be sold by the city unless such tax lien or tax liens include a real 33 property tax component or sewer rents component or sewer surcharges 34 component or water rents component or emergency repair charges compo- 35 nent, where such emergency repair charges accrued on or after January 36 first, two thousand six and are made a lien pursuant to section 27-2144 37 of this code, as of the date of the first publication, pursuant to 38 subdivision a of section 11-320 of this chapter, of the notice of sale, 39 provided, however, that any tax lien or tax liens that remain unpaid in 40 whole or in part after such date may be sold regardless of whether such 41 tax lien or tax liens include a real property tax component, sewer rents 42 component, sewer surcharges component, water rents component or emergen- 43 cy repair charges component. For purposes of this subdivision, the words 44 "real property tax" shall not include an assessment or charge upon prop- 45 erty imposed pursuant to section 25-411 of this code. A sale of a tax 46 lien or tax liens shall include, in addition to such lien or liens that 47 have remained unpaid in whole or in part for one year, or, in the case 48 of any class one property or class two property that is a residential 49 condominium or residential cooperative, when the real property tax 50 component of such lien or liens has remained unpaid in whole or in part 51 for three years, or, in the case of any class two residential property 52 owned by a company organized pursuant to article eleven of the private 53 housing finance law that is not a residential condominium or a residen- 54 tial cooperative, when the real property tax component of such lien or 55 liens has remained unpaid in whole or in part for two years, and equals 56 or exceeds the sum of five thousand dollars, any taxes, assessments,S. 8474 273 1 sewer rents, sewer surcharges, water rents, any other charges that are 2 made a lien subject to the provisions of this chapter, the costs of any 3 advertisements and notices given pursuant to this chapter, any other 4 charges that are due and payable, a surcharge pursuant to section 11-332 5 of this chapter, and interest and penalties thereon or such component of 6 the amount thereof as shall be determined by the commissioner of 7 finance. The commissioner of finance may promulgate rules defining 8 "abandoned" property, as such term is used in this subdivision. 9 a-1. A subsequent tax lien or tax liens on a property or any component 10 of the amount thereof may be sold by the city pursuant to this chapter, 11 provided, however, that notwithstanding any provision in this chapter to 12 the contrary, such tax lien or tax liens may be sold regardless of 13 whether such tax lien or tax liens have remained unpaid in whole or in 14 part for one year and, notwithstanding any provision in this chapter to 15 the contrary, in the case of any class one property or class two proper- 16 ty that is a residential condominium or residential cooperative or, 17 beginning January first, two thousand twelve, in the case of any class 18 two residential property owned by a company organized pursuant to arti- 19 cle eleven of the private housing finance law that is not a residential 20 condominium or a residential cooperative, such tax lien or tax liens may 21 be sold if the real property tax component of such tax lien or tax liens 22 has remained unpaid in whole or in part for one year, and provided, 23 further, however, that (i) the real property tax component of such tax 24 lien may not be sold pursuant to this subdivision on any residential 25 real property in class one that is receiving an exemption pursuant to 26 section 11-245.3 or 11-245.4 of this title, or pursuant to section four 27 hundred fifty-eight of the real property tax law with respect to real 28 property purchased with payments received as prisoner of war compen- 29 sation from the United States government, or pursuant to paragraph (b) 30 or (c) of subdivision two of section four hundred fifty-eight-a of the 31 real property tax law, or where the owner of such residential real prop- 32 erty in class one is receiving benefits in accordance with department of 33 finance memorandum 05-3, or any successor memorandum thereto, relating 34 to active duty military personnel, or where the owner of such residen- 35 tial real property in class one has been allowed a credit pursuant to 36 subsection (e) of section six hundred six of the tax law for the calen- 37 dar year in which the date of the first publication, pursuant to subdi- 38 vision a of section 11-320 of this chapter, of the notice of sale, 39 occurs or for the calendar year immediately preceding such date and (ii) 40 the sewer rents component, sewer surcharges component or water rents 41 component of such tax lien may not be sold pursuant to this subdivision 42 on any one family residential real property in class one or on any two 43 or three family residential real property in class one that is receiving 44 an exemption pursuant to section 11-245.3 or 11-245.4 of this title, or 45 pursuant to section four hundred fifty-eight of the real property tax 46 law with respect to real property purchased with payments received as 47 prisoner of war compensation from the United States government, or 48 pursuant to paragraph (b) or (c) of subdivision two of section four 49 hundred fifty-eight-a of the real property tax law, or where the owner 50 of any two or three family residential real property in class one is 51 receiving benefits in accordance with department of finance memorandum 52 05-3, or any successor memorandum thereto, relating to active duty mili- 53 tary personnel, or where the owner of any two or three family residen- 54 tial real property in class one has been allowed a credit pursuant to 55 subsection (e) of section six hundred six of the tax law for the calen- 56 dar year in which the date of the first publication, pursuant to subdi-S. 8474 274 1 vision a of section 11-320 of this chapter, of the notice of sale, 2 occurs or for the calendar year immediately preceding such date. For 3 purposes of this subdivision, the term "subsequent tax lien or tax 4 liens" shall mean any tax lien or tax liens on property that become such 5 on or after the date of sale of any tax lien or tax liens on such prop- 6 erty that have been sold pursuant to this chapter, provided that the 7 prior tax lien or tax liens remain unpaid as of the date of the first 8 publication, pursuant to subdivision a of section 11-320 of this chap- 9 ter, of the notice of sale of the subsequent tax lien or tax liens. A 10 subsequent tax lien or tax liens on any property classified as a class 11 two property, except a class two property that is a residential condo- 12 minium or residential cooperative, or a class two residential property 13 owned by a company organized pursuant to article eleven of the private 14 housing finance law that is not a residential condominium or a residen- 15 tial cooperative, or class three property, as such classes of property 16 are defined in subdivision one of section eighteen hundred two of the 17 real property tax law, shall not be sold by the city unless such tax 18 lien or tax liens include a real property tax component as of the date 19 of the first publication, pursuant to subdivision a of section 11-320 of 20 this chapter, of the notice of sale. Notwithstanding any provision of 21 this subdivision to the contrary, any such tax lien or tax liens that 22 remain unpaid in whole or in part after such date may be sold regardless 23 of whether such tax lien or tax liens include a real property tax compo- 24 nent. A subsequent tax lien or tax liens on a property classified as a 25 class four property, as such class of property is defined in subdivision 26 one of section eighteen hundred two of the real property tax law, shall 27 not be sold by the city unless such tax lien or tax liens include a real 28 property tax component or sewer rents component or sewer surcharges 29 component or water rents component or emergency repair charges compo- 30 nent, where such emergency repair charges accrued on or after January 31 first, two thousand six and are made a lien pursuant to section 27-2144 32 of this code, as of the date of the first publication, pursuant to 33 subdivision a of section 11-320 of this chapter, of the notice of sale, 34 provided, however, that any tax lien or tax liens that remain unpaid in 35 whole or in part after such date may be sold regardless of whether such 36 tax lien or tax liens include a real property tax component, sewer rents 37 component, sewer surcharges component, water rents component or emergen- 38 cy repair charges component. For purposes of this subdivision, the words 39 "real property tax" shall not include an assessment or charge upon prop- 40 erty imposed pursuant to section 25-411 of this code. Nothing in this 41 subdivision shall be deemed to limit the rights conferred by section 42 11-332 of this chapter on the holder of a tax lien certificate with 43 respect to a subsequent tax lien. 44 a-2. In addition to any sale authorized pursuant to subdivision a or 45 subdivision a-1 of this section and notwithstanding any provision of 46 this chapter to the contrary, beginning on December first, two thousand 47 seven, the water rents, sewer rents and sewer surcharges components of 48 any tax lien on any class of real property, as such real property is 49 classified in subdivision one of section eighteen hundred two of the 50 real property tax law, may be sold by the city pursuant to this chapter, 51 where such water rents, sewer rents or sewer surcharges component of 52 such tax lien, as of the date of the first publication, pursuant to 53 subdivision a of section 11-320 of this chapter, of the notice of sale: 54 (i) shall have remained unpaid in whole or in part for one year and (ii) 55 equals or exceeds the sum of one thousand dollars or, beginning on March 56 first, two thousand eleven, in the case of any two or three family resi-S. 8474 275 1 dential real property in class one, for one year, and equals or exceeds 2 the sum of two thousand dollars, or, beginning on January first, two 3 thousand twenty-one, in the case of any two or three family residential 4 real property in class one, for one year, and equals or exceeds the sum 5 of three thousand dollars, or, beginning on January first, two thousand 6 twelve, in the case of any class two residential property owned by a 7 company organized pursuant to article eleven of the private housing 8 finance law that is not a residential condominium or a residential coop- 9 erative, as such class of property is defined in subdivision one of 10 section eighteen hundred two of the real property tax law, for two 11 years, and equals or exceeds the sum of five thousand dollars; provided, 12 however, that such water rents, sewer rents or sewer surcharges compo- 13 nent of such tax lien may not be sold pursuant to this subdivision on 14 any one family residential real property in class one or on any two or 15 three family residential real property in class one that is receiving an 16 exemption pursuant to section 11-245.3 or 11-245.4 of this title, or 17 pursuant to section four hundred fifty-eight of the real property tax 18 law with respect to real property purchased with payments received as 19 prisoner of war compensation from the United States government, or 20 pursuant to paragraph (b) or (c) of subdivision two of section four 21 hundred fifty-eight-a of the real property tax law, or where the owner 22 of any two or three family residential real property in class one is 23 receiving benefits in accordance with department of finance memorandum 24 05-3, or any successor memorandum thereto, relating to active duty mili- 25 tary personnel, or where the owner of any two or three family residen- 26 tial real property in class one has been allowed a credit pursuant to 27 subsection (e) of section six hundred six of the tax law for the calen- 28 dar year in which the date of the first publication, pursuant to subdi- 29 vision a of section 11-320 of this chapter, of the notice of sale, 30 occurs or for the calendar year immediately preceding such date. After 31 such sale, any such water rents, sewer rents or sewer surcharges compo- 32 nent of such tax lien may be transferred in the manner provided by this 33 chapter. 34 a-3. In addition to any sale authorized pursuant to subdivision a or 35 subdivision a-1 of this section and notwithstanding any provision of 36 this chapter to the contrary, beginning on December first, two thousand 37 seven, a subsequent tax lien on any class of real property, as such real 38 property is classified in subdivision one of section eighteen hundred 39 two of the real property tax law, may be sold by the city pursuant to 40 this chapter, regardless of whether such subsequent tax lien, or any 41 component of the amount thereof, shall have remained unpaid in whole or 42 in part for one year, and regardless of whether such subsequent tax 43 lien, or any component of the amount thereof, equals or exceeds the sum 44 of one thousand dollars or beginning on March first, two thousand elev- 45 en, in the case of any two or three family residential real property in 46 class one, a subsequent tax lien on such property may be sold by the 47 city pursuant to this chapter, regardless of whether such subsequent tax 48 lien, or any component of the amount thereof, shall have remained unpaid 49 in whole or in part for one year, and regardless of whether such subse- 50 quent tax lien, or any component of the amount thereof, equals or 51 exceeds the sum of two thousand dollars, or, beginning on January first, 52 two thousand twenty-one, in the case of any two or three family residen- 53 tial real property in class one, a subsequent tax lien on such property 54 may be sold by the city pursuant to this chapter, regardless of whether 55 such subsequent tax lien, or any component of the amount thereof, shall 56 have remained unpaid in whole or in part for one year, and regardless ofS. 8474 276 1 whether such subsequent tax lien, or any component of the amount there- 2 of, equals or exceeds the sum of three thousand dollars, or, beginning 3 on January first, two thousand twelve, in the case of any class two 4 residential property owned by a company organized pursuant to article 5 eleven of the private housing finance law that is not a residential 6 condominium or a residential cooperative, as such class of property is 7 defined in subdivision one of section eighteen hundred two of the real 8 property tax law, a subsequent tax lien on such property may be sold by 9 the city pursuant to this chapter, regardless of whether such subsequent 10 tax lien, or any component of the amount thereof, shall have remained 11 unpaid in whole or in part for two years, and regardless of whether such 12 subsequent tax lien, or any component of the amount thereof, equals or 13 exceeds the sum of five thousand dollars; provided, however, that such 14 subsequent tax lien may not be sold pursuant to this subdivision on any 15 one family residential real property in class one or on any two or three 16 family residential real property in class one that is receiving an 17 exemption pursuant to section 11-245.3 or 11-245.4 of this title, or 18 pursuant to section four hundred fifty-eight of the real property tax 19 law with respect to real property purchased with payments received as 20 prisoner of war compensation from the United States government, or 21 pursuant to paragraph (b) or (c) of subdivision two of section four 22 hundred fifty-eight-a of the real property tax law, or where the owner 23 of any two or three family residential real property in class one is 24 receiving benefits in accordance with department of finance memorandum 25 05-3, or any successor memorandum thereto, relating to active duty mili- 26 tary personnel, or where the owner of any two or three family residen- 27 tial real property in class one has been allowed a credit pursuant to 28 subsection (e) of section six hundred six of the tax law for the calen- 29 dar year in which the date of the first publication, pursuant to subdi- 30 vision a of section 11-320 of this chapter, of the notice of sale, 31 occurs or for the calendar year immediately preceding such date. After 32 such sale, any such subsequent tax lien, or any component of the amount 33 thereof, may be transferred in the manner provided by this chapter. For 34 purposes of this subdivision, the term "subsequent tax lien" shall mean 35 the water rents, sewer rents or sewer surcharges component of any tax 36 lien on property that becomes such on or after the date of sale of any 37 water rents, sewer rents or sewer surcharges component of any tax lien 38 on such property that has been sold pursuant to this chapter, provided 39 that the prior tax lien remains unpaid as of the date of the first 40 publication, pursuant to subdivision a of section 11-320 of this chap- 41 ter, of the notice of sale of the subsequent tax lien. Nothing in this 42 subdivision shall be deemed to limit the rights conferred by section 43 11-332 of this chapter on the holder of a tax lien certificate with 44 respect to a subsequent tax lien. 45 a-4. In addition to any sale authorized pursuant to subdivision a, 46 a-1, a-2 or a-3 of this section and notwithstanding any provision of 47 this chapter to the contrary, beginning on March first, two thousand 48 eleven, the emergency repair charges component or alternative enforce- 49 ment expenses and fees component, where such emergency repair charges 50 accrued on or after January first, two thousand six and are made a lien 51 pursuant to section 27-2144 of this code, or where such alternative 52 enforcement expenses and fees are made a lien pursuant to section 53 27-2153 of this code, of any tax lien on any class of real property, as 54 such real property is defined in subdivision one of section eighteen 55 hundred two of the real property tax law, may be sold by the city pursu- 56 ant to this chapter, where such emergency repair charges component orS. 8474 277 1 alternative enforcement expenses and fees component of such tax lien, as 2 of the date of the first publication, pursuant to subdivision a of 3 section 11-320 of this chapter, of the notice of sale: (i) shall have 4 remained unpaid in whole or in part for one year and (ii) equals or 5 exceeds the sum of one thousand dollars or, beginning on January first, 6 two thousand twelve, in the case of any class two residential property 7 owned by a company organized pursuant to article eleven of the private 8 housing finance law that is not a residential condominium or a residen- 9 tial cooperative, as such class of property is defined in subdivision 10 one of section eighteen hundred two of the real property tax law, for 11 two years, and equals or exceeds the sum of five thousand dollars; 12 provided, however, that such emergency repair charges component or 13 alternative enforcement expenses and fees component of such tax lien may 14 only be sold pursuant to this subdivision on any one, two or three fami- 15 ly residential real property in class one, where such one, two or three 16 family residential property in class one is not the primary residence of 17 the owner. After such sale, any such emergency repair charges component 18 or alternative enforcement expenses and fees component of such tax lien 19 may be transferred in the manner provided by this chapter. 20 a-5. In addition to any sale authorized pursuant to subdivision a, 21 a-1, a-2 or a-3 of this section and notwithstanding any provision of 22 this chapter to the contrary, beginning on March first, two thousand 23 eleven, a subsequent tax lien on any class of real property, or begin- 24 ning on January first, two thousand twelve in the case of any class two 25 residential property owned by a company organized pursuant to article 26 eleven of the private housing finance law that is not a residential 27 condominium or a residential cooperative, a subsequent tax lien on such 28 property, may be sold by the city pursuant to this chapter, regardless 29 of the length of time such subsequent tax lien, or any component of the 30 amount thereof, shall have remained unpaid, and regardless of the amount 31 of such subsequent tax lien. After such sale, any such subsequent tax 32 lien, or any component of the amount thereof, may be transferred in the 33 manner provided by this chapter. For purposes of this subdivision, the 34 term "subsequent tax lien" shall mean the emergency repair charges 35 component or alternative enforcement expenses and fees component, where 36 such emergency repair charges accrued on or after January first, two 37 thousand six and are made a lien pursuant to section 27-2144 of this 38 code, or where such alternative enforcement expenses and fees are made a 39 lien pursuant to section 27-2153 of this code, of any tax lien on prop- 40 erty that becomes such on or after the date of sale of any emergency 41 repair charges component or alternative enforcement expenses and fees 42 component, of any tax lien on such property that has been sold pursuant 43 to this chapter, provided that the prior tax lien remains unpaid as of 44 the date of the first publication, pursuant to subdivision a of section 45 11-320 of this chapter, of the notice of sale of the subsequent tax 46 lien. Nothing in this subdivision shall be deemed to limit the rights 47 conferred by section 11-332 of this chapter on the holder of a tax lien 48 certificate with respect to a subsequent tax lien. 49 a-6. Notwithstanding any provision of this chapter to the contrary, 50 beginning on September first, two thousand seventeen, a lien that 51 includes civil penalties for a violation of section 28-201.1 of this 52 code where such civil penalties accrued on or after July first, two 53 thousand seventeen, and became a lien pursuant to section 28-204.6.6 of 54 this code, may be sold by the city pursuant to this chapter, where such 55 civil penalties component of such lien, as of the date of the first 56 publication, pursuant to subdivision a of section 11-320 of this chap-S. 8474 278 1 ter, of the notice of sale (i) shall have remained unpaid in whole or in 2 part for one year or more and (ii) equals or exceeds the sum of one 3 thousand dollars. After such sale, any such civil penalties component of 4 such lien may be transferred in the manner provided by this chapter. 5 b. The commissioner of finance, on behalf of the city, may sell tax 6 liens, either individually, in combinations, or in the aggregate, pursu- 7 ant to the procedures provided herein. The commissioner of finance shall 8 establish the terms and conditions of a sale of a tax lien or tax liens. 9 1. (i) The commissioner of finance may, in his or her discretion, sell 10 a tax lien or tax liens through a competitive sale. In addition to the 11 advertisement and notice required to be provided pursuant to section 12 11-320 of this chapter, the commissioner of finance or his or her desig- 13 nee shall cause to be published a notice of intention to sell a tax lien 14 or tax liens through a competitive sale, which notice shall include the 15 terms and conditions for such sale, the criteria by which bids shall be 16 evaluated, and a request for any other information or documents that the 17 commissioner of finance may require. Such notice shall be published in 18 one newspaper of general circulation in the city, not less than fifteen 19 days prior to the date designated by the commissioner for the submission 20 of bids. 21 (ii) The commissioner of finance may, in his or her discretion, estab- 22 lish criteria for the eligibility of bidders pursuant to section 23 11-321.1 of this chapter. 24 (iii) The commissioner of finance may reject any or all bids, or may 25 accept any combination of bids in a competitive sale. 26 2. (i) The commissioner of finance may, in his or her discretion, sell 27 a tax lien or tax liens through a negotiated sale. In addition to the 28 advertisement and notice required to be provided pursuant to section 29 11-320 of this chapter, the commissioner of finance or his or her desig- 30 nee shall cause to be published a notice of intention to sell a tax lien 31 or tax liens through a negotiated sale, which notice shall advise that a 32 request for statements of interest is available at the office of the 33 department of finance, and which may require the submission of any 34 information or documents that the commissioner deems appropriate, 35 provided, however, that if the negotiated sale is to a trust or other 36 entity created by the city or in which the city has an ownership or 37 residual interest, then the requirement that the notice advise that a 38 request for statements of interest is available at the office of the 39 department of finance shall not apply. Such notice shall be published in 40 one newspaper of general circulation in the city, not less than fifteen 41 days prior to the date designated by the commissioner for the receipt of 42 statements of interest, or if the negotiated sale is to such trust or 43 other entity, then such notice shall be published not less than fifteen 44 days prior to the date of sale. For purposes of this subparagraph, the 45 words "date of sale" shall have the same meaning provided in subdivision 46 e of section 11-320 of this chapter. 47 (ii) The commissioner of finance may engage in a negotiated sale in 48 accordance with criteria to be established pursuant to section 11-321.1 49 of this chapter. 50 (iii) The commissioner of finance may execute a purchase and sale 51 agreement and other necessary agreements with a designated purchaser or 52 purchasers to complete a negotiated sale. 53 3. The commissioner of finance may establish a minimum price for the 54 sale of tax liens that may be at a discount from or premium to the lien 55 amount. Notwithstanding the preceding sentence, the commissioner of 56 finance may not establish a minimum price for the sale of an individualS. 8474 279 1 tax lien that is at a discount from the lien amount. The commissioner of 2 finance shall sell such tax liens at a purchase price that, in the 3 determination of such commissioner, is in the best interests of the 4 city. The commissioner of finance, in his or her discretion, may accept 5 cash or cash equivalent in immediately available funds, or other consid- 6 eration acceptable to the commissioner, or any combination thereof in 7 payment for a tax lien or tax liens. 8 4. The amount of a tax lien that is sold pursuant to this chapter 9 shall be the unpaid amount of the lien as of the date of sale, including 10 any interest and penalties thereon, any taxes, assessments, sewer rents, 11 sewer surcharges, water rents, any other charges that are made a lien 12 subject to the provisions of this chapter, the costs of any advertise- 13 ments and notices given pursuant to this chapter, any other charges that 14 are due and payable, any surcharge pursuant to section 11-332 of this 15 chapter, and interest and penalties thereon, or such component of the 16 amount thereof as shall be determined by the commissioner of finance, 17 notwithstanding the amount paid for purchase of the tax lien or compo- 18 nent of the amount thereof. For purposes of this paragraph, the words 19 "date of sale" shall have the same meaning provided in subdivision y of 20 section 11-320 of this chapter. 21 5. (i) The commissioner of finance may, subsequent to the offer for 22 sale of any tax lien or tax liens and the failure to complete such sale, 23 offer such tax lien or tax liens for sale again to any other person or 24 persons who satisfied the terms and conditions of the sale without 25 providing any additional advertisements or notices pursuant to this 26 chapter. 27 (ii) Notwithstanding subparagraph (i) of this paragraph, any tax lien 28 that was noticed for sale pursuant to this chapter, but was not sold on 29 the original date of sale, may be sold without any additional advertise- 30 ments or notices pursuant to this chapter if the subsequent date of sale 31 is within six months of the second publication, pursuant to subdivision 32 a of section 11-320 of this chapter, of the notice of the original date 33 of sale. If the subsequent date of sale is more than six months after 34 the second publication, pursuant to subdivision a of section 11-320 of 35 this chapter, of the notice of the original date of sale, then the 36 commissioner of finance, or his or her designee, shall provide notice of 37 the subsequent date of sale pursuant to subdivision b of section 11-320 38 of this chapter. No other additional advertisements or notices shall be 39 necessary prior to the date of sale. 40 6. The rate of interest on any tax lien certificate shall be the rate 41 adopted for nonpayment of taxes on real property, pursuant to subdivi- 42 sion (e) of section 11-224.1 of this title, that is in effect on January 43 first of the year in which the tax lien is sold. 44 7. It is the intent of the city that a sale of a tax lien or tax liens 45 pursuant to this chapter shall be a sale and not a borrowing. 46 8. Whenever any tax lien purchased at a tax lien sale is found to be 47 invalid, void or defective in whole or in part, or not to conform to any 48 representation or warranty with respect thereto, made by the commission- 49 er of finance in connection with the sale thereof, by judgment or decree 50 of a court of competent jurisdiction or by determination of the commis- 51 sioner of finance, the commissioner of finance may, in his or her 52 discretion, substitute for such tax lien or portion thereof another tax 53 lien that has a value equivalent to the value of the tax lien or portion 54 thereof found to be invalid, void, defective, or not to so conform, or 55 may refund such value of the tax lien or portion thereof found to be 56 invalid, void, defective, or not to so conform, or may use a combinationS. 8474 280 1 of substitution and refund. No other remedy shall be available to a 2 purchaser of a tax lien which is found to be invalid, void, defective, 3 or not to conform to a representation or warranty with respect thereto 4 made by the commissioner of finance in connection with the sale thereof, 5 in whole or in part. Whenever a tax lien of such equivalent value is to 6 be substituted for a tax lien that has been found invalid, void, defec- 7 tive, or not to so conform, in whole or in part, pursuant to this 8 section, the commissioner of finance or his or her designee shall 9 provide mailed notice of the intention to substitute such lien of such 10 equivalent value to any person required to be notified pursuant to 11 section 11-320(b) of this chapter. 12 9. The commissioner of finance may establish requirements for a 13 purchaser of a tax lien to provide any information and documents that 14 the commissioner of finance deems necessary, including information 15 concerning the collection and enforcement of tax liens. The commission- 16 er of finance shall require the purchaser of a tax lien to provide the 17 owner of property on which a tax lien has been sold pursuant to this 18 chapter a detailed itemization of taxes, interest, surcharges, and fees 19 charged to such owner on all tax lien statements of amounts due or bill 20 of charges. Such fees shall be bona fide, reasonable and, in the case of 21 attorneys' fees, customary. 22 10. (i) On and after January first, two thousand twelve, no tax lien 23 shall be sold pursuant to this chapter on any class two residential 24 property owned by a company organized pursuant to article eleven of the 25 private housing finance law that is a residential condominium or resi- 26 dential cooperative. If, notwithstanding the foregoing sentence, any 27 such tax lien is sold in error pursuant to this chapter on and after 28 January first, two thousand twelve on such property, then the provisions 29 of paragraph eight of this subdivision shall apply to such sale, includ- 30 ing the authority of the commissioner of finance to substitute for such 31 tax lien another tax lien that has a value equivalent to the value of 32 such tax lien or to refund the value of such tax lien. For the purposes 33 of this paragraph, property owned by such company shall be limited to 34 property owned for the purpose, as set forth in section five hundred 35 seventy-one of the private housing finance law, of providing housing for 36 families and persons of low income. 37 (ii) No later than May first, two thousand eleven, the commissioner of 38 finance, in consultation with the commissioner of housing preservation 39 and development, shall notify by mail any class two residential property 40 owned by a company organized pursuant to article eleven of the private 41 housing finance law that is not a residential condominium or residential 42 cooperative, of the authority of the commissioner of finance to sell the 43 tax liens on such property. Such notification shall include information 44 relating to the lien sale process, including, but not limited to, 45 actions homeowners can take if a lien is sold on such property; the type 46 of debt that can be sold in a lien sale; a timeline of statutory notifi- 47 cations required pursuant to section 11-320 of this chapter; a clear, 48 concise explanation of the consequences of the sale of a tax lien; the 49 telephone number and electronic mail address of the employee or employ- 50 ees designated pursuant to subdivision f of section 11-320 of this chap- 51 ter; a conspicuous statement that the owner of the property may enter 52 into a payment plan for exclusion from the tax lien sale; and credits 53 and property tax exemptions that may exclude a property from a tax lien 54 sale and any other credit or residential real property tax exemption 55 information, which, in the discretion of the commissioner of finance, 56 should be included in such notification.S. 8474 281 1 Upon such property owner's written request, or verbal request to 311 2 or any employee designated pursuant to subdivision f of section 11-320 3 of this chapter, a Chinese, Korean, Russian or Spanish translation of 4 such notice shall be provided promptly to such property owner. 5 11. No later than the first of September in the year next succeeding 6 the effective date of this section, the appropriate agency shall promul- 7 gate rules identifying or describing any existing procedures governing 8 challenges to the validity of any real property tax, sewer rent, sewer 9 surcharge, water rent, emergency repair charge or alternative enforce- 10 ment expense or fee. 11 12. On or after January first, two thousand fifteen and before January 12 first, two thousand seventeen, no tax lien shall be sold pursuant to 13 this chapter on the following properties: (i) properties enrolled in the 14 city's Build It Back Program; and (ii) properties defined as "eligible 15 real property" pursuant to subdivision three of section four hundred 16 sixty-seven-g of the real property tax law. If, notwithstanding the 17 foregoing sentence, any such tax lien is sold in error pursuant to this 18 chapter during such time period on properties described in subparagraph 19 (i) or (ii) of this paragraph, then the provisions of paragraph eight of 20 this subdivision shall apply to such sale, including the authority of 21 the commissioner of finance to substitute for such tax lien another tax 22 lien that has a value equivalent to the value of such tax lien or to 23 refund the value of such lien. 24 13. Notwithstanding any provision of this chapter to the contrary, no 25 tax lien shall be sold pursuant to this chapter on any of the following 26 properties: (i) any real property for which the owner in good faith has 27 submitted an application that is pending with the department of finance 28 for a real property tax exemption pursuant to section four hundred twen- 29 ty-a, four hundred twenty-b, four hundred forty-six, or four hundred 30 sixty-two of the real property tax law; and (ii) any real property for 31 which the owner has in good faith filed an appeal with the tax commis- 32 sion of a denial of any such application and such appeal is pending. 33 There shall be a rebuttable presumption that an application or an appeal 34 referenced in the preceding sentence was not submitted in good faith 35 where, within the twenty-four months preceding the submission of such 36 application or such appeal, the period for the filing of an appeal of a 37 denial by the department of finance of a previous application for a real 38 property tax exemption pursuant to section four hundred twenty-a, four 39 hundred twenty-b, four hundred forty-six, or four hundred sixty-two of 40 the real property tax law has expired. 41 § 11-320 Notice of sale to be advertised and mailed. a. 1. The tax 42 lien on property in the city shall not be sold pursuant to section 43 11-319 of this chapter unless notice of such sale as provided herein has 44 been published twice, the first publication to be in a newspaper of 45 general circulation in the city, not less than ninety days preceding the 46 date of the sale, and the second publication to be in a publication 47 designated by the commissioner of finance, not less than ten days 48 preceding the date of the sale. Such publication shall include a 49 description by block and lot or by such other identification as the 50 commissioner of finance may deem appropriate, of the property upon which 51 the tax lien exists that may be included in the sale, and a statement 52 that a list of the tax liens that may be included in the sale is avail- 53 able for inspection in the office of the city register and the office of 54 the county clerk. The commissioner of finance shall file such list in 55 the office of the city register and the office of the county clerk not 56 less than ninety days prior to the date of sale.S. 8474 282 1 2. Not less than ninety days preceding the date of the sale, the 2 commissioner of finance shall post online, to the extent such informa- 3 tion is available, the borough, block and lot of any property on which a 4 lien has been or will be noticed for sale in accordance with paragraph 5 one of this subdivision and that, in one or more of the five fiscal 6 years preceding the date of the sale, was in receipt of a real property 7 tax exemption pursuant to section four hundred twenty-a, four hundred 8 twenty-b, four hundred forty-six or four hundred sixty-two of the real 9 property tax law and, in addition, shall post online, to the extent such 10 information is available, the borough, block and lot of any vacant land 11 classified as class one or class four pursuant to section eighteen 12 hundred two of the real property tax law on which a lien has been or 13 will be noticed for sale in accordance with paragraph one of this subdi- 14 vision. Any failure to comply with this paragraph shall not affect the 15 validity of any sale of tax liens pursuant to this chapter. 16 b. 1. A tax lien shall not be sold unless the commissioner of finance, 17 or his or her designee, notifies the owner of record at the address of 18 record and any other person who has registered pursuant to section 19 11-309 of this chapter, or pursuant to section 11-416 or 11-417 of this 20 title, by first class mail, of the intention to sell the tax lien. If no 21 such registrations have been filed then such commissioner, or his or her 22 designee, shall notify the person whose name and address, if any, 23 appears in the latest annual record of assessed valuations, by first 24 class mail, of the intention to sell the tax lien. Such mailed notice 25 shall include a description of the property by block and lot and such 26 other identifying information as the commissioner of finance may deem 27 appropriate, the amount of the tax lien, including all taxes, assess- 28 ments, sewer rents, sewer surcharges, water rents, any other charges 29 that are made a lien subject to the provisions of this chapter, as well 30 as an estimate of the costs of any advertisements and notices given 31 pursuant to this chapter, any other charges that are due and payable on 32 the date specified in such publication, a surcharge pursuant to section 33 11-332 of this chapter if the tax lien is sold, and interest and penal- 34 ties thereon, and shall be mailed to such owner and such other persons 35 four times: not less than ninety, sixty, thirty and ten days prior to 36 the date of sale. Such notice shall state that if default continues to 37 be made in payment of the amounts due on such property, the tax lien on 38 such property shall be sold as provided in section 11-319 of this chap- 39 ter. If, notwithstanding such notice, the owner shall continue to refuse 40 or neglect to pay the amounts due on such property, the commissioner of 41 finance may sell the tax lien on such property as provided in section 42 11-319 of this chapter. 43 2. (i) Such notices shall also include, with respect to any property 44 owner in class one or class two, as such classes of property are defined 45 in subdivision one of section eighteen hundred two of the real property 46 tax law, an exemption eligibility checklist. The exemption eligibility 47 checklist shall also be posted on the website of the department of 48 finance no later than the first business day after March fifteenth of 49 every year prior to the date of sale, and shall continue to be posted on 50 such website until ten days prior to the date of sale. Within ten busi- 51 ness days of receipt of a completed exemption eligibility checklist from 52 such property owner, provided that such receipt occurs prior to the date 53 of sale of any tax lien or tax liens on his or her property, the depart- 54 ment of finance shall review such checklist to determine, based on the 55 information provided by the property owner, whether such property owner 56 could be eligible for any exemption, credit or other benefit that wouldS. 8474 283 1 entitle them to be excluded from a tax lien sale and, if the department 2 determines that such property owner could be eligible for any such 3 exemption, credit or other benefit, shall mail such property owner an 4 application for the appropriate exemption, credit or other benefit. If, 5 within twenty business days of the date the department mailed such 6 application, the department of finance has not received a completed 7 application from such property owner, such department shall mail such 8 property owner a second application, and shall telephone the property 9 owner, if the property owner has included his or her telephone number on 10 the exemption eligibility checklist. 11 (ii) Any such property owner who returns to the department of finance 12 a completed exemption eligibility checklist prior to the date of sale of 13 any tax lien or tax liens on his or her property and who subsequently 14 submits a completed application for the appropriate exemption, credit or 15 other benefit either prior to, on or up to ninety days after such sale, 16 shall have his or her application reviewed by the department of finance. 17 If, prior to the date of sale, the department of finance determines that 18 such property owner is qualified for such exemption, credit or other 19 benefit or will be qualified as of the date of sale, then the tax lien 20 or tax liens on his or her property shall not be sold on such date. If, 21 on or after the date of sale, the department of finance determines that 22 such property owner is or was qualified for such exemption, credit or 23 other benefit as of the date of sale, then any tax lien or tax liens on 24 his or her property that were sold shall be deemed defective. 25 (iii) Not later than thirty days prior to such date of sale, the 26 department of finance shall submit to the council a list, disaggregated 27 by council district, of all properties for which property owners 28 returned a completed eligibility checklist to the department of finance 29 at least thirty-five days prior to the date of sale, but for which prop- 30 erty owners have not yet submitted a completed application for the 31 appropriate exemption, credit or other benefit. 32 (iv) Not later than thirty days after such date of sale, the depart- 33 ment of finance shall submit to the council a list, disaggregated by 34 council district, of all properties for which property owners returned a 35 completed eligibility checklist to the department of finance prior to 36 the date of sale, but for which property owners have not yet submitted a 37 completed application for the appropriate exemption, credit or other 38 benefit. 39 (v) Upon the written or verbal request of such property owner, the 40 department of finance shall provide prompt assistance to such property 41 owner in completing an application for the appropriate exemption, credit 42 or other benefit. 43 2-a. If, prior to the date of sale, the department of finance confirms 44 that a property is the subject of (i) a judicial proceeding or (ii) an 45 investigation or a prosecution by any agency or office of the United 46 States or any state or subdivision thereof with regard to the ownership 47 of such property arising from the fraudulent transmittal of a deed 48 relating to such property, such department shall remove such property 49 from the sale, provided that the owner of such property has provided an 50 affidavit to such department and any such other documentation required 51 by such department to establish that such property is the subject of 52 such a proceeding, investigation or prosecution. Any such removal shall 53 relate only to the sale of a tax lien or tax liens for which the owner 54 has received notice pursuant to paragraph one of subdivision b of this 55 section. Failure by the department of finance to remove such propertyS. 8474 284 1 shall not affect the validity of any sale of tax liens pursuant to this 2 chapter. 3 3. The notice provided not less than ninety days prior to the date of 4 sale shall also include information relating to the lien sale process, 5 including, but not limited to, actions homeowners can take if a lien is 6 sold on such property; the type of debt that can be sold in a lien sale; 7 a timeline of statutory notifications required pursuant to this section; 8 a clear, concise explanation of the consequences of the sale of a tax 9 lien; the telephone number and electronic mail address of the employee 10 or employees designated pursuant to subdivision f of this section; a 11 conspicuous statement that the owner of the property may enter into a 12 payment plan for exclusion from the tax lien sale; and credits and prop- 13 erty tax exemptions that may exclude certain class one real property 14 from a tax lien sale. Such notice shall also include information on the 15 following real property tax exemptions, credits or other benefits: 16 (i) the senior citizen homeowner exemption pursuant to section 17 11-245.3 of this title; 18 (ii) the exemption for persons with disabilities pursuant to section 19 11-245.4 of this title; 20 (iii) the exemption for veterans pursuant to section four hundred 21 fifty-eight of the real property tax law, with respect to real property 22 purchased with payments received as prisoner of war compensation from 23 the United States government; 24 (iv) the exemption for veterans pursuant to paragraph (b) or (c) of 25 subdivision two of section four hundred fifty-eight-a of the real prop- 26 erty tax law; 27 (v) the state circuit breaker income tax credit pursuant to subsection 28 (e) of section six hundred six of the tax law; and 29 (vi) the active duty military personnel benefit pursuant to department 30 of finance memorandum 05-3, or any successor memorandum thereto. 31 Upon such property owner's written request, or verbal request to 311 32 or any employee designated pursuant to subdivision f of this section, a 33 Chinese, Korean, Russian or Spanish translation of such notice shall be 34 provided promptly to such property owner. 35 4. Such notice shall also include, with respect to a property that was 36 in receipt of a real property tax exemption pursuant to section four 37 hundred twenty-a, four hundred twenty-b, four hundred forty-six, or four 38 hundred sixty-two of the real property tax law in one or more of the 39 three fiscal years preceding the date of the notice provided not less 40 than ninety days prior to the date of sale, or with respect to a proper- 41 ty in class four, as such class of property is defined in subdivision 42 one of section eighteen hundred two of the real property tax law, infor- 43 mation relating to the initial application and renewal process for such 44 property tax exemptions, and other actions available to the owner of 45 such property in the event such property is noticed for sale pursuant to 46 this subdivision, including, if available, an adjustment or cancellation 47 of back taxes. Upon request of the owner of such property, a translation 48 of such notice in any of the top ten languages most commonly spoken 49 within the city as determined by the department of city planning shall 50 be provided to such owner. 51 5. The department of finance and the department of environmental 52 protection shall, to the extent practicable, contact by telephone or 53 electronic mail any person who (i) has registered their telephone number 54 or electronic mail address with such departments and (ii) has received 55 the ninety-day notice described in paragraph one of this subdivision. 56 Any such contact shall be made within a time period reasonably proximateS. 8474 285 1 to the mailing of such notice, shall inform such person of the intention 2 to sell a tax lien and shall provide such other information as the 3 respective commissioner deems appropriate, which may include, but need 4 not be limited to, the telephone numbers and electronic mail addresses 5 of the employees designated pursuant to subdivision f of this section. 6 The department of finance shall contact by electronic mail any person 7 who has registered pursuant to subdivision a of section 11-245.8 of this 8 title to receive information about the outreach sessions described in 9 subdivision j of this section and provide such information within a time 10 period reasonably proximate to the scheduled outreach session. Failure 11 by the department of finance or the department of environmental 12 protection to contact any such person by telephone or electronic mail 13 shall not affect the validity of any sale of tax liens pursuant to this 14 chapter. 15 c. Such notices shall advise the owner of such property of his or her 16 continued obligation to pay the amounts due on such property. No other 17 notices or demands shall be required to be made to the owner of such 18 property to authorize the sale of a tax lien or tax liens on such prop- 19 erty pursuant to section 11-319 of this chapter. 20 c-1. Where a tax lien on property in the city has been noticed for 21 sale pursuant to subdivision b of this section and such lien, prior to 22 the date of sale, has been paid or is otherwise determined by the 23 commissioner of finance not to be eligible to be sold, such commissioner 24 shall promptly provide written notification to the owner of such proper- 25 ty that such lien will not be or was not included in such sale and the 26 reason therefor. 27 d. 1. The commissioner of finance or his or her designee shall, within 28 ninety days after the delivery of the tax lien certificate, notify any 29 person who was required to be notified of such sale pursuant to subdivi- 30 sion (b) of section 11-320 of this chapter, by first class mail, that 31 such sale has occurred. Such notice shall state the date of the sale of 32 the tax lien, the name and address of the purchaser of the tax lien, the 33 amount of such lien, a description of the property by block and lot and 34 such other identifying information as the commissioner of finance or his 35 or her designee shall deem appropriate, and the terms and conditions of 36 the tax lien certificate, including the right to satisfy the lien within 37 the time periods specified in this chapter. Such notice shall also 38 include the telephone number and electronic mail address of the employee 39 or employees designated pursuant to subdivision f of this section. 40 2. Any written communication from the purchaser of the tax lien or 41 liens to an owner of property, on which a tax lien has been sold pursu- 42 ant to the provisions of this chapter, shall include the following 43 information: 44 (i) an explanation of the roles of the purchaser of the tax lien and 45 the employee or employees designated pursuant to subdivision f of this 46 section; 47 (ii) the names and contact information, including the telephone 48 number, electronic mail and mailing addresses of such persons; and 49 (iii) a statement informing such owner that he or she may be eligible 50 to enter into a forbearance agreement with the purchaser of such tax 51 lien. 52 3. The requirement to send such written communication shall be subject 53 to federal, state and local debt collection laws. 54 4. Failure to provide notice pursuant to this subdivision shall not 55 affect the validity of any sale of a tax lien or tax liens pursuant to 56 this chapter.S. 8474 286 1 e. The words "date of sale" when used in this section shall mean: 2 (1) for a negotiated sale, the date of signing of the tax lien 3 purchase agreement, and (2) for a competitive sale, the date designated 4 by the commissioner of finance for the submission of bids. 5 f. The commissioner of finance shall designate an employee of the 6 department to respond to inquiries from owners of property for which a 7 tax lien has been sold or noticed for sale pursuant to subdivision a of 8 this section and shall designate an employee of the department to 9 respond to inquiries from owners sixty-five years of age or older of 10 property for which a tax lien has been sold or noticed for sale pursuant 11 to subdivision a of this section. The commissioner of environmental 12 protection shall designate at least one employee of the department of 13 environmental protection to respond to inquiries from owners of property 14 for which a tax lien containing a water rents, sewer rents or sewer 15 surcharges component has been sold or noticed for sale pursuant to 16 subdivision a of this section. The telephone numbers and electronic mail 17 addresses of employees designated pursuant to this subdivision shall be 18 posted online and shall be included on all publications and notices 19 required by subdivisions a and b of this section. Failure to include 20 such numbers and addresses on all such publications and notices shall 21 not affect the validity of any sale of tax liens pursuant to this chap- 22 ter. 23 g. No later than one hundred twenty days after the tax lien sale, the 24 commissioner of finance shall submit to the council a list of all prop- 25 erties, identified by block and lot, noticed for sale pursuant to subdi- 26 vision b of this section. Such list shall also include a description of 27 the disposition of such properties that shall include, but not be limit- 28 ed to, whether an owner entered into a payment plan with the city pursu- 29 ant to section 11-322 or 11-322.1 of this chapter, whether an owner 30 satisfied the tax lien or liens, whether ownership of the property was 31 transferred, provided that such information is available to the city, or 32 whether the property was distressed, as defined in subdivision four of 33 section 11-401 of this title, or removed from the sale pursuant to the 34 discretion of the commissioner of housing preservation and development. 35 h. 1. On a quarterly basis, a purchaser of tax liens shall provide to 36 the council a list of all properties on which tax liens have been sold 37 where, subsequent to such sale, there has been a transfer of ownership 38 of the property, provided that a purchaser of tax liens has knowledge of 39 such transfers, for the following groups: 40 (i) all properties on which liens for emergency repair charges or 41 alternative enforcement expenses and fees have been sold to such 42 purchaser pursuant to subdivision a-4 of section 11-319 of this chapter; 43 and 44 (ii) all class two residential property owned by a company organized 45 pursuant to article eleven of the private housing finance law that is 46 not a residential condominium or a residential cooperative on which any 47 tax lien has been sold pursuant to subdivision a, a-2 or a-4 of section 48 11-319 of this chapter. 49 2. When available, a purchaser of tax liens shall include the names 50 and contact information of the new owners of record of such properties. 51 i. On a quarterly basis, a purchaser of tax liens shall provide to the 52 council a property status report. For each property, such report shall 53 include: (1) information about such property, including property tax 54 class; property type; description of the tax lien or tax liens that have 55 been sold to such purchaser on such property pursuant to this chapter, 56 including the amount of the tax lien or tax liens, the costs of anyS. 8474 287 1 advertisements and notices given pursuant to this chapter; the amount of 2 the surcharge pursuant to section 11-332 of this chapter; and the amount 3 of interest and penalties thereon; and (2) the status of the tax lien or 4 tax liens, including foreclosure information, if applicable; whether the 5 property owner entered into an installment agreement; whether the prop- 6 erty owner is current on such installment agreement; and whether the tax 7 lien or tax liens on such property have been deemed defective, and, if 8 so, the reason any such lien or liens were deemed defective. Each prop- 9 erty listed in the report shall be identified by block and lot. 10 j. (1) At the request of a council member, the commissioner of 11 finance, in consultation with the commissioner of housing preservation 12 and development and the commissioner of environmental protection, may 13 conduct outreach sessions in the district of such council member, 14 provided, however, that, the commissioner of finance shall conduct such 15 outreach sessions in the ten council districts with the greatest number 16 of properties for which a notice of intention to sell a tax lien has 17 been mailed ninety days prior to the date of sale pursuant to paragraph 18 one of subdivision b of this section, and provided, further, however, 19 that, such commissioner shall conduct additional outreach sessions in 20 the five council districts with the greatest number of properties for 21 which a notice of intention to sell a tax lien has been mailed ninety 22 days prior to the date of sale pursuant to such paragraph. To the extent 23 practicable, the commissioner of finance shall schedule the outreach 24 sessions in the five council districts described in the preceding 25 sentence such that one occurs prior to the mailing of the notice of 26 intention to sell a tax lien that is required to be mailed thirty days 27 prior to the date of sale pursuant to paragraph one of subdivision b of 28 this section and one occurs subsequent to such mailing. The scope of 29 such outreach sessions shall include, but need not be limited to, (i) 30 actions property owners can take if a lien is sold on such property; 31 (ii) the type of tax lien or tax liens that can be sold in a tax lien 32 sale; (iii) installment agreement information, including informing 33 attendees in such outreach sessions of their option to enter into an 34 installment agreement for exclusion from the tax lien sale with no down 35 payment, with options for income-based installment agreements or 36 installment agreements with a term of up to ten years; (iv) credits and 37 property tax exemptions that may exclude a property from a tax lien 38 sale; (v) distribution of a customer survey to property owners who have 39 received notice of the intention to sell a tax lien on their property, 40 in order to determine the circumstances that led to the creation of the 41 lien; and (vi) any other credit or residential real property tax 42 exemption information, which, in the discretion of the commissioner of 43 finance, should be included in such outreach sessions. (2) The commis- 44 sioner of finance shall make a good faith effort to have a financial 45 counselor available at such outreach sessions. No later than ninety days 46 after the tax lien sale, the commissioner of finance shall submit to the 47 council a report on the number of outreach sessions performed in each 48 council district during the ninety-day period preceding the tax lien 49 sale. Such report shall include: (i) the number of installment agree- 50 ments begun by property owners or, as defined in subdivision b of 51 section 11-322 of this chapter, other eligible persons acting on behalf 52 of property owners at each outreach session; (ii) the number of property 53 tax exemption applications begun at each outreach session; (iii) the 54 total number of attendees at each outreach session; (iv) the number of 55 outreach sessions at which a financial counselor was available; (v) the 56 number of property owners, or other eligible persons acting on behalf ofS. 8474 288 1 property owners, who consulted a financial counselor at each outreach 2 session at which a financial counselor was available; and (vi) the 3 results of such surveys. Such report and the results of each outreach 4 session shall be disaggregated by council district. 5 k. The commissioner of finance shall post online the information 6 reported to the council pursuant to subdivisions h and i of this 7 section, provided that no information shall be posted online that 8 specifically identifies any property or property owner, except by zip 9 code and a randomly generated identifier. 10 § 11-321 Continuation of sale; notice required. A sale of a tax lien 11 or tax liens may be continued from time to time, if necessary, until all 12 the tax liens on the property so advertised and noticed shall be sold 13 unless such sale is canceled or postponed in accordance with section 14 11-322 or 11-322.1 of this chapter. If a sale of a tax lien or tax liens 15 is continued, the commissioner of finance, or his or her designee, shall 16 give such notice as is practicable of such continuation. 17 § 11-322 Postponement or cancellation of sales; installment agree- 18 ments. a. It shall be lawful for the commissioner of finance, or his or 19 her designee, to postpone or cancel any proposed sale of a tax lien or 20 tax liens on property that shall have been advertised and noticed for 21 sale prior to the date of sale. For purposes of this section, the words 22 "date of sale" shall have the same meaning provided in subdivision e of 23 section 11-320 of this chapter. The city shall not be liable for any 24 damages as a result of cancellation or postponement of a proposed sale 25 of a tax lien or tax liens, nor shall any cause of action arise from 26 such cancellation or postponement. 27 b. In accordance with rules promulgated by the commissioners of 28 finance and environmental protection, a property owner, or other eligi- 29 ble person, as defined by rule, acting on behalf of an owner, may enter 30 into agreements with the departments of finance and environmental 31 protection for the payment in installments of any delinquent real prop- 32 erty taxes, assessments, sewer rents, sewer surcharges, water rents, or 33 any other charges that are made a lien subject to the provisions of this 34 chapter. The proposed sale of a tax lien or tax liens on property shall 35 be cancelled when a property owner, or other eligible person acting on 36 behalf of an owner, enters into an agreement with the respective agency 37 for the payment of any such lien. Such rules shall also provide that 38 such property owners or such other eligible persons be given information 39 regarding eligibility for real property tax exemption programs prior to 40 entering into such agreements. As used in this subdivision, the term 41 "other eligible person" shall include a fiduciary, as defined in para- 42 graph three of subdivision (a) of section 11-1.1 of the estates, powers 43 and trusts law, acting with respect to the administration of the proper- 44 ty of an estate of a decedent who owned the real property as to which an 45 agreement under this subdivision is sought, or on behalf of a benefici- 46 ary of such real property from such estate. Any rules promulgated in 47 accordance with this subdivision defining "other eligible person" shall 48 include in such definition the means by which a beneficiary of real 49 property of the estate of a decedent who owned real property as to which 50 an agreement under this subdivision is sought meets the definition of 51 "other eligible person". Such means shall include the furnishing of any 52 death certificates or other relevant documents that substantiate the 53 claim of a beneficiary that they are the legal owner of the property. 54 Notwithstanding any other provision of this section, no more than one 55 such agreement with each respective agency may be in effect for a prop- 56 erty at any one time.S. 8474 289 1 1. If payments required from a property owner, or other eligible 2 person acting on behalf of an owner, pursuant to such an agreement are 3 not made for a period of six months, such property owner, or such other 4 eligible person, shall be in default of such agreement, and the tax lien 5 or tax liens on the subject property may be sold, provided, however, 6 that such default may be cured upon such property owner's, or such other 7 eligible person's, bringing all installment payments and all current 8 charges that are outstanding at the time of the default to a current 9 status, which shall include, but not be limited to, any outstanding 10 interest and fees, prior to the date of sale, provided, however, that 11 such property owner, or such other eligible person, may elect to cure 12 such default by entering into a new installment agreement with a down 13 payment of twenty percent or more, of all delinquent real property 14 taxes, assessments, sewer rents, sewer surcharges, water rents and other 15 charges that are made a lien subject to the provisions of this chapter, 16 including any outstanding interest and fees, prior to the date of sale. 17 If such default is not cured prior to the date of sale, such property 18 owner, and any other eligible person acting on behalf of an owner, shall 19 not be eligible to enter into an installment agreement for the subject 20 property for five years, unless there is a finding of extenuating 21 circumstances by the department that entered into the installment agree- 22 ment with the property owner or such other eligible person. Notwith- 23 standing the prohibition against entering into an installment agreement 24 for the subject property for five years, a property owner, or such other 25 eligible person, who has defaulted on an installment agreement and whose 26 lien has been sold and, subsequent to the sale of the lien, whose prop- 27 erty on which the lien was sold is subject to another tax lien that is 28 eligible to be sold, may elect to enter into another installment agree- 29 ment with respect to such other lien before the end of such five-year 30 period, provided that such property owner, or such other eligible 31 person, makes a down payment of twenty percent or more, of all delin- 32 quent real property taxes, assessments, sewer rents, sewer surcharges, 33 water rents and other charges that are made a lien subject to the 34 provisions of this chapter, including any outstanding interest and fees, 35 prior to the date of the sale. No such property owner, or such other 36 eligible person, may make the election that is authorized pursuant to 37 this paragraph to enter into an installment agreement with a down 38 payment more than once for the subject property. The standards relating 39 to defaults and cures of defaults of installment agreements set forth in 40 this paragraph apply to installment agreements entered into pursuant to 41 such election. 42 2. An installment agreement shall provide for payments by the property 43 owner, or other eligible person acting on behalf of an owner, on a quar- 44 terly or monthly basis, for a period not less than eight years and not 45 more than ten years, provided that a property owner, or other eligible 46 person acting on behalf of an owner, may elect a period less than eight 47 years. Except as provided in paragraph one of this subdivision, there 48 shall be no down payment required upon the property owner's, or such 49 other eligible person's, entering into the installment agreement with 50 the respective department, but the property owner, or other eligible 51 person acting on behalf of an owner, may elect to make a down payment. 52 With respect to installment agreements with the commissioner of environ- 53 mental protection, the determination of whether payments shall be on a 54 quarterly or monthly basis shall be in the discretion of such commis- 55 sioner, except as provided in paragraph three of this subdivision. With 56 respect to installment agreements with the commissioner of finance, theS. 8474 290 1 determination of whether payments shall be on a quarterly or monthly 2 basis shall be in the discretion of the property owner, or other eligi- 3 ble person acting on behalf of an owner. 4 3. Beginning on January first, two thousand twelve, any property owner 5 who has entered into an installment agreement with the commissioner of 6 environmental protection pursuant to this subdivision and who has auto- 7 mated meter reading shall receive a consolidated monthly bill for 8 current sewer rents, sewer surcharges and water rents and any payment 9 due under such installment agreement. 10 4. No later than September first, two thousand eleven, the commission- 11 ers of finance and environmental protection shall promulgate rules 12 governing installment agreements, including but not limited to, the 13 terms and conditions of such agreements, the payment schedules, and the 14 definition and consequences of default; no later than June first, two 15 thousand fourteen, the commissioners of finance and environmental 16 protection shall promulgate rules governing eligibility of owners or 17 other eligible persons acting on behalf of owners to enter into install- 18 ment agreements. 19 5. All installment agreements executed on or after March first, two 20 thousand fifteen shall include a conspicuous statement that if payments 21 required from a property owner pursuant to such an agreement are not 22 made for a period of six months, such property owner shall be in default 23 of such agreement, and the tax lien or tax liens on the subject property 24 may be sold, provided, however, that such default may be cured upon such 25 property owner's bringing all installment payments and all current 26 charges that are outstanding at the time of the default to a current 27 status, which shall include, but not be limited to, any outstanding 28 interest and fees, prior to the date of sale. Such statement shall also 29 include a notification that if such default is not cured prior to the 30 date of sale, such property owner shall not be eligible to enter into an 31 installment agreement for the subject property for five years, unless 32 there is a finding of extenuating circumstances in accordance with rules 33 promulgated by the department that entered into the installment agree- 34 ment with the property owner. Such statement shall include the defi- 35 nition of extenuating circumstances. All installment agreements shall 36 also include a statement describing the conditions under which the prop- 37 erty owner, or any other eligible person acting on behalf of an owner, 38 may be eligible, after default, to enter into another installment agree- 39 ment after such default, in accordance with paragraph one of this subdi- 40 vision. 41 6. If a property owner, or other eligible person acting on behalf of 42 an owner, who has entered into an installment agreement with the depart- 43 ment of finance, fails to make a payment pursuant to such agreement, 44 then the department of finance shall, after the first missed payment, 45 mail a letter to the property owner, or other eligible person acting on 46 behalf of an owner, stating that such owner, or other eligible person, 47 is at risk of being in default of such agreement. The letter shall be 48 mailed after the first missed payment if the department has not received 49 payment within two weeks of the due date. 50 c. No later than January thirty-first, two thousand twenty-four, and 51 no later than every January thirty-first thereafter, the department of 52 finance shall submit a report to the mayor and to the speaker of the 53 council on real property with an assessed value of two hundred fifty 54 thousand dollars or less for which: (A) the owner of such real property 55 has entered into an agreement pursuant to this section for the payment 56 in installments of real property taxes, assessments or other chargesS. 8474 291 1 that are made a lien subject to the provisions of chapter three of this 2 title other than water rents, sewer rents, or sewer surcharges; and (B) 3 such unpaid taxes are subject to the interest rate described in subdivi- 4 sion e of section 11-313 of this chapter for the preceding calendar 5 year, including, but not limited to the following data: 6 1. the number of such agreements executed during the preceding calen- 7 dar year; 8 2. the number of such agreements that were in effect on December thir- 9 ty-first of the preceding calendar year; 10 3. the number of applications for such agreements that were received 11 during the preceding calendar year, and the number of such applications 12 that were not approved; 13 4. the average amount of property taxes and charges subject to such 14 agreements; and 15 5. the number of such agreements that entered into default and the 16 number of defaults that were cured. 17 § 11-322.1 Hardship installment agreements. a. Definitions. For 18 purposes of this section, the following terms have the following mean- 19 ings: 20 1. Applicant. The term "applicant" means a property owner who files an 21 application for an installment agreement under this section. Such term 22 includes a property owner who has entered into an installment agreement 23 after filing such an application. 24 2. Default. The term "default" means that an installment payment 25 required under the installment agreement entered into under this section 26 remains unpaid in whole or in part for six months from the date payment 27 is required to be made, or any other tax or charge that becomes due on 28 the property during the term of such agreement remains unpaid in whole 29 or in part for six months. 30 3. Department. The term "department" means the department of finance. 31 4. Dwelling unit. The term "dwelling unit" means a unit in a condomin- 32 ium used primarily for residential purposes. 33 5. Fair market value. The term "fair market value" means the fair 34 market value of property as determined by the department or the fair 35 market value as determined by an appraisal obtained by the applicant 36 pursuant to paragraph four of subdivision g of this section, provided 37 that such appraisal shall be subject to review, and may be rejected, by 38 the department. 39 6. Income. The term "income" means the adjusted gross income for 40 federal income tax purposes as reported on an applicant's federal or 41 state income tax return for the applicable income tax year, subject to 42 any subsequent amendments or revisions; provided that if no such return 43 was filed for the applicable income tax year, "income" means the 44 adjusted gross income that would have been so reported if such a return 45 had been filed. 46 7. Income tax year. The term "income tax year" means the most recent 47 calendar year or fiscal year for which an applicant filed a federal or 48 state income tax return. 49 8. Net equity. The term "net equity" means the fair market value of 50 property minus any liabilities outstanding against such property, such 51 as mortgages, outstanding property taxes, water and sewer charges, and 52 any other liens on such property. 53 9. Property. The term "property" means real property classified as 54 class one pursuant to section eighteen hundred two of the real property 55 tax law or a dwelling unit in a condominium.S. 8474 292 1 10. Property owner. The term "property owner" means an owner of real 2 property classified as class one pursuant to section eighteen hundred 3 two of the real property tax law or of a dwelling unit in a condominium, 4 or other eligible person, as defined in subdivision (i) of section 40-03 5 of title nineteen of the rules of the city of New York, acting on behalf 6 of such owner. 7 b. A property owner who satisfies the requirements described in subdi- 8 vision c and d, e or f of this section may enter into an agreement with 9 the department pursuant to this section for the payment in installments 10 of real property taxes, assessments or other charges that are made a 11 lien subject to the provisions of this chapter, except for sewer rents, 12 sewer surcharges or water rents. The entry into an installment agreement 13 pursuant to this section shall not suspend the accrual of interest 14 charged against the property pursuant to section 11-301 of this chapter. 15 A property owner may only have one installment agreement with the 16 department in effect at any one time. 17 c. Eligibility requirements for an installment agreement under this 18 section. To be eligible to enter into an installment agreement pursuant 19 to this section, an applicant must demonstrate that the following 20 requirements are met: 21 1. The applicant is a property owner. 22 2. The property shall have been the primary residence of the applicant 23 for an uninterrupted period of not less than one year immediately 24 preceding the date the application for the installment agreement is 25 submitted and continues to be the primary residence of the applicant 26 through the date the installment agreement is entered into. Hospitali- 27 zation or a temporary stay in a nursing home or rehabilitation facility 28 for a period of not more than three years shall not be considered a 29 change in primary residence. 30 3. The combined income of the applicant and of all the additional 31 property owners may not exceed eighty-six thousand four hundred dollars 32 for the income tax year immediately preceding the date of the applica- 33 tion for the installment agreement. The department shall promulgate 34 rules that establish a process for an applicant to seek an exception 35 from the requirement that income information from all additional proper- 36 ty owners be provided in cases of hardship. 37 d. Eligibility requirement for senior low-income installment agree- 38 ment. In addition to the requirements set forth in subdivision c of this 39 section, to be eligible to enter into a senior low-income installment 40 agreement pursuant to subdivision l of this section, an applicant must 41 be sixty-five years of age or older when the application is submitted. 42 e. Eligibility requirement for fixed length income-based installment 43 agreement. To be eligible to enter into a fixed length income-based 44 installment agreement pursuant to subdivision m of this section, an 45 applicant must satisfy the requirements set forth in subdivision c of 46 this section. 47 f. Eligibility requirements for extenuating circumstances income-based 48 installment agreement. In addition to the requirements set forth in 49 subdivision c of this section, for an applicant to be eligible to enter 50 into an extenuating circumstances income-based installment agreement 51 pursuant to subdivision n of this section, the department must make a 52 finding of extenuating circumstances pursuant to the process described 53 in paragraph four of subdivision (e) of section 40-03 of title nineteen 54 of the rules of the city of New York. 55 g. Initial application procedure. 1. An initial application for an 56 installment agreement under this section shall include:S. 8474 293 1 (a) for installment agreements that provide for the payment of taxes 2 and charges that will accrue after the date of the installment agree- 3 ment, a title search identifying all mortgages and other liens on the 4 property; and 5 (b) the signature of a primary resident of the property, and if such 6 primary resident does not hold an ownership interest of at least fifty 7 percent in the subject property, the signature of any other owner of the 8 property who, in combination with such primary resident, holds an owner- 9 ship interest of at least fifty percent in such property, consenting to 10 the application for an installment agreement. 11 2. A complete application must be submitted to, and approved by, the 12 department. 13 3. An applicant may select a monthly or quarterly payment schedule and 14 may also select the amount that is required to be paid under the appli- 15 cable installment agreement pursuant to the options available pursuant 16 to subdivision l, m or n of this section. 17 4. An applicant who is the property owner of a dwelling unit in a 18 condominium may submit an appraisal obtained by such applicant of the 19 fair market value of such dwelling unit provided that: 20 (a) the valuation date of such appraisal is a date within, and such 21 appraisal shall have been prepared no more than, twelve months prior to 22 submission of an application; 23 (b) the cost of such appraisal shall be borne by such applicant; and 24 (c) the cost of such appraisal may not be included in the amount 25 subject to the installment agreement. 26 h. Renewal. 1. An installment agreement under this section shall 27 terminate unless an applicant files a renewal application each year. At 28 least sixty days before one year from the date such installment agree- 29 ment was entered into or renewed, the department shall mail each appli- 30 cant a renewal application, provided, however, that upon any such 31 renewal application being made by the applicant, any installment agree- 32 ment then in effect with respect to such applicant shall be deemed 33 renewed until such time as the department shall have found such appli- 34 cant to be either eligible or ineligible for the renewal of the install- 35 ment agreement but in no event for more than six additional months. 36 2. To renew an installment agreement under this section, an applicant 37 must submit a renewal application to the department on or before one 38 year from the date such installment agreement was entered into and each 39 year thereafter for which renewal is sought. To be eligible to renew 40 such agreement, an applicant must demonstrate that: 41 (a) the property continues to be the primary residence of such appli- 42 cant and such residence has been uninterrupted since the date the 43 initial installment agreement was entered into; and 44 (b) the combined income of such applicant and of all the additional 45 property owners does not exceed fifty-eight thousand three hundred nine- 46 ty-nine dollars for the income tax year immediately preceding the date 47 of the renewal of such installment agreement, except that an applicant 48 for the renewal of a fixed length income-based installment agreement 49 pursuant to subdivision m of this section is not required to submit 50 income information. 51 i. Effects of installment agreement on tax lien and tax lien sale. 1. 52 The execution of an installment agreement pursuant to this section shall 53 not suspend the accrual of liens, interest and other charges against the 54 property, which continue to accrue in accordance with applicable law. 55 2. A property for which an application has been submitted that 56 contains proof of income and, for a senior low-income installment agree-S. 8474 294 1 ment described in subdivision l of this section, proof of age, and that 2 is signed, but is otherwise incomplete, shall be withdrawn from the next 3 tax lien sale. Such property, however, may be included in the tax lien 4 sale subsequent to the next tax lien sale if a completed application is 5 not submitted within forty-five days from the date of the additional 6 information request notice sent to the applicant by the department or if 7 the completed application is denied. 8 j. Amount subject to installment agreement. 1. Each approved install- 9 ment agreement shall set forth terms of repayment, including (a) the 10 frequency of payments, (b) the percentage of the taxes and charges that 11 forms the basis of the required payment for the senior low-income 12 installment agreement described in subdivision l of this section, or the 13 percentage of the combined income of the property owners for the income 14 tax year immediately preceding the initial application that forms the 15 basis of the required payment for the installment agreement for the 16 fixed length income-based and the extenuating circumstances income-based 17 installment agreements described in subdivisions m and n respectively, 18 (c) the payment schedule, and (d) the payment amount. 19 2. A lien sold in a tax lien sale before the date of an application 20 for an installment agreement is not eligible to be included in an 21 installment agreement under this section. 22 3. The applicant may choose to include the cost of the title search 23 required to be submitted with an application pursuant to subparagraph 24 (a) of paragraph one of subdivision g of this section in the amount 25 subject to the installment agreement. If an applicant chooses to include 26 such cost, the applicant may either select a title company to conduct 27 the required search and present documentation to the department of the 28 cost, or direct the department to use a title company selected by the 29 department. The department shall pay the cost of the title search and be 30 reimbursed by the applicant through the addition of the cost to the 31 amount subject to the installment agreement. The applicant shall make 32 such reimbursement in the first year of the installment agreement, in 33 monthly or quarterly payments, consistent with the payment frequency 34 selected for the installment agreement. The cost of the title search 35 shall bear interest at the same rate as the interest on unpaid real 36 property tax as provided in section 11-224.1 of this title. 37 4. (a) Any time the amount of the liens on a property subject to an 38 installment agreement under this section exceeds twenty-five percent of 39 the net equity in such property, the applicant shall pay all taxes and 40 charges imposed against the property that exceed twenty-five percent of 41 the net equity in the property as such taxes and charges become due, in 42 addition to the payment amount set forth in the installment agreement. 43 (b) Notwithstanding subparagraph (a) of this paragraph and provided 44 that section five hundred eighty-one of the real property tax law is in 45 effect in the same form as such section was in effect as of the effec- 46 tive date of this section, for property that is a dwelling unit in a 47 condominium subject to an installment agreement under this section and 48 for which an appraisal has not been obtained pursuant to paragraph four 49 of subdivision g of this section, any time the amount of the liens 50 subject to such agreement exceeds fifty percent of the net equity in 51 such property, the applicant shall pay all taxes and charges imposed 52 against such property that exceed fifty percent of the net equity in 53 such property as such taxes and charges become due, in addition to the 54 payment amount set forth in the installment agreement. For property that 55 is a dwelling unit in a condominium and for which an appraisal has been 56 obtained pursuant to paragraph four of subdivision g of this section,S. 8474 295 1 any time the amount of the liens subject to an installment agreement 2 under this section exceeds the higher of (i) fifty percent of the net 3 equity in such property based on the fair market value determined by the 4 department; or (ii) twenty-five percent of the net equity in such prop- 5 erty based on the fair market value determined by the appraisal obtained 6 by the applicant, the applicant shall pay all taxes and charges imposed 7 against such property that exceed the higher of the amounts described by 8 clauses (i) and (ii) of this subparagraph as such taxes and charges 9 become due, in addition to the payment amount set forth in the install- 10 ment agreement. 11 (c) The department shall provide each applicant with a written projec- 12 tion at the time the installment agreement is entered into as to when 13 the twenty-five or fifty percent threshold, as determined pursuant to 14 subparagraphs (a) and (b) of this paragraph, will be exceeded. The 15 department shall also notify each property owner in writing when the 16 amount of the liens exceeds such threshold. Failure by the department to 17 provide an applicant with such projection or to notify a property owner 18 when the amount of the liens exceeds the applicable threshold, however, 19 shall not affect the validity of the installment agreement that has been 20 entered into, nor shall any claim arise or exist against the commission- 21 er of finance or any officer or agency of the city by reason of such 22 failure to provide such projection or such notification. 23 5. If at any time the department determines that the fair market value 24 of a property subject to an installment agreement under this section has 25 increased, an applicant may request that the net equity in such property 26 be recalculated and the net equity amount included in such installment 27 agreement be adjusted to reflect the recalculated net equity in such 28 property. 29 6. If the combined income of all of the property owners exceeds 30 fifty-eight thousand three hundred ninety-nine dollars for the income 31 tax year immediately preceding the date of making a renewal application 32 pursuant to subdivision h of this section, the applicant shall pay all 33 taxes and charges imposed against the property after the date of such 34 renewal application as such taxes and charges become due, in addition to 35 the payment amount set forth in such installment agreement. 36 k. Termination of installment agreement. 1. An installment agreement 37 shall be terminated when any of the following occurs: 38 (a) The property whose liens are the subject of such installment 39 agreement is no longer the primary residence of the applicant. An appli- 40 cant whose installment agreement has been terminated because of such 41 reason may apply to enter into an installment agreement pursuant to 42 section 11-322 of this chapter. 43 (b) The fixed term of the installment agreement expires. An applicant 44 whose installment agreement has been terminated because of such expira- 45 tion may apply to enter into an installment agreement pursuant to 46 section 11-322 of this chapter or to this section. 47 (c) The applicant is deceased. 48 (d) The applicant opts out of an installment agreement without a fixed 49 term as described in paragraph one of subdivision l of this section. An 50 applicant who opts out of such agreement may apply to enter into an 51 installment agreement pursuant to section 11-322 of this chapter or to 52 this section. 53 (e) The applicant does not file a timely renewal application in 54 accordance with the provisions of subdivision h of this section.S. 8474 296 1 (f) The applicant is in default and has not cured such default as 2 provided in subparagraph (a) of paragraph three of this subdivision 3 prior to the next tax lien sale. 4 (g) The applicant has defaulted on the installment agreement and has 5 cured such default by entering into a new installment agreement pursuant 6 to clause two or three of subparagraph (a) of paragraph three of this 7 subdivision. 8 2. If an installment agreement is terminated, all taxes and charges 9 that accrued before such termination are required to be paid. If such 10 taxes and charges are not paid within nine months of such termination, 11 the tax lien or tax liens on such property may be sold. Notwithstanding 12 the preceding sentence, if an agreement is terminated pursuant to 13 subparagraph (c) of paragraph one of this subdivision, a surviving 14 spouse has eighteen months from the death of the applicant to pay all 15 taxes and charges on such property before the tax lien or tax liens on 16 such property may be sold. If such surviving spouse is a property owner 17 he or she may enter into a separate installment agreement pursuant to 18 section 11-322 of this chapter or subdivision l, m or n of this section, 19 as long as he or she meets the eligibility requirements for the respec- 20 tive installment agreement. 21 3. (a) An applicant may cure a default by: 22 (i) bringing all installment payments and all current charges, includ- 23 ing but not limited to any interest and fees, that are outstanding at 24 the time of the default to a current status prior to the date of the tax 25 lien sale; 26 (ii) entering into a new installment agreement with a down payment of 27 twenty percent or more, of all delinquent real property taxes, assess- 28 ments, sewer rents, sewer surcharges, water rents and other charges that 29 are made a lien subject to the provisions of this chapter, including any 30 outstanding interest and fees, prior to the date of such sale; or 31 (iii) entering into a new installment agreement under this section if 32 the department has made a finding of extenuating circumstances pursuant 33 to the process described in paragraph four of subdivision (e) of section 34 40-03 of title nineteen of the rules of the city of New York. 35 (b) If a default is not cured prior to the date of the tax lien sale, 36 such applicant shall not be eligible to enter into an installment agree- 37 ment for the subject property for five years, unless the department has 38 made a finding of extenuating circumstances pursuant to the process 39 described in paragraph four of subdivision (e) of section 40-03 of title 40 nineteen of the rules of the city of New York. 41 (c) Notwithstanding the prohibition in subparagraph (b) of this para- 42 graph against entering into an installment agreement for the subject 43 property for five years, an applicant who has defaulted on an install- 44 ment agreement and whose lien has been sold and, after the sale of the 45 lien, whose property on which the lien was sold is subject to another 46 tax lien that is eligible to be sold, may apply to enter into another 47 installment agreement with respect to such other lien before the end of 48 such five-year period, provided that such applicant makes a down payment 49 of twenty percent or more, of all delinquent real property taxes, 50 assessments, sewer rents, sewer surcharges, water rents and other charg- 51 es that are made a lien subject to the provisions of this chapter, 52 including any outstanding interest and fees, prior to the date of the 53 tax lien sale. An applicant shall not be eligible to enter an install- 54 ment agreement with a down payment under this subparagraph more than 55 once for the subject property.S. 8474 297 1 (d) If a property owner who has entered into an installment agreement 2 with the department pursuant to this section fails to make a payment 3 pursuant to such agreement, the department shall, after the first missed 4 payment, mail a letter or send an email, when such address is known, to 5 the property owner stating that such owner is at risk of being in 6 default of such agreement. The letter or email shall be sent after the 7 first missed payment if the department has not received payment within 8 two weeks of the due date. Failure by the department to mail such letter 9 or send such email, however, shall not affect the validity of the 10 installment agreement that has been entered into, nor shall any claim 11 arise or exist against the commissioner of finance or any officer or 12 agency of the city by reason of such failure to mail such letter or send 13 such email. 14 l. Senior low-income installment agreement. 1. At the option of the 15 applicant, a senior low-income installment agreement may provide for 16 payments for a fixed period of time or for payments without a fixed 17 period of time. If the applicant selects an installment agreement with a 18 fixed time period, the applicant may select the term of the agreement. 19 The applicant may switch from an installment agreement without a fixed 20 time period to an installment agreement with a fixed time period, or 21 from an installment agreement with a fixed time period to an installment 22 agreement without a fixed time period, at any point. 23 2. A senior low-income installment agreement shall provide for the 24 payment of both a percentage of taxes and charges that have accrued, if 25 any, and a percentage of taxes and charges that will accrue after the 26 date of the installment agreement. The applicant may elect to pay an 27 installment amount based on zero percent, twenty-five percent, fifty 28 percent or seventy-five percent of the annual taxes and charges that 29 have accrued, if any, and that will accrue. If the applicant selects an 30 agreement with a fixed time period, the required payment shall be based 31 on the percentage selected and the term selected. If the applicant 32 selects an agreement without a fixed time period, the required payment 33 shall be based on the percentage selected for prospective taxes and 34 charges and a partial or full payment of the percentage of taxes and 35 charges that have accrued, if any. The applicant may adjust the payment 36 percentage at any point during the installment agreement, but may not 37 make more than one such adjustment during any six-month period. 38 m. Fixed length income-based installment agreement. 1. At the option 39 of the applicant, a fixed length income-based installment agreement 40 pursuant to this subdivision may provide for the payment of (a) only 41 taxes and charges that have accrued or (b) taxes and charges that have 42 accrued and taxes and charges that will accrue over the next fiscal 43 year. If option (a) is selected, the applicant shall pay all taxes and 44 charges that become due on the property after the installment agreement 45 is entered into in addition to the payment schedule provided in the 46 installment agreement. If option (b) is selected, the applicant shall 47 pay all taxes and charges that will accrue on the property after the 48 installment agreement has been in effect for one year in addition to the 49 payment schedule provided in the installment agreement. 50 2. The annual payment amount required pursuant to an installment 51 agreement described by this subdivision shall be based on a percentage 52 of the combined income of all of the property owners for the income tax 53 year immediately preceding the initial application for such installment 54 agreement. The applicant may select a percentage of two percent, four 55 percent, six percent or eight percent of such combined income. The 56 installment payment shall be calculated by dividing the annual paymentS. 8474 298 1 amount by twelve or four, depending on whether a monthly or quarterly 2 payment schedule is selected. The term of the agreement shall be calcu- 3 lated by dividing the taxes and charges included in the agreement pursu- 4 ant to paragraph one of this subdivision by the installment payment 5 determined by the calculation described in this paragraph. 6 3. An applicant may adjust the payment percentage at any point during 7 the installment agreement, but may not make more than one such adjust- 8 ment during any six-month period. 9 n. Extenuating circumstances income-based installment agreement. 1. 10 An extenuating circumstances income-based installment agreement shall 11 provide for the payment, during the period of such agreement, of a 12 percentage of taxes and charges that have accrued on the property and 13 taxes and charges that accrue after the date of the installment agree- 14 ment. 15 2. The annual payment amount required pursuant to an installment 16 agreement described by this subdivision shall be based on a percentage 17 of the combined income of all of the property owners for the income tax 18 year immediately preceding the initial application for an installment 19 agreement. The applicant may select a percentage of two percent, four 20 percent, six percent, or eight percent of such combined income. Such 21 installment payment shall be calculated by dividing the annual payment 22 amount by twelve or four, depending on whether a monthly or quarterly 23 payment schedule is selected. The installment agreement shall be for a 24 term of one year but may be extended on a yearly basis if the department 25 determines that the extenuating circumstances continue. 26 3. An applicant may adjust the payment percentage at any point during 27 the installment agreement, but may not make more than one such adjust- 28 ment during any six-month period. 29 o. After an applicant has entered into an installment agreement with 30 the department pursuant to this section, the department shall record the 31 entry of such agreement on the automated city register information 32 access system. Failure by the department to record such agreement, 33 however, shall in no manner affect the validity of such agreement, nor 34 shall any claim arise or exist against the commissioner of finance or 35 any officer or agency of the city by reason of such failure to record. 36 p. All installment agreements executed pursuant to this section on or 37 after the effective date of this subdivision shall include: 38 1. a statement that if payments required from an applicant pursuant to 39 such an agreement are not made for a period of six months, such appli- 40 cant shall be in default of such agreement, and the tax lien or tax 41 liens on the subject property may be sold, provided, however, that such 42 default may be cured upon such applicant's bringing all installment 43 payments and all current charges that are outstanding at the time of the 44 default to a current status, which shall include, but not be limited to, 45 any outstanding interest and fees, prior to the date of the tax lien 46 sale; 47 2. a notification that if such default is not cured prior to the date 48 of the tax lien sale, such property owner shall not be eligible to enter 49 into an installment agreement for the subject property for five years, 50 unless a finding of extenuating circumstances has been made by the 51 department pursuant to the process described in paragraph four of subdi- 52 vision (e) of section 40-03 of title nineteen of the rules of the city 53 of New York; 54 3. the definition of extenuating circumstances pursuant to such para- 55 graph;S. 8474 299 1 4. a statement describing the conditions under which the property 2 owner may be eligible, after default, to enter into another installment 3 agreement in accordance with paragraph three of subdivision k of this 4 section; and 5 5. the date by which the applicant must submit a renewal application 6 each year. 7 q. Every January thirty-first, the department shall submit to the 8 speaker of the council a report on the usage of the installment agree- 9 ments set forth in this section in the prior calendar year, including, 10 but not limited to the following data, disaggregated by installment 11 agreement type: 12 1. the number of new installment agreements executed; 13 2. the number of installment agreements in effect on December thirty- 14 first of each year; 15 3. the number of applications for installment agreements received, the 16 number of applications not approved, and the reasons for disapproval; 17 4. for the senior low-income installment agreements, the number of new 18 installment agreements executed at zero percent, twenty-five percent, 19 fifty percent and seventy-five percent; 20 5. for the fixed length and extenuating circumstances income-based 21 installment agreements, the number of new installment agreements 22 executed at two percent, four percent, six percent or eight percent; 23 6. the average amount of property taxes and charges addressed by the 24 installment agreement; 25 7. the number of installment agreements that entered into default, the 26 number of defaults that were cured and the method by which they were 27 cured; 28 8. the number of installment agreements that were terminated, by 29 reason of termination; 30 9. the number of installment agreements that were renewed, including 31 whether such renewal occurred before or during the six-month period 32 described in paragraph one of subdivision h of this section; and 33 10. the number of installment agreements where the amount of liens on 34 the subject property exceeded the applicable percent of the net equity 35 in such property. 36 r. The department shall publicize the availability of the installment 37 agreements set forth in this section so as to maximize public awareness 38 of such agreements. 39 § 11-323 Commissioner of finance to conduct sale. The commissioner of 40 finance or his or her designee shall conduct the sales hereinbefore 41 provided to be made, or the commissioner may, in his or her discretion, 42 contract with any other person to conduct competitive sales of tax 43 liens. 44 § 11-324 Deposits and forfeits. The commissioner of finance may 45 require from each purchaser of a tax lien or tax liens, in cash or cash 46 equivalent in immediately available funds in the discretion of such 47 commissioner, a deposit of at least five per cent of the cash portion of 48 the sale price of the tax lien or tax liens purchased by him or her, as 49 liquidated damages, on a date determined by the commissioner of finance. 50 The balance shall be paid to the commissioner of finance in cash or cash 51 equivalent in immediately available funds or such other consideration 52 acceptable to the commissioner of finance or any combination thereof, in 53 his or her discretion. For purposes of this chapter "cash equivalent" 54 shall mean a cashier's check, bank check, certified check, money order, 55 or such other paper instrument as the commissioner of finance shall 56 prescribe. Such deposit and balance may also be paid by electronic fundsS. 8474 300 1 transfer. For purposes of this chapter, "electronic funds transfer" 2 shall mean any transfer of funds, other than a transaction originated by 3 check, draft or similar paper instrument, which is initiated using a 4 format prescribed by the commissioner of finance. A tax lien certificate 5 shall be made and delivered to the purchaser upon payment of the sale 6 price. In case any purchaser shall default in any obligation under the 7 terms and conditions of the tax lien sale, then the amount deposited by 8 the purchaser shall be forfeited to the city, and the tax lien or tax 9 liens upon the property affected by such purchase may be sold again at 10 the discretion of the commissioner of finance pursuant to section 11-319 11 of this chapter. All deposits forfeited as aforesaid shall be paid into 12 the general fund. 13 § 11-327 Tax lien certificates; operation. A tax lien certificate 14 shall operate to transfer and assign the tax lien upon the property 15 described therein for the taxes, assessments, sewer rents, sewer 16 surcharges, water rents, any other charges that are made a lien subject 17 to the provisions of this chapter, the costs of any notices and adver- 18 tisements given pursuant to this chapter, any other charges that are due 19 and payable, a surcharge pursuant to section 11-332 of this chapter, and 20 interest and penalties thereon. 21 § 11-328 Contents of a tax lien certificate. A tax lien certificate 22 shall contain a transfer and assignment by the city of the tax lien sold 23 to the purchaser, the date of the sale, the aggregate amount of the tax 24 lien so transferred, and the items of taxes, assessments, sewer rents, 25 sewer surcharges, water rents, any other charges that are made a lien 26 subject to the provisions of this chapter, the costs of any advertise- 27 ments and notices given pursuant to this chapter, any other charges that 28 are due and payable, a surcharge pursuant to section 11-332 of this 29 chapter, and interest and penalties thereon comprising the tax lien, the 30 rate of interest which the tax lien certificate will bear, the date when 31 the amounts under such tax lien are due pursuant to section 11-332 of 32 this chapter, and a description of the property affected by the tax 33 lien, which description shall include the designation of such property 34 on the tax map, by its lot number and the number of the block in which 35 it is contained, and such other identifying information as the commis- 36 sioner of finance or his or her designee may deem proper to add. For 37 purposes of this section, the words "date of sale" shall have the same 38 meaning provided in subdivision (e) section 11-320 of this chapter. Each 39 tax lien certificate shall be executed by the commissioner of finance or 40 his or her designee by manual or facsimile signature and shall be 41 acknowledged by the manual or facsimile signature of the officer 42 subscribing the same in the manner in which a deed is required to be 43 acknowledged to be recorded in the county in which the property affected 44 is situated. The commissioner of finance may designate an agent for 45 purposes of authenticating any such signature. 46 § 11-330 Record of tax lien certificates. The commissioner of finance 47 or his or her designee, shall keep in his or her office a public record 48 of sales of tax liens, and a copy of each tax lien certificate issued by 49 such commissioner or his or her designee. Assignments of tax lien 50 certificates duly acknowledged may be filed and recorded in the office 51 of the commissioner of finance or his or her designee. A tax lien 52 certificate and any assignment thereof, duly acknowledged, shall be 53 deemed conveyances under article eight of the real property law, and may 54 be recorded in the office of the recording officer of any county in 55 which the real property which it affects is situated. Tax lien certif- 56 icates and all assignments thereof shall be recorded by recording offi-S. 8474 301 1 cers in the same manner as mortgages and assignments thereof, but with- 2 out payment of tax under article eleven of the tax law. Neither the tax 3 lien nor the rights transferred or created by a tax lien certificate 4 shall be impaired by failure of a recording officer to record a tax lien 5 certificate made by the city through the commissioner of finance or his 6 or her designee. 7 § 11-331 Records to be competent evidence. The record in the office of 8 the commissioner of finance or his or her designee of sales of tax 9 liens, of a tax lien certificate, and of a copy of a tax lien certif- 10 icate, and of an assignment of a tax lien certificate, a record of a tax 11 lien certificate in the office of a recording officer, and of an assign- 12 ment of a tax lien certificate, duly acknowledged, in the office of a 13 recording officer, shall each be evidence in any court in the state 14 without further proof. A transcript of any record enumerated in this 15 section, duly certified, shall be evidence in any court in the state 16 with like effect as the original instrument of record. 17 § 11-332 Rights of purchaser of tax lien. a. Any purchaser of a tax 18 lien or tax liens shall stand in the same position as the city and shall 19 have all the rights and remedies that the city would have had if the tax 20 lien or tax liens had not been sold. 21 b. The aggregate amount of each tax lien transferred pursuant to this 22 chapter shall be due and payable one year from the date of the sale. 23 Until such aggregate amount is fully paid and discharged, the holder of 24 the tax lien certificate shall be entitled to receive interest on such 25 aggregate amount from the date of sale, and semi-annually at the rate of 26 interest applicable in accordance with section 11-319 of this chapter. 27 If such aggregate amount is partially paid, the holder of the tax lien 28 certificate shall be entitled to receive interest only on the amount 29 that remains unpaid. Notwithstanding the foregoing sentence, the holder 30 of the tax lien certificate shall be entitled to receive and retain a 31 surcharge equal to five percent of the lien arising pursuant to the 32 provisions of this chapter as a result of the nonpayment of taxes, 33 assessments, sewer rents, sewer surcharges, water rents, any other 34 charges that are made a lien subject to the provisions of this chapter, 35 the costs of any advertisements and notices given pursuant to this chap- 36 ter, any other charges that are due and payable, and interest and penal- 37 ties thereon. Any amounts due shall be paid directly to the holder of 38 the tax lien certificate. At the option of the holder of any tax lien 39 certificate the aggregate amount thereof shall become subject to fore- 40 closure after default in the payment of interest for thirty days or 41 after default for six months after the date of sale stated in the tax 42 lien certificate in accordance with subdivision (d) of section 11-320 43 and section 11-328 of this chapter in the payment of any taxes, assess- 44 ments, sewer rents, sewer surcharges, water rents, any other charges 45 that are made a lien subject to the provisions of this chapter, or the 46 interest or penalties thereon which become a lien on or after the date 47 of sale of the tax lien transferred by such tax lien certificate. At his 48 or her option, the holder of the tax lien certificate may satisfy any 49 such subsequent tax lien on the same property, and shall, by virtue of 50 such satisfaction, be deemed to be in the same position as if he or she 51 were a purchaser of a tax lien certificate for such subsequent tax lien, 52 provided, however, that such holder shall not be entitled to receive a 53 five percent surcharge on such subsequent tax lien pursuant to this 54 section. The rate of interest on such subsequent lien shall be the rate 55 of interest applicable to tax lien certificates pursuant to section 56 11-319 of this chapter. The commissioner of finance or his or her desig-S. 8474 302 1 nee, at the request of the purchaser of such subsequent lien, shall 2 issue a tax lien certificate for such lien pursuant to sections 11-327 3 and 11-328 of this chapter. Upon issuance of such certificate, the 4 commissioner of finance or his or her designee shall provide such notice 5 as is required pursuant to section 11-320(d) of this chapter. Failure to 6 provide notice pursuant to this subdivision shall not affect the validi- 7 ty of any transfer of a subsequent tax lien or tax liens pursuant to 8 this subdivision. Any person having a legal or beneficial interest in 9 property affected by a tax lien certificate may satisfy the same at any 10 time upon payment of the amounts due with interest at the rate applica- 11 ble in accordance with section 11-319 of this chapter. Upon satisfaction 12 of the tax lien, the holder thereof shall issue to the person who satis- 13 fied such tax lien a certificate of discharge, certifying that the tax 14 lien has been paid or has been otherwise satisfied, in such recordable 15 form as has been approved by the commissioner of finance. For purposes 16 of this section, the words "date of sale" shall have the same meaning 17 provided in subdivision (e) of section 11-320 of this chapter. 18 § 11-333 Discharge of tax lien. A tax lien sold pursuant to the 19 provisions of this chapter may be discharged by presenting the certif- 20 icate of discharge issued by the holder of the tax lien pursuant to 21 section 11-332 of this chapter to the recording officer of the county in 22 which the real property that it affects is situated, and any recording 23 officer to whom such certificate of discharge is presented shall record 24 the same. 25 § 11-334 Exemption from taxation. Tax liens and tax lien certificates 26 shall be exempt from taxation by the state or any local subdivisions 27 thereof, except from the taxes imposed by article ten of the tax law. 28 The real property affected by any tax lien shall not be exempt from 29 taxation by reason of this section. 30 § 11-335 Foreclosure of tax liens. If the amount of any tax lien which 31 shall have been transferred by a tax lien certificate shall not be paid 32 when under its terms and the provisions of section 11-332 of this chap- 33 ter such amount shall be due, the holder of such tax lien certificate 34 may maintain an action in the supreme court to foreclose such tax lien. 35 The holder of such tax lien certificate shall notify the commissioner of 36 finance or his or her designee in writing whenever he or she commences 37 such action at the time of filing of such action, and shall notify the 38 commissioner of finance in writing of the resolution of such action, 39 including any settlement of such action, within thirty days of such 40 resolution. In an action to foreclose a tax lien any person shall be a 41 proper party of whom the plaintiff alleges that such person has or may 42 have or that the plaintiff has reason to believe that such person has or 43 may have an interest in or claim upon the property affected by the tax 44 lien. A plaintiff in an action to foreclose a tax lien shall recover 45 reasonable attorney's fees for maintaining such action. Except as other- 46 wise provided in this chapter an action to foreclose a tax lien shall be 47 regulated by the provisions of the civil practice law and rules and by 48 all other provisions of law, and rules of practice applicable to actions 49 to foreclose mortgages on real property. The people of the state of New 50 York or the city of Staten Island may be made party to an action to 51 foreclose a tax lien in the same manner as a natural person. Where the 52 people of the state of New York or the city of Staten Island are made a 53 party defendant the complaint shall set forth, in addition to the other 54 matters required to be set forth by law, detailed facts showing the 55 particular nature of the interest in or the lien on such property of the 56 people of the state of New York or the city of Staten Island, andS. 8474 303 1 detailed facts showing the particular nature of the interest in or the 2 lien on such property which plaintiff has reason to believe that the 3 people of the state of New York or the city of Staten Island have or may 4 have in such property, and the reason for making the people of the state 5 of New York or the city of Staten Island a party defendant. Upon failure 6 to state such facts the complaint shall be dismissed as to the people of 7 the state or the city of Staten Island. 8 § 11-336 Pleading tax lien certificate. Whenever a cause of action, 9 defense or counterclaim, is for the foreclosure of a tax lien, or is in 10 any manner founded upon a tax lien or a tax lien certificate, the 11 production in evidence of an instrument executed by the commissioner of 12 finance or his or her designee in the form prescribed in section 11-328 13 of this chapter for a tax lien certificate subscribed by or in behalf of 14 the commissioner of finance or his or her designee shall be presumptive 15 evidence that the lien purported to be transferred by such an instrument 16 was a valid and enforceable lien, and that it has been duly assigned to 17 the purchaser, and it shall not be necessary to plead or prove any act, 18 proceeding, notice or action, preceding the delivery of such tax lien 19 certificate nor to establish the validity of the tax lien transferred by 20 such tax lien certificate. If a party or person in interest in any such 21 action or proceeding claims that a tax lien is irregular or invalid, or 22 that there is any defect therein or that a tax lien certificate is 23 irregular, invalid or defective, such invalidity, irregularity or defect 24 must be specifically pleaded or set forth, and must be established 25 affirmatively by the party or person pleading or setting forth the same. 26 § 11-337 Judgment upon tax lien. In every action for the foreclosure 27 of a tax lien, and in every action or proceeding in which a cause of 28 action, defense or counterclaim is in any manner founded upon a tax lien 29 or a tax lien certificate, such tax lien certificate and the tax lien 30 which it transfers shall be presumed to be regular and valid and effec- 31 tual to transfer to the purchaser named therein a valid and enforceable 32 tax lien. Unless in such an action or proceeding such tax lien or tax 33 lien certificate be found to be invalid, they shall be adjudged to be 34 enforceable and valid, for the amount thereof and the interest to which 35 the holder may be entitled and a tax lien transferred by a tax lien 36 certificate effectual to transfer such tax lien to the purchaser named 37 therein. 38 § 11-338 Judgment of foreclosure of tax lien; sale. In an action to 39 foreclose a tax lien, unless the defendants obtain judgment, the plain- 40 tiff shall be entitled to a judgment establishing the validity of the 41 tax lien so far as the same shall not be adjudged invalid and of the tax 42 lien certificate and directing the sale of the real, personal or mixed 43 property affected thereby, or such part thereof as shall be sufficient 44 to discharge the tax lien, or such items thereof as shall not be 45 adjudged invalid together with the expense of the sale, and the costs of 46 the action. 47 § 11-339 City may purchase at sale. At a sale pursuant to judgment in 48 an action to foreclose a tax lien or at any sale free of tax liens, the 49 city, without authorization other than hereby given, may purchase any 50 property that is the subject of the sale. 51 § 11-340 Effect of judgment foreclosing tax lien. Every final judg- 52 ment in an action to foreclose a tax lien shall be binding upon, and 53 every conveyance upon a sale pursuant thereto, shall transfer to and 54 vest in the purchaser all the right, title, interest and estate in and 55 claim upon the real property affected by such judgment, of the plain- 56 tiff, each defendant upon whom the summons is served, each person claim-S. 8474 304 1 ing from, through or under such a defendant by title accruing after the 2 filing of notice of pendency of the action or after the entry of judg- 3 ment and filing of the judgment roll in the proper county clerk's 4 office, and each person not in being when the judgment is rendered, who 5 afterwards may become entitled to a beneficial interest attaching to, or 6 an estate or interest in such real property or any portion thereof, 7 provided that the person presumptively entitled to such beneficial 8 interest, estate or interest is a party to such action or bound by such 9 judgment. So much of section three hundred seventeen of the civil prac- 10 tice law and rules as requires the court to allow a defendant to defend 11 an action after final judgment shall not apply to an action to foreclose 12 a tax lien. Delivery of the possession of real property affected by a 13 judgment to foreclose a tax lien may be compelled in the manner 14 prescribed in section two hundred twenty-one of the real property 15 actions and proceedings law. 16 § 11-341 Surplus. Any surplus of the proceeds of the sale, after 17 paying the expenses of the sale, and all taxes, assessments, sewer 18 rents, sewer surcharges, water rents, any other charges made a lien 19 subject to the provisions of this chapter, the costs of any advertise- 20 ments and notices given pursuant to this chapter, any other charges that 21 are due and payable, any surcharge pursuant to section 11-332 of this 22 chapter and interest and penalties thereon, including such amounts which 23 accrued or became a lien on and after the date of sale of the tax lien 24 or tax liens and up to and including the date of the sale of the proper- 25 ty in foreclosure, and satisfying the amount of such tax lien or tax 26 liens and interest and the costs of the action, must be paid into court, 27 for the use of the person or persons entitled thereto. If any part of 28 the surplus remains in court for the period of three months, and no 29 application has been made therefor, the court must, and, if an applica- 30 tion therefor is pending, the court may direct such surplus to be 31 invested at interest, for the benefit of the person or persons entitled 32 thereto, to be paid upon the direction of the court. 33 § 11-342 Foreclosed tax lien not arrears. Any party to an action to 34 foreclose a tax lien or any purchaser or any party in interest may give 35 notice of such foreclosure to the city collector and after such notice 36 the items which constituted the tax lien thus foreclosed shall not be 37 entered by the city collector in any yearly assessment-roll, so long as 38 the judgment of foreclosure of such lien remains in force. 39 § 11-347 Corporation counsel to protect city in all proceedings relat- 40 ing to tax liens. It shall be the duty of the corporation counsel to 41 protect the interest of the city in all matters, actions and proceedings 42 relating to tax liens and tax lien certificates; to intervene on behalf 43 of the city or to make the city a party to any action in which the 44 corporation counsel believes it to be to the interest of the city so to 45 do, by reason of any matter arising under or relating to any tax lien or 46 tax lien certificate, or advertisement of sale of tax liens. The corpo- 47 ration counsel in his or her discretion may represent the purchaser of a 48 tax lien or the holder of a tax lien certificate in any action in which 49 the corporation counsel believes it to be in the interest of the city so 50 to do, by reason of any matter arising under or relating to any tax lien 51 or tax lien certificate, or advertisement of sale of tax liens. All 52 costs recovered in any action or proceeding conducted or defended by the 53 corporation counsel pursuant to this section shall belong to the city 54 and shall be collected, applied and disposed of in the same manner as 55 are other costs recovered by the city.S. 8474 305 1 § 11-349 Lost tax lien certificate; delivery of duplicate in case of. 2 Whenever any tax lien certificate given by the commissioner of finance 3 or his or her designee, as in this chapter provided, shall be lost, the 4 commissioner of finance or his or her designee may receive evidence of 5 such loss, and on satisfactory proof of the fact may direct the 6 execution and delivery of a duplicate to such person or persons who 7 shall appear entitled thereto, and may also, in the commissioner's 8 discretion, require a bond of indemnity to the city. 9 § 11-350 Affidavits of publication and mailing of necessary notices to 10 be preserved. It shall be the duty of the commissioner of finance or his 11 or her designee to procure, preserve and register at the department of 12 finance, affidavits of the publication and mailing of all the advertise- 13 ments and notices by this chapter required to be published and mailed, 14 and such affidavits shall be presumptive proof of such publication and 15 mailing in all the courts of this state. 16 § 11-353 Cancellation of taxes, assessments, water rents, sewer rents, 17 sewer surcharges, any charges that are made a lien subject to the 18 provisions of this chapter, the costs of any advertisements and notices 19 given pursuant to this chapter, any other charges that are due and paya- 20 ble, a surcharge pursuant to section 11-332 of this chapter, and inter- 21 est and penalties thereon. Whenever the city has heretofore or shall 22 hereafter become vested with title to property acquired by virtue of tax 23 enforcement foreclosure proceedings, or by deed in lieu thereof, the 24 commissioner of finance, or his or her designee, shall cancel all unpaid 25 real estate taxes, tax lien certificates, assessments, water rents, 26 sewer rents, sewer surcharges, any charges that are made a lien subject 27 to the provisions of this chapter, the costs of any advertisements and 28 notices given pursuant to this chapter, any other charges that are due 29 and payable, a surcharge pursuant to section 11-332 of this chapter, and 30 interest and penalties thereon upon which the foreclosure action was 31 predicated. Upon the sale of such property and the conveyance of the 32 title thereof by the city, the commissioner of finance, or his or her 33 designee, shall cancel all unpaid real estate taxes, assessments, water 34 rents, sewer rents, sewer surcharges, any charges that are made a lien 35 subject to the provisions of this chapter, the costs of any advertise- 36 ments and notices given pursuant to this chapter, any other charges that 37 are due and payable, a surcharge pursuant to section 11-332 of this 38 chapter, and interest and penalties thereon that shall have accrued 39 during the period between the date of the last unpaid item upon which 40 the foreclosure action was predicated and the date of conveyance of 41 title. The commissioner of finance, or his or her designee, shall enter 42 notations of such cancellations in the appropriate records for each such 43 parcel of property. 44 § 11-354 Additional method to enforce payment of tax liens held by the 45 city. (a) Notwithstanding any other provision of law and notwithstanding 46 any omission to hold a tax lien sale, whenever any tax, assessment, 47 sewer rent, sewer surcharge, water rent, any charge that is made a lien 48 subject to the provisions of this chapter or chapter four of this title, 49 or interest and penalties thereon, has been due and unpaid for a period 50 of at least one year from the date on which the tax, assessment or other 51 legal charge represented thereby became a lien, or in the case of any 52 class one property or any class two property that is a residential 53 condominium or residential cooperative, as such classes of property are 54 defined in subdivision one of section eighteen hundred two of the real 55 property tax law, or in the case of a multiple dwelling owned by a 56 company organized pursuant to article eleven of the private housingS. 8474 306 1 finance law with the consent and approval of the department of housing 2 preservation and development, for a period of at least three years from 3 the date on which the tax, assessment or other legal charge became a 4 lien, the city, as owner of a tax lien, may maintain an action in the 5 supreme court to foreclose such lien. Such action shall be governed by 6 the procedures set forth in section 11-335 of this chapter; provided, 7 however, that such parcel shall only be sold to the highest responsible 8 bidder. Such purchaser shall be deemed qualified as a responsible bidder 9 pursuant to such criteria as are established in rules promulgated by the 10 commissioner of finance after consultation with the commissioner of 11 housing preservation and development. 12 (b) At a sale pursuant to a judgment in an action brought pursuant to 13 subdivision (a) of this section to foreclose a tax lien, the city may 14 purchase property subject to such lien in accordance with the provisions 15 of section 11-339 of this chapter. 16 (c) The provisions of this section shall not affect any existing reme- 17 dy or procedure for the enforcement or foreclosure of tax liens provided 18 for in this code or any other law, but the remedy provided herein for 19 foreclosure of tax liens shall be in addition to any other remedies or 20 procedures provided by any general, special or local law. Notwithstand- 21 ing any other provision of this code, the commissioner of finance shall 22 be authorized to agree to forebear to commence an in rem action against 23 property which has an outstanding and unredeemed tax lien certificate 24 previously sold by the city and held by a third party pursuant to this 25 chapter. 26 § 11-355 Reporting. The commissioner of finance shall submit an annual 27 report to the council concerning the sale or sales of tax liens during 28 the preceding year pursuant to this chapter. Such report shall include 29 the following information regarding such sale or sales: a list of prop- 30 erties for which a tax lien or tax liens has or have been sold, includ- 31 ing identification of the particular tax lien or tax liens sold; the 32 proceeds received from the sale or sales of tax liens; identification of 33 the purchaser of and servicer for the tax lien or tax liens sold; a 34 report of servicer activities during the immediately preceding year; the 35 redemption rate for tax liens that have been sold; the delinquency rate 36 for real property taxes for the immediately preceding year; and any 37 other information pertinent to the sale of tax liens that may be 38 requested by the council and which is not made confidential pursuant to 39 section 11-208.1 of this code. Upon request by the council, information 40 provided in such report shall be arranged by community board. In addi- 41 tion to such report, the commissioner of finance shall from time to time 42 provide any other information pertinent to the sale of tax liens that 43 may be requested by the council and which is not made confidential 44 pursuant to section 11-208.1 of the code, including updated information 45 regarding the sale or sales of tax liens pursuant to this chapter. In 46 addition to such report, no later than August thirty-first, two thousand 47 twenty, the commissioner shall provide to the council a report listing 48 all properties on which liens have been sold during the period from 49 January first, two thousand fifteen through December thirty-first, two 50 thousand nineteen. The report shall indicate, based on records in the 51 office of the register, whether a transfer of or mortgage recorded on 52 any of such properties has occurred during such period after the sale of 53 any tax lien sold during such period. 54 CHAPTER 4 55 TAX LIEN FORECLOSURE BY ACTION IN REMS. 8474 307 1 § 11-401 Definitions. Whenever used in this chapter, the following 2 terms shall mean: 3 1. "Tax lien." The lien arising as a result of the nonpayment of 4 taxes, assessments, sewer rents, sewer surcharges, water rents, any 5 other charges that are made a lien subject to the provisions of this 6 chapter or chapter three of this title, interest and penalties thereon, 7 and the right of the city to receive such amounts. 8 2. "Court." The supreme court. 9 3. "Class." Any class of real property defined in subdivision one of 10 section eighteen hundred two of the real property tax law, and any 11 subclassification of class two real property where such subclassifica- 12 tion is established by rule of the commissioner of finance promulgated 13 pursuant to this subdivision. 14 4. "Distressed property." Any parcel of class one or class two real 15 property that is subject to a tax lien or liens that result from an 16 environmental control board judgment against the owner of such parcel 17 for a building code violation with a lien or liens to value ratio, as 18 determined by the commissioner of finance, equal to or greater than 19 twenty-five percent or any parcel of class one or class two real proper- 20 ty that is subject to a tax lien or liens with a lien or liens to value 21 ratio, as determined by the commissioner of finance, equal to or greater 22 than fifteen percent and that meets one of the following two criteria: 23 i. such parcel has an average of five or more hazardous or immediately 24 hazardous violations of record of the housing maintenance code per 25 dwelling unit; or 26 ii. such parcel is subject to a lien or liens for any expenses 27 incurred by the department of housing preservation and development for 28 the repair or the elimination of any dangerous or unlawful conditions 29 therein, pursuant to section 27-2144 of this code, in an amount equal to 30 or greater than one thousand dollars. 31 § 11-401.1 Procedures for distressed property. a. The commissioner of 32 finance shall, not less than sixty days preceding the date of the sale 33 of a tax lien or tax liens, submit to the commissioner of housing pres- 34 ervation and development a description by block and lot, or by such 35 other identification as the commissioner of finance may deem appropri- 36 ate, of any parcel of class one or class two real property on which 37 there is a tax lien that may be foreclosed by the city. The commissioner 38 of housing preservation and development shall determine, and direct the 39 commissioner of finance, not less than ten days preceding the date of 40 the sale of a tax lien or tax liens, whether any such parcel is a 41 distressed property as defined in subdivision four of section 11-401 of 42 this chapter. Any tax lien on a parcel so determined to be a distressed 43 property shall not be included in such sale. In connection with a subse- 44 quent sale of a tax lien or tax liens, the commissioner of finance may, 45 not less than sixty days preceding the date of the sale, resubmit to the 46 commissioner of housing preservation and development a description by 47 block and lot, or by such other identification as the commissioner of 48 finance may deem appropriate, of any parcel of class one or class two 49 real property that was previously determined to be a distressed property 50 pursuant to this paragraph and on which there is a tax lien that may be 51 included in such sale. The commissioner of housing preservation and 52 development shall determine, and direct the commissioner of finance, not 53 less than ten days preceding the date of the sale, whether such parcel 54 remains a distressed property. If the commissioner of housing preserva- 55 tion and development determines that the parcel is not a distressed 56 property, then the tax lien on the parcel may be included in the sale.S. 8474 308 1 b. The commissioner of housing preservation and development may peri- 2 odically review whether a parcel of class one or class two real property 3 that is subject to subdivision c of this section or subdivision j of 4 section 11-412.1 of this chapter remains a distressed property. If the 5 commissioner determines that the parcel is not a distressed property as 6 defined in subdivision four of section 11-401 of this chapter, then the 7 parcel shall not be subject to such subdivisions. 8 c. Any parcel so determined to be a distressed property shall be 9 subject to an in rem foreclosure action, or in the case where the 10 commissioner of finance does not commence such action the commissioner 11 of housing preservation and development shall evaluate such parcel and 12 take such action as he or she deems appropriate under the programs, 13 existing at the time of such evaluation, that are designed to encourage 14 the rehabilitation and preservation of existing housing, and shall moni- 15 tor or cause to be monitored the status of the property. The commission- 16 er of housing preservation and development, in his or her discretion, 17 shall cause an inspection to be conducted on any parcel so determined to 18 be a distressed property. In addition, the commissioner of housing pres- 19 ervation and development shall submit to the council a list of all 20 parcels so determined to be a distressed property within thirty days 21 from the date such parcels are identified as a distressed property. 22 § 11-402 Applicability of procedure of foreclosure in rem. a. The 23 provisions of this chapter shall be applicable only to tax liens owned 24 by the city. 25 b. The provisions of this chapter shall not affect any existing remedy 26 or procedure for the enforcement or foreclosure of tax liens provided 27 for in this code or any other law, but the remedy provided herein for 28 foreclosure by action in rem shall be in addition to any other remedies 29 or procedures provided by any general, special or local law. 30 c. The provisions of this chapter shall not affect pending actions or 31 proceedings, provided, however, that any pending action or proceeding 32 for the enforcement or foreclosure of tax liens may be discontinued, and 33 a new action may be instituted pursuant to the provisions of this chap- 34 ter, in respect to any such tax lien. 35 § 11-402.1 Inapplicability of article eleven of the real property tax 36 law to the enforcement of the collection of delinquent taxes. In accord- 37 ance with section six of chapter six hundred two of the laws of nineteen 38 hundred ninety-three and subdivision two of section eleven hundred four 39 of the real property tax law, it is hereby provided that the collection 40 of delinquent taxes shall continue to be enforced pursuant to chapters 41 three and four of title eleven of this code and other related provisions 42 of the charter and this code as such chapters three and four and such 43 related provisions may from time to time be amended and that article 44 eleven of the real property tax law shall not be applicable to the city. 45 § 11-403 Jurisdiction. The supreme court shall have jurisdiction of 46 actions authorized by this chapter. 47 § 11-404 Foreclosure by action in rem. a. Whenever it shall appear 48 that a tax lien or tax liens has or have been due and unpaid for a peri- 49 od of at least one year from the date on which the tax, assessment or 50 other legal charge represented thereby became a lien, such tax lien or 51 tax liens, except as provided in subdivision b of this section or other- 52 wise provided by this chapter, may be summarily foreclosed in the manner 53 provided in this chapter, notwithstanding the provisions of any general, 54 special or local law and notwithstanding any omission to hold a sale of 55 a tax lien or tax liens prior to such foreclosure. A bill of arrears or 56 any other instrument evidencing such tax lien or tax liens shall beS. 8474 309 1 evidence of the fact that the tax lien or tax liens represented thereby 2 has not or have not been paid to the city or sold by it. 3 b. A tax lien on any class one property or any class two property that 4 is a residential condominium or residential cooperative, as such classes 5 of property are defined in subdivision one of section eighteen hundred 6 two of the real property tax law, and on any multiple dwelling owned by 7 a company organized pursuant to article eleven of the private housing 8 finance law with the consent and approval of the department of housing 9 preservation and development, shall not be foreclosed in the manner 10 provided in this chapter until such tax lien has been due and unpaid for 11 a period of at least three years from the date on which the tax, assess- 12 ment or other legal charge represented thereby became a lien. 13 § 11-405 Preparation and filing of lists of delinquent taxes. a. The 14 commissioner of finance from time to time shall prepare a list, to be 15 known as a "list of delinquent taxes", of all parcels, or all parcels 16 within a particular class or classes, that are within a particular 17 section of a tax map or portion of a section of a tax map of the city 18 and on which there are tax liens subject to foreclosure pursuant to this 19 chapter, provided, however, that no such portion shall be smaller than a 20 block, as defined in subdivision d of section 11-204 of subchapter one 21 of chapter two of this title. Every such list shall bear a caption 22 containing the in rem action number of the city's tax foreclosure 23 proceeding, the section of a tax map or portion of a section of a tax 24 map, and where the action covers less than all parcels in a section of a 25 tax map or portion of a section of a tax map, the particular class or 26 classes, and shall contain a statement of the rate or rates at which 27 interest and penalties will be computed for the various liens it 28 includes. 29 b. Every such list shall set forth the parcels it includes separately 30 and number them serially. For each parcel it shall contain (1) a brief 31 description sufficient to identify the parcel, including section, block 32 and lot numbers, and the street and street number, if any, or in the 33 absence of such information the parcel or tract identification number 34 shown on a tax map or on a map filed in the county clerk's or register's 35 office and (2) a statement of the amounts and dates of all unpaid tax 36 liens which are subject to foreclosure under this chapter and of those 37 which have accrued thereafter. 38 c. (1) The commissioner of finance may exclude or thereafter remove 39 from such list any parcels (i) as to which questions the commissioner 40 deems meritorious have been raised regarding the validity of the liens, 41 (ii) as to which all the taxes and other charges which rendered said 42 parcels eligible for inclusion in said list have been paid, or (iii) 43 which are owned by an entity other than a company organized pursuant to 44 article eleven of the private housing finance law with the consent and 45 approval of the department of housing preservation and development and 46 which are not owner-occupied residential buildings of not more than five 47 residential units and as to which an agreement has been duly made, 48 executed and filed with such commissioner for the payment of the delin- 49 quent taxes, assessments or other legal charges, interest and penalties 50 in installments. The first installment shall be paid upon the filing of 51 the installment agreement with the commissioner and shall be in an 52 amount of not less than fifteen percent of such delinquent taxes, 53 assessments or other legal charges, interest and penalties. The remain- 54 ing installments, which shall be twice the number of unpaid quarters of 55 real estate taxes or the equivalent thereof but which shall in no event 56 exceed thirty-two in number, shall be payable quarterly on the first dayS. 8474 310 1 of July, October, January and April. For the purposes of calculating the 2 number of such remaining installments unpaid real estate taxes which 3 are, on and after July first, nineteen hundred eighty-two, due and paya- 4 ble on an other than quarterly basis shall be deemed to be payable on a 5 quarterly basis. 6 (2) The commissioner of finance may also exclude or thereafter remove 7 from such list any parcels which are owned by a company organized pursu- 8 ant to article eleven of the private housing finance law with the 9 consent and approval of the department of housing preservation and 10 development, and (i) as to which an agreement has been duly made, 11 executed and filed with said commissioner for the payment of the delin- 12 quent taxes, assessments or other legal charges incurred prior to the 13 ownership of said parcel by said article eleven company, and the inter- 14 est and penalties thereon, in installments. The first installment there- 15 of shall be paid upon the filing of the installment agreement with the 16 commissioner and shall be in an amount of not less than ten percent of 17 such delinquent taxes, assessments or other legal charges and the inter- 18 est and penalty thereon. The remaining installments, which shall be 19 three times the number of unpaid quarters of real estate taxes or the 20 equivalent thereof but which shall in no event exceed forty-eight in 21 number shall be payable quarterly on the first days of July, October, 22 January and April. For the purposes of calculating the number of such 23 remaining installments unpaid real estate taxes which are, on and after 24 July first, nineteen hundred eighty-two due and payable on an other than 25 quarterly basis shall be deemed to be payable on a quarterly basis; and 26 (ii) as to which an agreement has been duly made, executed and filed 27 with said commissioner, for the payment of the delinquent taxes, assess- 28 ments or other legal charges incurred after the ownership of said parcel 29 by said article eleven company on the same terms as are provided in 30 paragraph one of this subdivision. 31 (3) The commissioner of finance may also exclude or thereafter remove 32 from such list any parcels which are owner-occupied residential build- 33 ings of not more than five residential units as to which an agreement 34 has been duly made, executed and filed with said commissioner for the 35 payment of the delinquent taxes, assessments, or other legal charges and 36 the interest and penalties thereon, in installments. The first install- 37 ment thereof shall be paid upon the filing of the installment agreement 38 with the commissioner and shall be in an amount not less than ten 39 percent of such delinquent taxes, assessment or other legal charges and 40 the interest and penalty thereon. The remaining installments, which 41 shall be three times the number of unpaid quarters of real estate taxes 42 or the equivalent thereof but which shall in no event exceed forty-eight 43 in number, shall be payable quarterly on the first days of July, Octo- 44 ber, January and April. For purposes of calculating the number of such 45 remaining installments unpaid real estate taxes which are, on and after 46 July first, nineteen hundred eighty-two, due and payable on an other 47 than quarterly basis shall be deemed to be payable on a quarterly basis. 48 (4) Notwithstanding paragraph one, two or three of this subdivision, 49 with respect to installment agreements duly made, executed and filed on 50 or after the date on which this paragraph takes effect, the commissioner 51 of finance may also exclude or thereafter remove from such list any 52 parcel that is (i) (A) a residential building containing not more than 53 five residential units, (B) a residential condominium unit, (C) a resi- 54 dential building held in a cooperative form of ownership, or (D) owned 55 by a company organized pursuant to article eleven of the state private 56 housing finance law with the consent and approval of the department ofS. 8474 311 1 housing preservation and development, and (ii) as to which an agreement 2 has been duly made, executed and filed with such commissioner for the 3 payment of the delinquent taxes, assessments or other legal charges, and 4 the interest and penalties thereon, in installments. The first install- 5 ment thereof shall be paid upon the filing of the installment agreement 6 with the commissioner and shall be in an amount equal to not less than 7 ten percent of the total amount of such delinquent taxes, assessments or 8 other legal charges and the interest and penalties thereon. The remain- 9 ing installments, which shall be three times the number of unpaid quar- 10 ters of real estate taxes or the equivalent thereof, but which shall in 11 no event exceed thirty-two in number, shall be payable quarterly on the 12 first days of July, October, January and April. For the purposes of 13 calculating the number of such remaining installments, unpaid real 14 estate taxes that are due and payable on other than a quarterly basis 15 shall be deemed to be payable on a quarterly basis. 16 (5) Notwithstanding paragraph one, two or three of this subdivision, 17 with respect to installment agreements duly made, executed and filed on 18 or after the date on which this paragraph takes effect, the commissioner 19 of finance may also exclude or thereafter remove from such list any 20 parcel of class one or class two real property, other than a parcel 21 described in paragraph four of this subdivision, as to which an agree- 22 ment has been duly made, executed and filed with such commissioner for 23 the payment of the delinquent taxes, assessments or other legal charges, 24 and the interest and penalties thereon, in installments. The first 25 installment thereof shall be paid upon the filing of the installment 26 agreement with the commissioner and shall be in an amount equal to not 27 less than fifteen percent of the total amount of such delinquent taxes, 28 assessments or other legal charges and the interest and penalties there- 29 on. The remaining installments, which shall be twice the number of 30 unpaid quarters of real estate taxes or the equivalent thereof, but 31 which shall in no event exceed thirty-two in number, shall be payable 32 quarterly on the first days of July, October, January and April. For the 33 purposes of calculating the number of such remaining installments, 34 unpaid real estate taxes that are due and payable on other than a quar- 35 terly basis shall be deemed to be payable on a quarterly basis. 36 (6) Notwithstanding paragraph one, two or three of this subdivision, 37 with respect to installment agreements duly made, executed and filed on 38 or after the date on which this paragraph takes effect, the commissioner 39 of finance may also exclude or thereafter remove from such list any 40 parcel of class three or class four real property as to which an agree- 41 ment has been duly made, executed and filed with such commissioner for 42 the payment of the delinquent taxes, assessments or other legal charges, 43 and the interest and penalties thereon, in installments. The first 44 installment thereof shall be paid upon the filing of the installment 45 agreement with the commissioner and shall be in an amount equal to not 46 less than fifteen percent of the total amount of such delinquent taxes, 47 assessments or other legal charges and the interest and penalties there- 48 on. The remaining installments, which shall be twice the number of 49 unpaid quarters of real estate taxes or the equivalent thereof, but 50 which shall in no event exceed twenty in number, shall be payable quar- 51 terly on the first days of July, October, January and April. For the 52 purposes of calculating the number of such remaining installments, 53 unpaid real estate taxes that are due and payable on other than a quar- 54 terly basis shall be deemed to be payable on a quarterly basis. 55 (7) A parcel for which any such installment agreement or agreements 56 have been filed with the commissioner shall be excluded or removed fromS. 8474 312 1 the list of delinquent taxes before the commencement of the in rem 2 action based upon such list only if the amounts paid pursuant to such 3 agreement exceed the amount required to pay all taxes and charges which 4 render said parcel eligible for inclusion in the in rem action and there 5 has been no default in such agreement prior to the commencement of said 6 action as to either quarterly installments or current taxes, assessments 7 or other legal charges. 8 (8) As a condition to entering into any agreement under this section 9 or section 11-409 of this chapter, the commissioner shall have received 10 from the applicant, an affidavit stating that each tenant located on the 11 parcel has been notified by certified mail that an application for an 12 installment agreement will be made and that a copy of a standard agree- 13 ment form has been included with such notification. Any false statement 14 in such affidavit shall not be grounds to cancel the agreement or affect 15 its validity in any way. 16 d. Two duplicate originals thereof, verified by the commissioner of 17 finance or a subordinate designated by the commissioner, shall be filed 18 in the office of the clerk of the county in which the parcels listed 19 therein are situated. Such filing shall constitute and have the same 20 force and effect as the filing and recording in such office of an indi- 21 vidual and separate notice of pendency of action and as the filing in 22 the supreme court in such county of an individual and separate complaint 23 by the city as to each parcel described in said list, to enforce the 24 payment of the delinquent taxes, assessments or other lawful charges 25 which have accumulated and become liens against such parcels. 26 e. Each county clerk with whom such a list of delinquent taxes is 27 filed shall, on the date of said filing, place and thereafter maintain 28 one duplicate original copy thereof, as separately and permanently bound 29 by the commissioner of finance, adjacent to and together with the block 30 index of notices of pendency of action and each county clerk shall, on 31 the date of said filing or as soon thereafter as with due diligence is 32 practicable, docket the parcels contained in the list of delinquent 33 taxes in said block index of notices of pendency of action, which shall 34 constitute due filing, recording and indexing of the separate notices 35 constituting said list of delinquent taxes in lieu of any other require- 36 ment under rule sixty-five hundred eleven of the civil practice law and 37 rules or otherwise. 38 f. The commissioner of finance shall file a copy of each list of 39 delinquent taxes, certified as such copy by him or her or a subordinate 40 designated by the commissioner, in the office of the corporation coun- 41 sel. 42 g. The validity of any proceeding hereunder shall not be affected by 43 any omission or error of the commissioner of finance in including or 44 excluding parcels from any such list or in the designation of a street 45 or street number or by any other similar omission or error. 46 § 11-406 Public notice of foreclosure. a. Upon the filing of a list of 47 delinquent taxes in the office of the county clerk, the commissioner of 48 finance forthwith shall cause a notice of foreclosure to be published at 49 least once a week for six successive weeks in the City Record and, 50 subject to section ninety-one of the judiciary law, in two newspapers, 51 one of which may be a law journal, to be designated by the commissioner 52 of finance, which are published in and are circulated throughout the 53 county in which the affected property is located. If there are no news- 54 papers published in such county, the commissioner of finance may desig- 55 nate newspapers published in the city of Staten Island which are circu- 56 lated throughout the affected county.S. 8474 313 1 b. Such notice shall clearly indicate that it is a notice of foreclo- 2 sure of tax liens; the section of a tax map or portion of a section of a 3 tax map in which the properties subject to foreclosure are located and 4 where the area affected by the action includes less than all parcels in 5 a section of a tax map or portion of a section of a tax map, the partic- 6 ular class or classes contained therein, and by a general description 7 which need not contain measurements and direction; where and when the 8 list of delinquent taxes was filed; the general nature of the informa- 9 tion contained in the list; that the filing of the list constitutes 10 commencement of a foreclosure action by the city in the supreme court 11 for the particular county and a notice of pendency of action against 12 each parcel listed; that such action is against the property only and no 13 personal judgment will be entered; that the list will be available for 14 inspection at the city collector's central office and at the borough 15 office of the city collector in which said property is located until a 16 specified date at least ten weeks after the date of first publication; 17 that until such date a parcel may be redeemed by paying all taxes and 18 charges contained in said list of delinquent taxes together with inter- 19 est and penalties thereon; that during said period of redemption and for 20 an additional period of twenty days after said last date for redemption 21 any person having any interest in or lien upon a parcel on the list may 22 file with the appropriate county clerk and serve upon the corporation 23 counsel a verified answer setting forth in detail the full name of said 24 answering party, the nature and amount of his or her interest or lien 25 and any legal defense against foreclosure; and that in the absence of 26 redemption or answer a judgment of foreclosure may be taken by default. 27 c. On or before the date of the first publication of such notice, the 28 commissioner of finance shall cause a copy of the notice to be mailed to 29 all owners, mortgagees, lienors or encumbrancers, who may be entitled to 30 receive such notice by virtue of any owner's registration or in rem card 31 filed in the office of the city collector pursuant to section 11-416 or 32 11-417 of this chapter. If such owner's registration or in rem cards 33 have not been filed in the office of the city collector then said notice 34 shall be mailed to the name and address, if any, appearing in the latest 35 annual record of assessed valuations. The commissioner of finance shall 36 cause to be inserted with such notice a statement substantially in the 37 following form: 38 "To the party to whom the enclosed notice is addressed: You are the 39 presumptive owner or lienor of one or more of the parcels mentioned and 40 described in the list referred to in the attached notice. Unless the 41 taxes and assessments and all other legal charges are paid, or an answer 42 is interposed; or an arrangement is made for payment of such taxes and 43 assessments and all other legal charges in installments, as provided by 44 statute, the ownership of said property will in due course pass to the 45 city of Staten Island as provided by the administrative code of the city 46 of Staten Island." 47 The failure of the commissioner of finance to mail such notice shall 48 not affect the validity of any proceeding brought pursuant to this chap- 49 ter as to any parcel other than the parcel with respect to which notice 50 was not mailed. 51 d. The commissioner of finance shall cause a copy of such notice to be 52 posted in the office of the commissioner of finance, in the county 53 courthouse of the county in which the property subject to such tax lien 54 is situated and at three other conspicuous places in the city in which 55 the affected properties are located.S. 8474 314 1 § 11-407 Redemption. a. After the filing of a list of delinquent taxes 2 and until a date at least ten weeks after the first publication of the 3 public notice of foreclosure, as determined by the commissioner of 4 finance and specified in the said notice, a person claiming to have an 5 interest in any parcel in said list may redeem it by paying all taxes 6 and charges contained in said list of delinquent taxes together with 7 interest and penalties thereon. 8 b. Upon such redemption the commissioner of finance shall deliver to 9 the corporation counsel a certificate of redemption. The corporation 10 counsel shall file such certificate with the clerk of the county in 11 which said list was filed. The filing of such certificate shall consti- 12 tute and be deemed a discontinuance of the in rem action as to the 13 affected parcel, and the county clerk shall thereupon note such redemp- 14 tion and discontinuance in the copy of the list of delinquent taxes 15 maintained by him or her adjacent to the county clerk's block index of 16 notices of pendency of action and shall cancel and discharge any 17 notations of the filing of said list of delinquent taxes as to said 18 parcel that may appear in any other books, records, indices and dockets 19 maintained in said clerk's office. The commissioner of finance shall 20 also deliver a duplicate original certificate of redemption to the 21 person who has redeemed. 22 c. When the time to redeem in an in rem tax foreclosure action has 23 expired, any person claiming to have an interest in a parcel included in 24 said action shall have the right to make a late redemption payment to 25 the commissioner of finance. Such late redemption payment shall consist 26 of all taxes and charges owing on said parcel, the lawful interest ther- 27 eon to the date of payment and a penalty of five percent of said payment 28 of taxes, charges and interest, which penalty may not exceed one thou- 29 sand dollars as to each parcel on which a late redemption payment is 30 being made. Such late redemption payment shall be made in cash or by 31 certified or bank check and shall be accepted by the commissioner of 32 finance at any time after the last day to redeem up to the date on which 33 the commissioner is advised by the corporation counsel that the prepara- 34 tion of the judgment of foreclosure in the in rem action has been 35 commenced. Upon receipt of such late redemption payment, the commission- 36 er of finance shall issue a certificate of withdrawal pursuant to the 37 provisions of section 11-413 of this chapter. 38 § 11-408 Filing of affidavits. All affidavits of filing, publication, 39 posting, mailing or other acts required by this chapter shall be made by 40 the person or persons performing such acts and shall be filed in the 41 office of the county clerk of the county in which the property subject 42 to such tax lien is situated and shall together with all other documents 43 required by this chapter to be filed in the office of such county clerk, 44 constitute and become a part of the judgment roll in such foreclosure 45 action. 46 § 11-409 Severance and trial of issues where answer is interposed; 47 installment agreements authorized after action commenced. a. If a duly 48 verified answer is served upon the corporation counsel not later than 49 twenty days after the last date for redemption, the answering defendant 50 shall have the right to a severance of the action, as to any parcel in 51 which the defendant has pleaded an interest, upon written demand there- 52 for filed with or made a part of his or her answer. 53 b. When such answer is interposed, the court shall summarily hear and 54 determine the issues raised by the complaint and answer in the same 55 manner as it hears and determines other actions, except as herein other- 56 wise provided. Proof that the taxes which made said property subject toS. 8474 315 1 foreclosure hereunder together with interest and penalties thereon, were 2 paid before filing of the list of delinquent taxes or that the property 3 was not subject to tax shall constitute a complete defense. 4 c. No counterclaim may be asserted in an answer interposed in an 5 action brought pursuant to this chapter. Where a counterclaim is 6 asserted in an in rem answer the city may disregard that portion of the 7 answer and shall suffer no legal penalty or impediment in the prose- 8 cution of its in rem action for its failure to reply or respond thereto. 9 Where an answer contains only a counterclaim and no other defenses the 10 city may proceed to judgment of foreclosure against the property 11 affected without the need for moving against the answer. 12 d. When a verified answer alleges a substantial equity over the city's 13 lien for taxes, the defendant may demand additional time in which to pay 14 the taxes and interest or to have the property sold with all taxes and 15 interest to be paid out of the proceeds of such sale. Upon such demand a 16 defendant shall have the right to an extension of time for such purpose 17 not in excess of six months from the last day to interpose an answer. 18 Where a mortgagee or lienor who has interposed such answer commences a 19 proceeding to foreclose his or her mortgage or lien and it appears that 20 with due diligence such proceeding cannot be concluded in time to allow 21 the payment of taxes within the aforesaid six month period, the court 22 may, on application before the end of said six month period, authorize 23 an additional period during which such proceeding may be concluded and 24 the taxes, together with interest and penalties, paid. 25 e. Where an answer of the type described in subdivision d of this 26 section is interposed and taxes are paid within the period set forth in 27 such subdivision, the commissioner of finance shall issue a certificate 28 of withdrawal as to the property on which such payment has been made 29 pursuant to the provisions of section 11-413 of this chapter. When taxes 30 are not paid within the period set forth in subdivision d of this 31 section, it shall be deemed that there was no equity over the city's tax 32 liens and the answer shall be deemed to be without merit. The city in 33 that event may proceed to judgment of foreclosure against such property 34 without moving against the answer. 35 f. All answers interposed in an action hereunder and all affidavits 36 and other papers pertaining to any litigation involving such answers or 37 to any proceeding brought pursuant to this chapter involving less than 38 an entire action shall bear a caption containing the in rem action 39 number of the city's tax foreclosure proceeding, the section of a tax 40 map or portion of a section of a tax map affected, and if the action 41 covers less than all parcels in the section of a tax map or portion of a 42 section of a tax map, the particular class or classes, and the serial, 43 section, block and lot numbers of the parcel or parcels in issue. 44 g. The corporation counsel, when submitting an in rem judgment roll 45 pursuant to the provisions of this chapter, may request a severance as 46 to any parcel on which an in rem answer or litigation is pending, or as 47 to which, before the preparation of said in rem judgment roll is 48 commenced, an agreement was duly made, executed and filed with the 49 commissioner of finance for the payment of the delinquent taxes, assess- 50 ments or other legal charges and interest and penalties in installments 51 as provided in subdivision c of section 11-405 of this chapter and there 52 has been no default in such agreement as to either quarterly install- 53 ments or current taxes, assessments or other legal charges. Where such 54 an agreement is entered into subsequent to the last date for redemption 55 specified in subdivision a of section 11-407 of this chapter, there 56 shall be paid to the commissioner of finance at the time the aforesaidS. 8474 316 1 agreement is executed an amount equal to the penalty which would have 2 been payable under subdivision c of section 11-407 of this chapter had 3 the person executing the agreement made a late redemption payment. Such 4 amount shall be in addition to any installment payments required to be 5 made under the agreement and shall not be credited against any such 6 installment payments. Where a default occurs in such agreement as to 7 either quarterly installments or current taxes, assessments or other 8 legal charges, all payments made under the agreement shall be forfeited 9 and the city shall be entitled to acquire the parcel as to which the 10 default occurred. Where such default occurs before the submission of the 11 judgment roll, the parcels as to which such default occurs shall be 12 included in said judgment roll among the parcels to be acquired by the 13 city. Where such default has occurred as to a parcel severed pursuant to 14 this subdivision, the corporation counsel shall cause to be entered a 15 supplemental judgment of foreclosure as to such parcel immediately on 16 notification by the commissioner of finance of such default. Where such 17 installment agreement is paid in full the commissioner of finance shall 18 discontinue the in rem action from which said parcel was severed by 19 issuing a certificate of withdrawal as to said parcel pursuant to the 20 provisions of section 11-413 of this chapter. 21 h. A party who has interposed an answer as to any parcel included in 22 an in rem tax foreclosure action, or any other party interested in such 23 parcel, shall have the right, at any time prior to the final disposition 24 of a motion to strike said answer, to pay all taxes, assessments and 25 other legal charges and interest owing on said parcel. An answering 26 party who makes such payment shall not be required to pay any penalty. 27 Where such payment is made by other than an answering party after the 28 expiration of the period of redemption, there shall be paid to the 29 commissioner of finance an additional amount equal to the penalty paya- 30 ble under subdivision c of section 11-407 of this chapter. Where all 31 delinquent taxes, assessments and other legal charges together with 32 lawful interest thereon and penalties, where required, are paid, the 33 commissioner of finance shall issue a certificate of withdrawal as to 34 said parcel pursuant to the provisions of section 11-413 of this chap- 35 ter. Said parties may also pay such taxes, assessments and other legal 36 charges and interest by an installment agreement. Where such agreement 37 is requested before the preparation of the aforesaid in rem judgment 38 roll is commenced, the terms of said agreement shall be consistent with 39 the provisions of subdivision g or i of this section, whichever is 40 applicable. Where such agreement is requested after judgment of foreclo- 41 sure has been entered in the in rem action in which the aforesaid answer 42 was interposed, said agreement shall require a first installment of 43 fifty percent of all taxes, assessments and other legal charges and 44 interest owing on said parcel, a penalty of five percent of all such 45 taxes, assessments and other legal charges and interest, which penalty 46 may not exceed one thousand dollars, and the payment of the balance of 47 such taxes, assessments and other legal charges and interest in four 48 equal quarterly installments together with all current taxes, assess- 49 ments and other legal charges that accrue during such period. The 50 request of an answering party for an installment agreement shall consti- 51 tute a withdrawal of such party's answer. An installment agreement 52 requested by an interested party other than the answering party shall 53 require the consent of said answering party which shall also constitute 54 a withdrawal of such party's answer. The severance provided for in this 55 section shall be continued during the term of all installment agreements 56 entered into pursuant to the provisions of this subdivision. Where aS. 8474 317 1 default has occurred as to a parcel severed pursuant to this subdivi- 2 sion, the corporation counsel shall cause to be entered a supplemental 3 judgment of foreclosure as to such parcel immediately on notification by 4 the commissioner of finance of such default. Where such installment 5 agreement is paid in full, the commissioner of finance shall discontinue 6 the in rem action from which said parcel was severed by issuing a 7 certificate of withdrawal as to said parcel pursuant to the provisions 8 of section 11-413 of this chapter. 9 i. (1) Notwithstanding subdivision g of this section, this subdivision 10 shall apply with respect to installment agreements made, executed and 11 filed with the commissioner of finance on or after the date on which 12 this subdivision takes effect. An installment agreement pursuant to this 13 subdivision may be made, executed and filed with such commissioner 14 during the period beginning on the date on which an action is commenced 15 as provided in subdivision d of section 11-405 of this chapter with 16 respect to the parcel that is the subject of such agreement and ending 17 on the date on which such commissioner is advised by the corporation 18 counsel that the preparation of the judgment of foreclosure in such in 19 rem action has been commenced. Notwithstanding anything to the contrary, 20 and except to the extent provided in paragraph two of this subdivision, 21 the provisions of paragraphs one through six of subdivision c of section 22 11-405 of this chapter shall not apply to any installment agreement 23 requested on or after the date on which this subdivision takes effect 24 and on or after the date on which an action is commenced as provided in 25 subdivision d of such section 11-405 with respect to the parcel that is 26 the subject of such requested agreement. 27 (2) An agreement entered into pursuant to this subdivision shall 28 provide for the payment in installments of the delinquent taxes, assess- 29 ments and other legal charges, and the interest and penalties thereon, 30 due and owing as of the date on which such agreement is requested. 31 Unless an eligible owner or other interested person requests an agree- 32 ment pursuant to the provisions of paragraph three of this subdivision, 33 the terms of such agreement with respect to a parcel shall be the same 34 as the terms that would be applicable to such parcel under paragraph 35 four, five or six, as the case may be, of subdivision c of section 36 11-405 of this chapter, except that, for purposes of the agreement 37 pursuant to this paragraph, the amount of the first installment shall be 38 equal to: (i) fifteen percent of the total amount due in the case of a 39 parcel described in paragraph four of subdivision c of section 11-405 of 40 this chapter; (ii) twenty percent of the total amount due in the case of 41 a parcel described in paragraph five of subdivision c of section 11-405 42 of this chapter; and (iii) twenty-five percent of the total amount due 43 in the case of a parcel described in paragraph six of subdivision c of 44 section 11-405 of this chapter. 45 (3) Instead of an agreement pursuant to paragraph two of this subdivi- 46 sion, an eligible owner or other interested party may request an agree- 47 ment pursuant to the following provisions: 48 (i) With respect to a parcel that is owned by a company organized 49 pursuant to article eleven of the state private housing finance law with 50 the consent and approval of the department of housing preservation and 51 development, such agreement shall provide for the payment in install- 52 ments of the delinquent taxes, assessments and other legal charges, and 53 the interest and penalties thereon, due and owing as of the date on 54 which such agreement is requested. The first installment thereof shall 55 be paid upon the filing of the installment agreement with the commis- 56 sioner of finance and shall be in an amount at least equal to, at theS. 8474 318 1 applicant's election, either thirty-five percent or fifty percent of the 2 total amount of such delinquent taxes, assessments or other legal charg- 3 es and the interest and penalties thereon. The remaining installments, 4 which shall be three times the number of unpaid quarters of real estate 5 taxes or the equivalent thereof, but which shall in no event exceed 6 thirty-two in number, shall be payable quarterly on the first days of 7 July, October, January and April, together with interest at the rate or 8 rates determined as provided in subparagraph (iv) of this paragraph. For 9 the purposes of calculating the number of such remaining installments, 10 unpaid real estate taxes that are due and payable on other than a quar- 11 terly basis shall be deemed to be payable on a quarterly basis. 12 (ii) With respect to a parcel, other than a parcel described in 13 subparagraph (i) of this paragraph, that is a residential building 14 containing not more than five residential units, a residential condomin- 15 ium unit or a residential building held in a cooperative form of owner- 16 ship, such agreement shall provide for the payment in installments of 17 the delinquent taxes, assessments and other legal charges, and the 18 interest and penalties thereon, due and owing as of the date on which 19 such agreement is requested. The first installment thereof shall be paid 20 upon the filing of the installment agreement with the commissioner of 21 finance and shall be in an amount at least equal to, at the applicant's 22 election, either twenty-five percent or fifty percent of the total 23 amount of such delinquent taxes, assessments or other legal charges and 24 the interest and penalties thereon. The remaining installments, which 25 shall be three times the number of unpaid quarters of real estate taxes 26 or the equivalent thereof, but which shall in no event exceed twenty in 27 number, shall be payable quarterly on the first days of July, October, 28 January and April together with interest at the rate or rates determined 29 as provided in subparagraph (iv) of this paragraph. For the purposes of 30 calculating the number of such remaining installments, unpaid real 31 estate taxes that are due and payable on other than a quarterly basis 32 shall be deemed to be payable on a quarterly basis. 33 (iii) With respect to any parcel of class one or class two real prop- 34 erty, other than a parcel described in subparagraph (i) or (ii) of this 35 paragraph, such agreement shall provide for the payment in installments 36 of the delinquent taxes, assessments and other legal charges, and the 37 interest and penalties thereon, due and owing as of the date on which 38 such agreement is requested. The first installment thereof shall be paid 39 upon the filing of the installment agreement with the commissioner of 40 finance and shall be in an amount at least equal to, at the applicant's 41 election, either thirty-five percent or fifty percent of the total 42 amount of such delinquent taxes, assessments or other legal charges and 43 the interest and penalties thereon. The remaining installments, which 44 shall be twice the number of unpaid quarters of real estate taxes or the 45 equivalent thereof, but which shall in no event exceed twenty in number, 46 shall be payable quarterly on the first days of July, October, January 47 and April, together with interest at the rate or rates determined as 48 provided in subparagraph (iv) of this paragraph. For the purposes of 49 calculating the number of such remaining installments, unpaid real 50 estate taxes that are due and payable on other than a quarterly basis 51 shall be deemed to be payable on a quarterly basis. 52 (iv) (A) Notwithstanding any higher rate of interest prescribed pursu- 53 ant to applicable law, and unless a lower rate of interest is applicable 54 to a delinquent amount owing on a parcel that is the subject of an 55 agreement pursuant to this paragraph, the interest payable together with 56 the remaining installments due under such agreement shall be:S. 8474 319 1 (I) with respect to an agreement for which a twenty-five percent or 2 thirty-five percent down payment was made, calculated at a rate equal to 3 the sum of (a) the rate prescribed for the applicable period pursuant to 4 paragraph (i) of subdivision e of section 11-224.1 of this title and (b) 5 one-half of the difference between such rate and the rate prescribed for 6 such period pursuant to paragraph (ii) of subdivision e of section 7 11-224.1 of this title; or 8 (II) with respect to an agreement for which a fifty percent down 9 payment was made, calculated at a rate equal to the rate prescribed for 10 the applicable period pursuant to paragraph (i) of subdivision e of 11 section 11-224.1 of this title. 12 (B) If a default occurs in any agreement executed pursuant to this 13 paragraph as to either quarterly installments or current taxes, assess- 14 ments or other legal charges, the rates of interest determined under 15 this subparagraph shall thereupon cease to be applicable and the commis- 16 sioner of finance shall thereafter charge, collect and receive interest 17 in the manner and at the rates otherwise prescribed pursuant to law. 18 (4) The corporation counsel, when submitting an in rem judgment roll 19 pursuant to the provisions of this chapter, may request a severance as 20 to any parcel as to which, before the preparation of said in rem judg- 21 ment roll is commenced, an agreement was duly made, executed and filed 22 with the commissioner of finance for the payment of all delinquent 23 taxes, assessments and other legal charges and interest and penalties in 24 installments as provided in this subdivision, and there has been no 25 default in such agreement as to either quarterly installments or current 26 taxes, assessments or other legal charges. Where such an agreement is 27 entered into subsequent to the last date for redemption specified in 28 subdivision a of section 11-407 of this chapter, there shall be paid to 29 the commissioner of finance at the time such agreements are executed an 30 amount equal to the penalty that would have been payable under subdivi- 31 sion c of section 11-407 of this chapter had the person executing the 32 agreement made a late redemption payment. Such amount shall be in addi- 33 tion to any installment payments required to be made under the agreement 34 and shall not be credited against any such installment payments. Where a 35 default occurs in such agreement as to either quarterly installments or 36 current taxes, assessments or other legal charges, all payments made 37 under the agreement shall be forfeited and the city shall be entitled to 38 obtain a judgment hereunder as to the parcel as to which the default 39 occurred. Where such default occurred before the submission of the judg- 40 ment roll, the parcels as to which such default occurs shall be included 41 in said judgment roll amount the parcels to be acquired by the city or 42 by a third party. Where such default has occurred as to a parcel severed 43 pursuant to this subdivision, the corporation counsel shall cause to be 44 entered a supplemental judgment of foreclosure as to such parcel imme- 45 diately on notification by the commissioner of finance of such default. 46 Where such installment agreement is paid in full, the commissioner of 47 finance shall discontinue the in rem action from which such parcel was 48 severed by issuing a certificate of withdrawal as to such parcel pursu- 49 ant to the provisions of section 11-413 of this chapter. 50 § 11-410 Preference over other actions. a. Any action brought pursuant 51 to this chapter shall be given preference over all other causes and 52 actions. 53 b. Actions brought pursuant to this chapter shall take precedence over 54 any proceeding brought to foreclose a mortgage or other lien involving 55 the same property. A parcel included in a list of delinquent taxes 56 which is sold in a mortgage foreclosure sale held after said list isS. 8474 320 1 filed may not be sold subject to taxes even if judgment has not yet been 2 entered in the tax foreclosure action. All unpaid taxes and interest and 3 penalties thereon must be paid, in full or by installment agreement 4 pursuant to the provisions of this chapter, out of the proceeds of such 5 sale regardless of whether the mortgage foreclosure lis pendens was 6 filed before or after the filing of the tax foreclosure action, regard- 7 less of whether any party to the mortgage foreclosure proceeding has 8 interposed an answer in the tax foreclosure action and regardless of any 9 terms to the contrary in the judgment in the mortgage foreclosure 10 proceeding. 11 § 11-411 Presumption of validity. It shall not be necessary for the 12 city to plead or prove the various steps, procedures and notices for the 13 assessment and levy of the taxes, assessments or other lawful charges 14 against the parcels set forth in the list of delinquent taxes and all 15 such taxes, assessments or other lawful charges and the lien thereof 16 shall be presumed to be valid. A defendant alleging any jurisdictional 17 defect or invalidity in such taxes, assessments or other lawful charges 18 or in the foreclosure thereof must particularly specify in his or her 19 answer such jurisdictional defect or invalidity and must affirmatively 20 establish such defense. A judgment of foreclosure granted in any 21 proceeding brought pursuant to this chapter, which contains recitals 22 that any acts were done or proceedings had which were necessary to give 23 the court jurisdiction or power to grant such judgment of foreclosure, 24 shall be presumptive evidence that such acts were duly performed or 25 proceedings duly had, if such judgment of foreclosure shall have been 26 duly entered or filed in the office of the clerk of the county in which 27 the proceeding was pending and wherein such judgment was granted. The 28 provisions of this chapter shall apply to and be valid and effective 29 with respect to all defendants even though one or more of them be 30 infants, incompetents, absentees or non-residents of the state of New 31 York. 32 § 11-412 Final judgment. a. The court shall determine upon proof and 33 shall make finding upon such proof whether there has been due compliance 34 by the city with the provisions of this chapter. 35 b. The court shall make a final judgment awarding to the city the 36 possession of any parcel described in the list of delinquent taxes not 37 redeemed or withdrawn as provided in this chapter and as to which no 38 answer is interposed as provided herein. In addition thereto, such judg- 39 ment shall contain a direction to the commissioner of finance to 40 prepare, execute and cause to be recorded a deed conveying to the city 41 full and complete title to such lands. Upon the execution of such deed, 42 the city shall be seized of an estate in fee simple absolute in such 43 land and all persons, including the state of New York, infants, incompe- 44 tents, absentees and non-residents who may have had any right, title, 45 interest, claim, lien or equity of redemption in or upon such lands 46 shall be barred and forever foreclosed of all such right, title, inter- 47 est, claim, lien or equity of redemption, except as otherwise provided 48 in section 11-424 of this chapter. The appointment and tenure of receiv- 49 ers, trustees or any other persons, including administrators under arti- 50 cle seven-A of the real property actions and proceedings law, appointed 51 by an order of a court to manage real property, shall terminate when 52 title to such property vests in the city pursuant to the provisions of 53 this chapter. After such termination, said receivers, trustees or admin- 54 istrators shall be accountable to the courts that appointed them for the 55 faithful performance of their fiduciary obligations during the term of 56 their appointment and to the city for any rents and income received byS. 8474 321 1 them for any period subsequent to the date of the vesting of title in 2 the city. 3 If the city serves a tenant in possession of a dwelling unit with 4 notice of termination of tenancy on grounds other than non-payment of 5 rent, the acceptance of rent for the first forty-five days after termi- 6 nation of tenancy by anyone other than an employee of the department 7 designated by the department to receive such rent shall not be deemed or 8 construed as a waiver of the city's right to initiate and prosecute a 9 proceeding to terminate the tenancy for good cause. 10 c. Every deed given pursuant to the provisions of this section shall 11 be presumptive evidence that the action and all proceedings therein and 12 all proceedings prior thereto from and including the assessment of the 13 lands affected and all notices required by law were regular and in 14 accordance with all provisions of law relating thereto. After two years 15 from the date of the recording of such deed, the presumption shall be 16 conclusive, unless at the time that this subdivision takes effect the 17 two year period since the recording of the deed has expired or less than 18 six months of such period of two years remains unexpired, in which case 19 the presumption shall become conclusive six months after this subdivi- 20 sion takes effect. No action to set aside such deed may be maintained 21 unless the action is commenced and a notice of pendency of the action is 22 filed in the office of the proper county clerk prior to the time that 23 the presumption becomes conclusive as aforesaid. 24 § 11-412.1 Special procedures relating to final judgment and release 25 of class one and class two real property. Notwithstanding any other 26 provision of law to the contrary: 27 a. The court shall determine upon proof and shall make a finding upon 28 such proof whether there has been due compliance by the city with the 29 applicable provisions of this chapter. 30 b. (1) The court shall make a final judgment authorizing the award of 31 possession of any parcel of class one or class two real property 32 described in the list of delinquent taxes not redeemed or withdrawn as 33 provided in this chapter and as to which no answer is interposed as 34 provided herein, and authorizing the commissioner of finance to prepare, 35 execute and cause to be recorded a deed conveying either to the city or 36 to a third party deemed qualified and designated by the commissioner of 37 housing preservation and development full and complete title to such 38 lands. Any such conveyance to a third party shall be for an existing 39 use. 40 (2) Such third party shall be deemed qualified and shall be designated 41 pursuant to such criteria as are established in rules promulgated by the 42 commissioner of housing preservation and development, provided, however, 43 that such criteria shall include but not be limited to: residential 44 management experience; financial ability; rehabilitation experience; 45 ability to work with government and community organizations; neighbor- 46 hood ties; and that the commissioner shall consider whether the third 47 party is a responsible legal tenant, not-for-profit organization or 48 neighborhood-based-for-profit individual or organization. The commis- 49 sioner shall not deem qualified any third party who has been finally 50 adjudicated by a court of competent jurisdiction, within seven years of 51 the date on which such third party would otherwise be deemed qualified, 52 to have violated any section of article one hundred fifty, one hundred 53 seventy-five, one hundred seventy-six, one hundred eighty, one hundred 54 eighty-five or two hundred of the penal law or any similar laws of 55 another jurisdiction, or who has been suspended or debarred from 56 contracting with the city or any agency of the city pursuant to sectionS. 8474 322 1 335 of the charter during the period of such suspension or debarment. 2 The rules promulgated by the commissioner pursuant to this paragraph may 3 establish other bases for disqualification of a third party. 4 c. Following the expiration of the four-month period prescribed in 5 subdivision d of this section, but not more than eight months after the 6 date on which, pursuant to subdivision b of this section, the final 7 judgment authorizing the award of possession of a parcel of class one or 8 class two real property was entered, the commissioner of finance may 9 execute a deed, pursuant to subdivision b of this section, with respect 10 to such parcel. The owner of said parcel shall continue to have all of 11 the rights, liabilities, responsibilities, duties and obligations of an 12 owner of such parcel, including, but not limited to, maintaining such 13 parcel in compliance with the housing maintenance, building and fire 14 codes, and all other applicable laws, unless and until the commissioner 15 of finance has prepared and executed a deed conveying to the city or to 16 a third party full and complete title to such parcel. Upon the execution 17 of such deed, the city or the third party shall be seized of an estate 18 in fee simple absolute in such land and all persons, including the state 19 of New York, infants, incompetents, absentees and non-residents who may 20 have had any right, title, interest, claim, lien or equity of redemption 21 in or upon such lands shall be barred and forever foreclosed of all such 22 right, title, interest, claim, lien or equity of redemption, except as 23 otherwise provided in subdivisions e and f of this section. The appoint- 24 ment and tenure of receivers, trustees or any other persons, including 25 administrators under article seven-A of the real property actions and 26 proceedings law, appointed by an order of a court to manage real proper- 27 ty, shall terminate when title to such property vests in the city or a 28 third party pursuant to the provisions of this chapter. After such 29 termination, said receivers, trustees or administrators shall be 30 accountable to the courts that appointed them for the faithful perform- 31 ance of their fiduciary obligations during the term of their appointment 32 and to the city or such third party for any rents and income received by 33 them for any period subsequent to the date of the vesting of title in 34 the city or such third party. 35 If the city serves a tenant in possession of a dwelling unit with 36 notice of termination of tenancy on grounds other than nonpayment of 37 rent, the acceptance of rent for the first forty-five days after termi- 38 nation of tenancy by anyone other than an employee of the department 39 designated by the department to receive such rent shall not be deemed or 40 construed as a waiver of the city's right to initiate and prosecute a 41 proceeding to terminate the tenancy for good cause. 42 d. Within four months after the date on which, pursuant to subdivision 43 b of this section, the final judgment authorizing the award of 44 possession of a parcel of class one or class two real property was 45 entered, any person claiming to have an interest in such parcel shall 46 have the right to make a payment to the commissioner of finance consist- 47 ing of all taxes, assessments and other legal charges owing on said 48 parcel, the lawful interest thereon to the date of payment and a penalty 49 of five percent of said payment of taxes, assessments and other legal 50 charges and interest, which penalty may not exceed one thousand dollars. 51 Such payment shall be made in cash or by certified or bank check. Within 52 such four-month period, such interested person may also request an 53 installment agreement from the commissioner of finance. Such agreement 54 shall require, in addition to full payment of the penalty specified in 55 this subdivision at the time such agreement is entered into, the payment 56 at such time of a first installment equal to fifty percent of all taxes,S. 8474 323 1 assessments and other legal charges, and the lawful interest thereon, 2 then owing on such parcel, and the payment of the balance of such taxes, 3 assessments and other legal charges and interest in four equal quarterly 4 installments together with all current taxes, assessments and other 5 legal charges that accrue during such period. Upon receipt of payment in 6 full of the amount specified in this subdivision, the commissioner of 7 finance shall direct the corporation counsel to prepare and cause to be 8 entered an order discontinuing the in rem tax foreclosure action as to 9 said property, cancelling the notice of pendency of such action as to 10 said property and vacating and setting aside the final judgment. Upon 11 the execution of an installment agreement and payment of the amounts due 12 at the time such agreement is executed as provided in this subdivision, 13 the commissioner of finance shall direct the corporation counsel to 14 prepare and cause to be entered an order vacating and setting aside the 15 final judgment. The entry of either such order shall restore all 16 parties, including owners, mortgagees and any and all lienors, receivers 17 and administrators and encumbrancers, to the status they held immediate- 18 ly before such final judgment was entered. Where the commissioner of 19 finance approves an application requesting an installment agreement 20 pursuant to this subdivision, the order vacating and setting aside the 21 final judgment shall provide that in the event of any default as to the 22 payment of either quarterly installments or current taxes, assessments 23 or other legal charges during the term of such agreement, all payments 24 under said agreement shall be forfeited and the corporation counsel, 25 immediately upon notification by the commissioner of finance of such 26 default, shall cause to be entered as to such property a supplemental 27 judgment of foreclosure in the in rem action which authorizes the 28 commissioner of finance to prepare, execute and cause to be recorded a 29 deed conveying either to the city or to a third party full and complete 30 title to such lands. Upon the entry of such supplemental judgment, the 31 provisions of subdivisions c through i of this section shall apply in 32 the same manner as such subdivisions would have applied had no payment 33 been made nor installment agreement executed during the four-month peri- 34 od specified in this subdivision. 35 e. 1. If the commissioner of finance has prepared, executed and caused 36 to be recorded a deed conveying to the city full and complete title to a 37 parcel of class one or class two real property acquired by in rem tax 38 foreclosure, the city's interest in such parcel may be released pursuant 39 to this subdivision on the application of any party who has an interest 40 in said parcel as either owner, mortgagee, lienor, or encumbrancer at 41 the time of the city's acquisition thereof where such application is 42 made at any time up to sixteen months from the date on which the deed by 43 which the city acquired title to said parcel was recorded. 44 2. Any such application shall be made in writing to the commissioner 45 of general services and shall be verified. It shall contain the informa- 46 tion required pursuant to paragraph one of subdivision b of section 47 11-424 of this chapter, the documents required by subdivision c of such 48 section, and shall be accompanied by the fees required by paragraphs 49 three and six of subdivision b of such section. The fee required by 50 paragraph three of subdivision b of section 11-424 of this chapter shall 51 not be refundable. 52 3. The city's interest in any such parcel shall be released only after 53 payment of the sums of money specified in subdivision d of section 54 11-424 of this chapter. 55 4. The provisions contained in subdivision g of section 11-424 of this 56 chapter shall govern such an application, except as follows:S. 8474 324 1 (a) where such provisions are inconsistent with the provisions 2 contained in this subdivision, the provisions contained in this subdivi- 3 sion shall govern such application; and 4 (b) where the in rem foreclosure release board denies a written 5 request for an installment agreement that was filed in connection with 6 an application for release of the city's interest in a parcel of class 7 one or class two real property and such application was filed within 8 thirty days of the date of the city's acquisition of the property sought 9 to be released, the board may, in its discretion, authorize a release of 10 the city's interest, provided that the applicant thereafter pays all the 11 amounts required to be paid pursuant to subdivision d of section 11-424 12 of this chapter within thirty days of the date on which a letter 13 requesting such payment is mailed or delivered to such applicant. 14 5. Upon receipt of all the amounts required to be paid pursuant to 15 this subdivision, the commissioner of finance shall direct the corpo- 16 ration counsel to prepare and cause to be entered an order discontinuing 17 the in rem tax foreclosure action as to said property, cancelling the 18 notice of pendency of such action as to said property and vacating and 19 setting aside the final judgment entered pursuant to subdivision b of 20 this section and the deed executed and recorded pursuant to such final 21 judgment as to said property. The entry of such order shall restore all 22 parties, including owners, mortgagees and any and all lienors, receivers 23 and administrators and encumbrancers, to the status they held immediate- 24 ly before the final judgment was entered, as if the in rem tax foreclo- 25 sure had never taken place, and shall render said property liable for 26 all taxes, deficiencies, management fees and liens which shall accrue 27 subsequent to those paid in order to obtain the release provided for in 28 this subdivision, or which were, for whatever reason, omitted from the 29 payment made to obtain said release. 30 f. If the commissioner of finance has prepared, executed and caused to 31 be recorded a deed conveying to the city full and complete title to a 32 parcel of class one or class two real property acquired by in rem tax 33 foreclosure and such parcel is entitled to an exemption under any of the 34 provisions of article four of the real property tax law during all or 35 part of the period covered by the tax items appearing on a list of 36 delinquent taxes, the owner of such parcel may apply for a release of 37 the city's interest in such exempt property under the provisions of 38 subdivision e of this section during the period of time set forth in 39 paragraph one of such subdivision and for an additional period up to ten 40 years from the date on which the deed by which the city acquired title 41 to said property was recorded. The application of such owner shall be 42 accompanied by the nonrefundable fee required by paragraph four of 43 subdivision b of section 11-424 of this chapter and shall contain, in 44 addition to the statements, searches and proofs required by subdivision 45 e of this section, a statement that an exemption under the real property 46 tax law is being claimed. Such application shall also state either that 47 it is accompanied by the written certificate of the comptroller setting 48 forth the precise period during which said property, while owned by such 49 application, and during the period after the city's acquisition up to 50 the date of the certificate if said property was still being used for an 51 exempt purpose after said acquisition, was entitled to an exemption and 52 the exact nature and extent of such exemption or that an application for 53 such written certificate has been filed with the comptroller. On issuing 54 such written certificate, the comptroller shall cancel those tax items 55 which have accrued during the period covered by the certificate to the 56 extent the applicant is entitled to an exemption as set forth in theS. 8474 325 1 certificate. A release of the city's interest may be authorized only at 2 the discretion of the in rem foreclosure release board and, except as 3 otherwise provided in paragraph four of subdivision e of this section, 4 subject to all the restrictions set forth in subdivision g of section 5 11-424 of this chapter. A release to an exempt applicant shall be 6 effected only after said applicant has paid all of the amounts required 7 to be paid by subdivision d of section 11-424 of this chapter, except 8 for those tax items which have been canceled, in whole or in part, 9 pursuant to the comptroller's certificate, within thirty days of the 10 date on which the letter requesting payment is mailed or delivered to 11 the applicant. 12 g. If the commissioner of finance has prepared, executed and caused to 13 be recorded a deed conveying to the city or to a third party full and 14 complete title to a parcel of class one or class two real property 15 acquired by in rem tax foreclosure, the provisions contained in subdivi- 16 sions f and i of section 11-424 of this chapter for the release of prop- 17 erty so acquired shall not be available. If the commissioner of finance 18 has prepared, executed and caused to be recorded a deed conveying to a 19 third party full and complete title to a parcel of class one or class 20 two real property acquired by in rem tax foreclosure, the provisions 21 contained in subdivisions e and f of this section for the release of 22 property so acquired shall not be available. 23 h. Every deed given pursuant to the provisions of this section shall 24 be presumptive evidence that the action and all proceedings therein and 25 all proceedings prior thereto from and including the assessment of the 26 lands affected and all notices required by law were regular and in 27 accordance with all provisions of law relating thereto. After four 28 months from the date of entry of the final judgment authorizing the 29 award of possession of any parcel of class one or class two real proper- 30 ty pursuant to the provisions of this section, the presumption shall be 31 conclusive. No action to set aside such deed may be maintained unless 32 the action is commenced and a notice of pendency of the action is filed 33 in the office of the property county clerk prior to the time that the 34 presumption becomes conclusive as aforesaid. Should any lawsuit or 35 proceeding be commenced to set aside a deed conveying to a third party a 36 parcel of class one or class two real property pursuant to the 37 provisions of this section, such third party shall send to the corpo- 38 ration counsel within ten days of their receipt a copy of any papers 39 served on such third party in such lawsuit or proceeding. 40 i. If the commissioner of finance does not execute a deed conveying to 41 the city or to a third party a parcel of class one or class two real 42 property within eight months after the entry of final judgment authoriz- 43 ing the award of possession of such parcel pursuant to subdivision b of 44 this section, the commissioner of finance shall direct the corporation 45 counsel to prepare and cause to be entered an order discontinuing the in 46 rem foreclosure action as to said property, canceling the notice of 47 pendency of such action as to said property and vacating and setting 48 aside said final judgment. The entry of such order shall restore all 49 parties, including owners, mortgagees and any and all lienors, receivers 50 and administrators and encumbrancers, to the status they held immediate- 51 ly before such final judgment was entered. 52 j. If the commissioner of finance directs the corporation counsel, 53 pursuant to subdivision i of this section, to prepare and cause to be 54 entered an order discontinuing the in rem foreclosure action with 55 respect to a parcel of class one or class two real property determined 56 to be distressed pursuant to section 11-401.1 of this chapter, theS. 8474 326 1 commissioner of housing preservation and development shall evaluate the 2 parcel determined to be distressed and take such action as he or she 3 deems appropriate under the programs, existing at the time of such eval- 4 uation, that are designed to encourage the rehabilitation and preserva- 5 tion of existing housing, and shall monitor or cause to be monitored the 6 status of the property. The commissioner of housing preservation and 7 development shall maintain a register of properties determined to be 8 distressed. 9 § 11-412.2 Council review of conveyance to a third party. The commis- 10 sioner of finance shall, prior to the execution of a deed conveying full 11 and complete title of any parcel of class one or class two real property 12 to a third party pursuant to subdivision c of section 11-412.1 of this 13 chapter, notify the council of the proposed conveyance. Within forty- 14 five days of such notification, the council may act by local law disap- 15 proving the proposed conveyance. In the event the council does not act 16 by local law within such forty-five day period, the council shall be 17 deemed to have approved the proposed conveyance. During such forty-five 18 day period or, if the city council acts by local law pursuant to this 19 section, during the period of time from the notification of the council 20 to the presentation to the mayor of such local law and during any addi- 21 tional period of time prescribed in section 37 of the charter, the 22 eight-month period provided in subdivisions c and i of section 11-412.1 23 of this chapter shall be tolled. 24 § 11-413 Withdrawal of parcels from foreclosure. a. The commissioner 25 of finance may, prior to final judgment, withdraw a parcel from a 26 proceeding under this chapter for any of the following reasons, (1) a 27 question which the commissioner deems meritorious has been raised as to 28 the validity of the tax liens affecting the parcel, (2) the city collec- 29 tor has accepted a payment of all taxes and interest which rendered the 30 parcel subject to foreclosure hereunder because the records in the 31 commissioner's office indicated that the principal amount of such taxes 32 was exceeded by the principal amount of subsequent taxes which would not 33 have rendered the parcel subject to foreclosure hereunder and which had 34 been paid prior to the commencement of said proceeding or (3) in cases 35 where the tax foreclosure action cannot be maintained such as, but not 36 limited thereto, where the charges which rendered a parcel subject to 37 foreclosure hereunder have been cancelled or were paid before the 38 commencement of the foreclosure proceeding but such payment was not 39 reported or did not clear for payment until after the commencement of 40 said proceeding, or where a name and address appearing on an owner's 41 registration card or an in rem card filed pursuant to section 11-416 or 42 11-417 of this chapter and contained in the files of the city collector 43 did not appear in the mailing list used by the commissioner of finance 44 for mailing notices of foreclosure in such proceeding. 45 b. To effectuate such withdrawal the commissioner of finance shall 46 deliver a certificate of withdrawal to the corporation counsel who shall 47 file it in the office of the county clerk in which the list of delin- 48 quent taxes was filed. The filing of such certificate with such county 49 clerk shall effect a discontinuance of the tax foreclosure action as to 50 the affected parcel, and the county clerk shall thereupon note such 51 withdrawal and discontinuance in the copy of the list of delinquent 52 taxes maintained by him or her adjacent to the county clerk's block 53 index of notices of pendency of action and shall cancel and discharge 54 any and all notations of the filing of said list of delinquent taxes as 55 to said parcel that may appear in any other books, records, indices and 56 dockets maintained in said clerk's office.S. 8474 327 1 c. The commissioner of finance shall also deliver a duplicate original 2 certificate of withdrawal to the person entitled to such withdrawal. 3 d. The commissioner of finance shall recite the parcels so withdrawn 4 and the reasons for withdrawal in an affidavit of regularity to be 5 submitted by the commissioner in each action brought pursuant to this 6 chapter. 7 e. The commissioner of finance shall issue a certificate of withdrawal 8 whenever taxes and interest are paid, cancelled, liquidated or otherwise 9 lawfully disposed of as to any parcel which was previously severed 10 pursuant to section 11-409 of this chapter because an answer or liti- 11 gation was pending. 12 § 11-414 Right of redemption not diminished. The period of time in 13 which any owner of, or other person having an interest in a parcel of 14 property may redeem from a sale of a transfer of tax lien is not hereby 15 diminished nor shall such period of time be diminished by the commence- 16 ment of any action brought pursuant to this chapter. 17 § 11-415 Priority of liens. Tax liens shall rank in priority as may 18 now, or as may hereafter, be provided by law. 19 § 11-416 Owner's registration cards; mailing tax bills and notices to 20 registered owners or their designees. a. The commissioner of finance 21 shall maintain a file of owner's registration cards submitted by owners 22 of real property. Each such owner's registration card shall be signed by 23 the owner or a duly authorized representative and shall state the date 24 on which it was filed, the owner's full name and post office address and 25 a description of the premises by reference to the section, block, and 26 lot numbers on the tax map. 27 b. The commissioner of finance shall mail bills for taxes, charges and 28 assessments to all owners who have filed owner's registration cards as 29 herein provided, but the failure of the commissioner of finance so to 30 mail such bill shall not invalidate or otherwise affect the tax, charge 31 or assessment represented thereby nor prevent the accruing of any inter- 32 est or penalty imposed for the non-payment thereof, nor prevent or stay 33 proceedings under this chapter, nor effect the title of the plaintiff or 34 any purchaser under such proceedings. 35 c. The commissioner of finance shall also mail notice of foreclosure 36 and any other process required by this chapter to all owners who have 37 filed owner's registration cards whenever the parcels as to which such 38 cards were filed are included in a list of delinquent taxes filed pursu- 39 ant to this chapter. The failure to receive such notice or process as 40 herein provided shall not affect the validity of any action or proceed- 41 ing brought pursuant to this chapter. 42 d. An owner who files an owner's registration card may also designate 43 thereon the full name and post office address of a mortgagee, lienor or 44 other person to receive bills and notices. Where such designation is 45 made, the commissioner of finance shall not mail any bills and notices 46 to the owner but shall mail all bills and notices to the owner's desig- 47 nee. 48 § 11-417 In rem cards; mailing notices to other interested persons. 49 a. The commissioner of finance shall, in addition to the file maintained 50 by him or her pursuant to section 11-416 of this chapter, maintain a 51 file of in rem cards submitted by any person having an interest in real 52 property who is not entitled to have tax bills mailed to him or her by 53 the commissioner of finance, including mortgagees, lienors, encumbranc- 54 ers and owners who have filed owner's registration cards designating 55 someone else to receive bills and notices. Each such in rem card shall 56 be signed by the person filing such card or a duly authorized represen-S. 8474 328 1 tative, shall contain a description of the premises by reference to the 2 section, block and lot numbers on the tax map and shall state the date 3 on which said card was filed, the full name and post office address of 4 the person filing said card and the nature of the interest said person 5 has in said premises. 6 b. The commissioner of finance shall mail a notice of foreclosure and 7 any other process required by this chapter to each person who has filed 8 an in rem card whenever the parcels to which such cards refer are 9 included in a list of delinquent taxes filed pursuant to this chapter. 10 However, failure to receive such notice or process shall not affect the 11 validity of any proceeding brought pursuant to this chapter. 12 § 11-418 Writ of assistance. The city, after acquiring title to prem- 13 ises under and pursuant to the terms and provisions of this chapter, 14 shall be entitled to a writ of assistance, with the same force and 15 effect as if the city had acquired the property by virtue of a mortgage 16 foreclosure. 17 § 11-419 Consolidation of actions. Actions or proceedings pending in 18 the courts, or otherwise, to cancel a sale of a tax lien on lands a lien 19 upon which is being foreclosed by action under this chapter, shall be 20 terminated upon the institution of a foreclosure action pursuant to this 21 chapter, and the rights and remedies of the parties in interest to such 22 pending actions or proceedings shall be determined by the court in such 23 foreclosure action. 24 § 11-420 Lands held for public use; right of sale. Whenever the city 25 shall become vested with the title to lands by virtue of a foreclosure 26 proceeding brought pursuant to the provisions of this chapter, such 27 lands shall, unless actually used for other than municipal purposes, be 28 deemed to be held by the city for a public use but for a period of not 29 more than three years from the date of the final judgment. The city is 30 hereby authorized to sell and convey such lands in the manner provided 31 by law for the sale and conveyance of other real property held and owned 32 by the city and not otherwise. 33 § 11-421 Certificate of sale as evidence. The transfer of tax lien or 34 any other written instrument representing a tax lien shall be presump- 35 tive evidence in all courts in all proceedings under this chapter by and 36 against the purchaser and his or her representatives, heirs and assigns, 37 of the truth of the statements therein, of the title of the purchaser to 38 the property therein described, and of the regularity and validity of 39 all proceedings had in reference to the taxes, assessments or other 40 legal charges for the nonpayment of which the tax lien was sold and the 41 sale thereof. After two years from the issuance of such certificate or 42 other written instrument, no evidence shall be admissible in any court 43 in a proceeding under this chapter to rebut such presumption unless the 44 holder thereof shall have procured such transfer of tax lien or such 45 other written instrument by fraud or had previous knowledge that it was 46 fraudulently made or procured. 47 § 11-422 Deed in lieu of foreclosure. The city may when authorized by 48 resolution of the successor agency, officer or employee of the former 49 board of estimate and in lieu of prosecuting an action to foreclose a 50 tax lien on any parcel pursuant to this chapter accept a conveyance of 51 the interest of any person having any right, title, interest, claim, 52 lien or equity of redemption in or to such parcel. 53 § 11-423 Sales and foreclosures of tax liens. Notwithstanding any of 54 the provisions of this chapter the city may continue to sell tax liens, 55 transfer the same to purchasers and become the purchaser at such sales 56 of tax liens in the manner provided by this title.S. 8474 329 1 § 11-424 Application to the city for release of property acquired by 2 in rem tax foreclosure. a. (1) The city's interest in property acquired 3 by in rem tax foreclosure may be released pursuant to this section on 4 the application of any party who had an interest in said property as 5 either owner, mortgagee, lienor or encumbrancer at the time of the 6 city's acquisition thereof where such application is made at any time up 7 to two years from the date on which the deed by which the city acquired 8 title to said property was recorded. 9 (2) Notwithstanding any inconsistent provision of paragraph one of 10 this subdivision to the contrary, the city's interest in property 11 acquired by in rem tax foreclosure may be released pursuant to this 12 section upon application of any party who had an interest in said prop- 13 erty as either owner, mortgagee, lienor or encumbrancer at the time of 14 the city's acquisition thereof where such application is made more than 15 two years after the date on which the deed by which the city acquired 16 title to said property was recorded provided such application is author- 17 ized by the council as hereinafter provided. An application for such 18 release and the documents required by subdivision c of this section in 19 support thereof shall be filed with the department of citywide adminis- 20 trative services in the manner provided in subdivision b of this 21 section. The department of citywide administrative services shall give 22 the council written notice of the receipt of each such filing. After 23 review and approval of the application by the corporation counsel as to 24 form and eligibility of the applicant, the department of citywide admin- 25 istrative services shall send a copy of such application to the in rem 26 foreclosure release board and to the council. Upon receipt of such 27 application, the in rem foreclosure release board shall take no further 28 action on such application unless the council adopts a resolution within 29 one hundred twenty days following the first stated meeting of the coun- 30 cil after receipt of such application authorizing the board to consider 31 such application. If the council fails to adopt a resolution within such 32 one hundred twenty-day period, the council shall be deemed to have 33 denied its authorization for the board to consider such application. A 34 resolution of the council pursuant to this paragraph shall describe the 35 property for which release is sought by borough, tax map, block and lot 36 number and shall specify that release of the city's interest in such 37 property is subject to the approval of the in rem foreclosure release 38 board and to all the conditions and restrictions set forth in this 39 section. 40 b. 1. Any such application shall be made in writing to the commission- 41 er of citywide administrative services and shall be verified. It shall 42 contain the name and address of the applicant and shall state the date 43 on which and the in rem action by which the city acquired title to the 44 property sought to be released. It shall also contain a statement speci- 45 fying the nature of the applicant's interest in the property and a full 46 description of the instrument from which the applicant's interest 47 derives including the date of execution, the date and place of the 48 recording or entry of said instrument and the parties thereto. In the 49 event the applicant's interest arises by reason of the death of a prior 50 owner, mortgagee, lienor or encumbrancer, then the application shall 51 also state the applicant's relationship to said decedent and shall 52 include whatever additional information may be necessary to prove the 53 applicant's right to make such application. 54 2. A fee of two hundred seventy-five dollars shall be paid on the 55 submission of any such application which is subject to the provisions of 56 subdivision f of this section, except that the fee for any such applica-S. 8474 330 1 tion for the release of property improved by a one or two-family dwell- 2 ing shall be one hundred dollars. 3 3. A fee of five hundred fifty dollars shall be paid on the submission 4 of any such application which is subject to the provisions of subdivi- 5 sion g of this section, except that the fee for any such application for 6 the release of property improved by a one or two-family dwelling shall 7 be one hundred dollars. 8 4. A fee of two hundred seventy-five dollars shall be paid on the 9 submission of any such application which is subject to the provisions of 10 subdivision h of this section within four months from the date on which 11 the deed by which the city acquired title to the subject property was 12 recorded, and a fee of five hundred and fifty dollars shall be paid on 13 the submission of any such application which is subject to the 14 provisions of such subdivision not within four months from such date; 15 except that the fee for any such application which is subject to the 16 provisions of such subdivision for the release of property improved by a 17 one or two-family dwelling shall be one hundred dollars. 18 5. The fees payable pursuant to paragraphs two, three and four of this 19 subdivision shall not be refundable. 20 6. In addition to the fees specified in paragraphs two, three and four 21 of this subdivision, there shall be paid on the submission of any appli- 22 cation which is subject to this section an amount at least equal to the 23 lesser of nine hundred dollars or the sum specified in paragraph one of 24 subdivision d of this section, which amount shall not be refundable, but 25 shall be applied in reduction of the sum specified in paragraph one of 26 subdivision d of this section; provided, however, that if a release 27 requires the authorization of the in rem foreclosure release board, and 28 such authorization is not given, such additional amount shall be 29 refunded to the applicant. 30 c. Each application shall be supported by the certified search of the 31 city register or by an official letter, certificate or certified search 32 of any title insurance or abstract company, organized and doing business 33 under the laws of this state. Such supporting instruments shall recite 34 the recording data both as to the deed by which the city acquired title 35 to the parcel sought to be released and the instrument from which the 36 applicant's interest derives. In the event the applicant's interest does 37 not appear of record but is derived by the death of an owner, mortgagee, 38 lienor or encumbrancer of record, then the application shall also be 39 supported by the affidavit of the applicant or other person having 40 information thereof, or by the duly written certificate or certification 41 of the county clerk or the clerk of any surrogate's or other court of 42 record, or by any other instrument or document required by the corpo- 43 ration counsel to substantiate the applicant's right to file such appli- 44 cation in compliance with the provisions of this section. 45 d. The city's interest shall be released only after payment, as to 46 each parcel to be released, of the following sums of money: 47 1. The principal amount due on all unpaid taxes, assessments, water 48 charges and sewer rents appearing on the list of delinquent taxes and 49 accruing thereafter together with interest at the rate or rates provided 50 by law. 51 2. Five percent of the amount paid pursuant to the preceding paragraph 52 but not exceeding one thousand dollars for each parcel. 53 3. Any deficiency which may result to the city after all payments made 54 by it for the repair, maintenance, and operation of the lands, real 55 estate or real property shall have been charged or debited in the appro- 56 priate accounts of the city and all rents, license fees and other moneysS. 8474 331 1 collected by the city as a result of its operation of the said lands, 2 real estate or real property shall have been credited in such accounts. 3 Any contract for repair, maintenance, management or operation made by 4 the city on which it shall be liable, although payment thereon shall not 5 have been made, shall be deemed a charge or debit to such accounts as 6 though payment had been made. The amounts paid and collected by the city 7 as shown in its accounts and the necessity for making the several 8 payments and contracts to be charged as herein provided shall be conclu- 9 sive upon the applicant. Where a deficiency under this subdivision shall 10 be created or increased by the failure of the city to collect rents, 11 license fees or other moneys to which the city may have been entitled, 12 the right to collect or to bring action for the same shall be assigned, 13 transferred and set over to the applicant by an instrument in writing. 14 4. Any and all costs and disbursements which shall have been awarded 15 to the city or to which it may have become entitled by operation of law 16 or which it may have paid or become liable for payment in connection 17 with any litigation between it and the applicant or any person having an 18 estate or interest in the lands, real estate or real property to be 19 released resulting directly or indirectly from the foreclosure by action 20 in rem of the delinquent taxes affecting said lands, real estate or real 21 property. 22 5. A reasonable monthly fee to be determined by the city, through the 23 department of citywide administrative services, for management services 24 and operations of the lands, real estate or real property by the city 25 prior to the release of said lands, real estate or property. 26 6. The city, through the department of citywide administrative 27 services, shall also require as additional consideration for such 28 release, the payment of all arrears on mortgages held by the city and 29 all liens accruing to it by operation of law including but not limited 30 to relocation and emergency repair liens. 31 e. The corporation counsel shall effect the release of the city's 32 interest in property acquired by in rem tax foreclosure, as provided for 33 in this section, by preparing and causing to be entered an order discon- 34 tinuing the in rem tax foreclosure action as to said property, cancel- 35 ling the notice of pendency of such action as to said property and 36 vacating and setting aside the in rem judgment of foreclosure and the 37 deed executed and recorded pursuant to such judgment of foreclosure as 38 to said property. The entry of such order shall restore all parties, 39 including owners, mortgagees and any and all lienors, receivers and 40 administrators and encumbrancers, to the status they held at the time 41 the city acquired title to said property, as if the in rem tax foreclo- 42 sure had never taken place, and shall render said property liable for 43 all taxes, deficiencies, management fees and liens which shall accrue 44 subsequent to those paid in order to obtain the release provided for in 45 this section, or which were, for whatever reason, omitted from the 46 payment made to obtain said release. 47 f. If an application pursuant to this section, and the documents 48 required by subdivision c of this section in support thereof, are filed 49 within four months after the date of the city's acquisition of the 50 subject property, said application shall be granted providing the corpo- 51 ration counsel approves the application as to form, timeliness and 52 eligibility of the applicant and providing the applicant has paid all 53 amounts required to be paid by subdivision d of this section within 54 thirty days of the date on which a letter requesting applicant to make 55 such payment is mailed or delivered to the applicant. The city shall not 56 sell or assign any property acquired by in rem tax foreclosure withinS. 8474 332 1 four months of said acquisition but this provision shall not prevent the 2 city from authorizing condemnation of such property or vesting title 3 thereto in a condemnation proceeding during said four month period. In 4 the event an application pursuant to this section is filed within four 5 months of the city's acquisition by in rem tax foreclosure and title to 6 the subject property vests in condemnation before the city's interest 7 therein has been released by the vacate order provided for herein, the 8 applicant shall be entitled to the condemnation award for such property 9 without the entry of such vacate order, providing the corporation coun- 10 sel has approved the application as aforesaid and providing that the 11 amounts specified in subdivision d of this section, if not previously 12 paid, are deducted from said condemnation award, with taxes apportioned 13 to the date of the condemnation title vesting. 14 g. If an application for a release of the city's interest in property 15 acquired by in rem tax foreclosure, and the documents required by subdi- 16 vision c of this section in support thereof, have been filed within the 17 time allowed in paragraph one of subdivision a of this section, but more 18 than four months after the date of the city's acquisition or if an 19 application for such release has been authorized by a resolution of the 20 council pursuant to paragraph two of subdivision a of this section and 21 such application and the documents required by subdivision c of this 22 section in support thereof have been filed, the in rem foreclosure 23 release board may, in its discretion, authorize the release of the 24 city's interest in said property pursuant to this section, provided that 25 the application has been approved by the corporation counsel as to form, 26 timeliness and eligibility of the applicant and provided that the city 27 has not sold or otherwise disposed of said property and provided, 28 further, that said property has not been condemned or assigned to any 29 agency of the city and is not the subject of contemplated use for any 30 capital or urban renewal project of the city. The corporation counsel 31 shall effect such discretionary release only where the applicant, after 32 the board's authorization of the release, has paid all the amounts 33 required to be paid by subdivision d of this section within thirty days 34 of the date on which a letter requesting the applicant to make such 35 payment is mailed or delivered to the applicant. The in rem foreclosure 36 release board may also, in its discretion, authorize a release of the 37 city's interest in such property, pursuant to the above provisions, 38 whenever an application for such release, approved as to form, timeli- 39 ness and eligibility by the corporation counsel, has been filed at any 40 time during the period allowed in subdivision a of this section in which 41 the applicant has requested an installment agreement of the commissioner 42 of citywide administrative services for the payment of the amounts 43 required to be paid by subdivision d of this section provided that said 44 commissioner has approved such request. The commissioner of citywide 45 administrative services shall not approve any such request unless the 46 applicant shall have given notice by certified mail to each tenant 47 located on the parcel, of the request and shall have given such commis- 48 sioner an affidavit stating that such notice has been provided, within 49 thirty days after the request. Any false statement in such affidavit 50 shall not in any way affect the validity of the agreement, be grounds 51 for its cancellation or in any way affect the release of the city's 52 interest in the parcel. Such agreement shall require, in addition to 53 full payment of the amounts due under paragraphs two, three, four, five 54 and six of subdivision d of this section, a first installment of fifty 55 percent of the amount due under paragraph one of said subdivision d with 56 the balance of said amount to be paid in four equal quarterly install-S. 8474 333 1 ments together with all current taxes, assessments or other legal charg- 2 es that accrue during such period; provided, however, that: (i) whenever 3 a request for an installment agreement is made of the commissioner of 4 citywide administrative services by a company organized pursuant to 5 article eleven of the private housing finance law with the consent and 6 approval of the department of housing preservation and development or 7 for a parcel which is an owner-occupied residential building of not more 8 than five residential units, the commissioner of citywide administrative 9 services may, as to that portion of the amounts due under paragraph one 10 of subdivision d of this section which became due prior to the acquisi- 11 tion by the article eleven company of its interest in the property and 12 as to the amount due under paragraph one of subdivision d of this 13 section in the case of such an owner-occupied building, approve a 14 reduction of such first installment to an amount not less than ten 15 percent of the amount due under paragraph one of subdivision d of this 16 section and an increase in the number of the following equal quarterly 17 installments to a number which shall be equal to three times the number 18 of unpaid quarters of real estate taxes or the equivalent thereof but 19 which shall in no event exceed forty-eight, and (ii) notwithstanding 20 clause (i) of this paragraph, whenever an installment agreement is 21 requested on or after the date on which this clause takes effect with 22 respect to a parcel that, immediately prior to the city's acquisition 23 thereof by in rem tax foreclosure, was owned by a company organized 24 pursuant to article eleven of the state private housing finance law with 25 the consent and approval of the department of housing preservation and 26 development, or with respect to a parcel that is a residential building 27 containing not more than five residential units, a residential condomin- 28 ium unit or a residential building held in a cooperative form of owner- 29 ship, the commissioner of general services may, as to the amount due 30 under paragraph one of subdivision d of this section, approve an 31 installment agreement containing the terms relating to the required 32 percentage payment for the first installment and the required number of 33 subsequent quarterly installments, that would be applicable to such 34 parcel under paragraph two (but without regard to any reference therein 35 to paragraph three) of subdivision i of section 11-409 of this chapter. 36 For purposes of calculating the number of such following equal quarterly 37 installments, unpaid real estate taxes or the equivalent which are, on 38 and after July first, nineteen hundred eighty-two, due and payable on an 39 other than quarterly basis shall be deemed to be payable on a quarterly 40 basis. Where the in rem foreclosure release board denies an application 41 requesting an installment agreement the board shall authorize a release 42 of the city's interest, provided that the applicant thereafter pays all 43 the amounts required to be paid by subdivision d of this section within 44 thirty days of the date on which a letter requesting such payment is 45 mailed or delivered to the applicant only when said application and the 46 documents required by subdivision c of this section in support thereof 47 were filed within thirty days of the date of the city's acquisition of 48 the property sought to be released. Where the in rem foreclosure 49 release board denies an application requesting an installment agreement 50 which was filed more than thirty days after the date of the city's 51 acquisition, the board may, in its discretion, authorize a release of 52 the city's interest, provided that the applicant thereafter pays all the 53 amounts required to be paid by subdivision d of this section within 54 thirty days of the date on which a letter requesting such payment is 55 mailed or delivered to the applicant. Where the in rem foreclosure 56 release board approves an application requesting an installment agree-S. 8474 334 1 ment, the order releasing the city's interest shall provide that in the 2 event of any default as to the payment of either quarterly installments 3 or current taxes, assessments or other legal charges during the term of 4 such agreement, as set forth in the board's resolution, all payments 5 made under said agreement shall be forfeited and the city shall be enti- 6 tled to reacquire the property so released. The corporation counsel 7 shall effect such reacquisition by causing to be entered as to such 8 property a supplemental judgment of foreclosure in the in rem action by 9 which said property was originally acquired immediately on notification 10 by the commissioner of finance of such default. 11 h. An owner of property entitled to an exemption under any of the 12 provisions of article four of the real property tax law during all or 13 part of the period covered by the tax items appearing on a list of 14 delinquent taxes may apply for a release of the city's interest in such 15 exempt property under the provisions of this section during the periods 16 of time set forth herein and for an additional period up to ten years 17 from the date of the city's acquisition of said property by in rem fore- 18 closure. The application of such owner shall contain, in addition to the 19 statements, searches and proofs required by this section, a statement 20 that an exemption under the real property tax law is being claimed. Such 21 application shall also state either that it is accompanied by the writ- 22 ten certificate of the comptroller setting forth the precise period 23 during which said property, while owned by such applicant, and during 24 the period after the city's acquisition up to the date of the certif- 25 icate if said property was still being used for an exempt purpose after 26 said acquisition, was entitled to an exemption and the exact nature and 27 extent of such exemption or that an application for such written certif- 28 icate has been filed with the comptroller. On issuing such written 29 certificate, the comptroller shall cancel those tax items which have 30 accrued during the period covered by the certificate to the extent the 31 applicant is entitled to an exemption as set forth in the certificate. 32 Where an application by an exempt owner is filed more than four months 33 after the date of the city's acquisition of the subject property, a 34 release of the city's interest may be issued only at the discretion of 35 the in rem foreclosure release board and subject to all the restrictions 36 set forth in subdivision g of this section. A release to an exempt 37 applicant shall be effected only after said applicant has paid all the 38 amounts required to be paid by subdivision d of this section, except for 39 those tax items which have been cancelled, in whole or in part, pursuant 40 to the comptroller's certificate, within thirty days of the date on 41 which a letter requesting payment is mailed or delivered to the appli- 42 cant. 43 i. The corporation counsel shall also effect the release of the city's 44 interest in property acquired by in rem foreclosure, as provided for in 45 this action, whenever the commissioner of finance shall accept as to any 46 parcel so acquired, the payment provided for in paragraph two of subdi- 47 vision a of section 11-413 of this chapter. Said commissioner may accept 48 such payment at any time within four months of the date of the city's 49 acquisition and may further, subject to the approval of the in rem fore- 50 closure release board, accept such payment at any time more than four 51 months after the date of the city's acquisition but less than two years 52 from the date on which the city's deed was recorded providing said prop- 53 erty has not been sold or otherwise disposed of nor condemned or 54 assigned to any agency of the city and is not the subject of contem- 55 plated use of any capital or urban renewal project of the city.S. 8474 335 1 § 11-424.1 In rem foreclosure release board. There shall be an in rem 2 foreclosure release board consisting of the mayor, the speaker of the 3 city council, the borough president, the corporation counsel and the 4 commissioner of finance. Members of the board may, by written authority 5 filed with the board and with the city clerk, appoint delegates to act 6 on their behalf as members of the board. The board shall have the power, 7 acting by resolution, to authorize the release of the city's interest in 8 property acquired by in rem tax foreclosure in accordance with sections 9 11-412.1 and 11-424 of the code based upon a determination, in its 10 discretion, that such release would be in the best interests of the 11 city. The board shall act after a meeting at which the public has been 12 provided an opportunity to comment on the proposed action. A resolution 13 of the board authorizing a release of the city's interest in any proper- 14 ty shall be adopted only upon the affirmative vote of not less than a 15 majority of all the members of the board. The board may consider any 16 information it deems relevant to a determination. The board shall not be 17 required to state the reasons for its determination. 18 § 11-425 Agreements for payment of delinquent taxes and charges in 19 installments. a. During the period beginning on May ninth, nineteen 20 hundred seventy-seven and ending on June thirtieth, nineteen hundred 21 seventy-seven, the commissioner of finance or, when so specified herein- 22 after, the commissioner of general services, shall be authorized and 23 empowered to make and execute agreements in the circumstances and 24 subject to the terms, conditions and limitations set forth in this 25 section; provided, however, that if the commissioner of finance or, 26 where applicable, the commissioner of general services determines in his 27 or her sole discretion that good cause exists, he or she may make and 28 execute such agreements during an additional period ending not later 29 than July thirty-first, nineteen hundred seventy-seven. 30 b. (1) Whenever it shall appear that a tax lien on a parcel has been 31 due and unpaid for a period of at least six months from the date on 32 which the tax, assessment or other legal charge represented thereby 33 became a lien, the commissioner of finance may enter into an agreement 34 with the owner of such parcel or other person claiming to have an inter- 35 est therein providing for the payment of such delinquent taxes, assess- 36 ments or other legal charges and interest and penalties in installments, 37 the first of which shall be equal to at least fifteen percent of such 38 arrears and shall be payable upon the execution of such agreement. Each 39 remaining installment shall be equal to at least an amount produced by 40 dividing the balance of such arrears by a factor determined by multiply- 41 ing the number of quarters of such arrears by two hundred percent; 42 provided, however, in no event shall such factor be in excess of thir- 43 ty-two. Each such remaining installment shall be payable quarterly on 44 the first of July, October, January and April. 45 (2) If an agreement authorized by paragraph one of this subdivision is 46 executed prior to the time the commissioner of finance files in the 47 office of the county clerk a list of delinquent taxes covering the city 48 or portion of the city in which the subject parcel is located, such 49 parcel shall be excluded from such list of delinquent taxes, provided, 50 at the time such list is filed, there is no default in the agreement and 51 all current taxes, assessments or other legal charges have been paid as 52 they became due or within the period of grace provided by law. In the 53 event of any default in the agreement or any failure to make timely 54 payment of any current item, the parcel shall, if then delinquent for 55 the applicable period specified in section 11-404 of this chapter, be 56 eligible for inclusion in any list of delinquent taxes thereafter filed.S. 8474 336 1 (3) If an in rem foreclosure action has been commenced against any 2 parcel prior to May ninth, nineteen hundred seventy-seven, the commis- 3 sioner of finance may, notwithstanding the provisions of paragraph three 4 of subdivision a of section 11-413 of this chapter, enter into an agree- 5 ment authorized and described in the foregoing provisions of this 6 section with respect to such parcel. However, if such an agreement is 7 entered into subsequent to the last date for redemption specified in 8 subdivision a of section 11-407 of this chapter, there shall be paid to 9 the commissioner of finance at the time said agreement is executed an 10 amount equal to the penalty which would have been payable under subdivi- 11 sion c of section 11-407 of this chapter had the person executing the 12 agreement made a late redemption payment. Such amount shall be in addi- 13 tion to any installment payments required to be made under the agreement 14 and shall not be credited against any such installment payments. Any 15 parcel which is the subject of an agreement made pursuant to this para- 16 graph may, prior to final judgment, be withdrawn from the action, 17 provided there has been no default in the agreement, and provided 18 further that all current taxes, assessments or other legal charges are 19 paid when they become due or within the period of grace provided by law. 20 Such withdrawal shall be effected by the commissioner of finance in the 21 manner provided in section 11-413 of this chapter. 22 (4) Any person who, prior to May ninth, nineteen hundred seventy-sev- 23 en, has made, executed and filed with the commissioner of finance an 24 agreement pursuant to the provisions of paragraph three of subdivision a 25 of section 11-413 of this chapter, shall be permitted to make applica- 26 tion to the commissioner of finance for the purpose of having such 27 agreement cancelled and a new agreement executed as hereinabove 28 provided. 29 If an agreement executed prior to May ninth, nineteen hundred seven- 30 ty-seven is not cancelled as herein provided, any installments due and 31 payable under such agreement on or after July first, nineteen hundred 32 seventy-seven shall be subject to interest at the rate specified in 33 paragraph five of this subdivision, but only if, as of July first, nine- 34 teen hundred seventy-seven, there is no default in the agreement and all 35 current taxes, assessments or other legal charges have been paid within 36 the time allowed by law. Such rate of interest shall be calculated in 37 the manner and shall be subject to all the conditions provided in said 38 paragraph five. 39 (5) When an agreement has been entered into pursuant to this subdivi- 40 sion, the commissioner of finance shall, notwithstanding the rates of 41 interest prescribed in section 11-224, 11-312 or 11-313 of this title, 42 charge, collect and receive interest on the arrears due and payable 43 under such agreement, to be calculated at the rate of seven percent per 44 annum from July first, nineteen hundred seventy-seven to the date of 45 payment of each installment. Any interest accrued or accruing prior to 46 July first, nineteen hundred seventy-seven shall not be affected by the 47 provisions of this paragraph, but shall be charged, collected and 48 received in the manner and at the rates specified in section 11-224, 49 11-312 or 11-313 of this title. The seven percent rate of interest spec- 50 ified in this paragraph shall be applicable only if (i) there is no 51 default in the agreement entered into as provided in this section, and 52 (ii) all current taxes, assessments or other legal charges are paid as 53 they become due or within the period of grace provided by law. In the 54 event of any default or failure to make timely payment of any current 55 item, the seven percent rate of interest specified in this paragraph 56 shall thereupon cease to be applicable and the commissioner of financeS. 8474 337 1 shall thereafter charge, collect and receive interest in the manner and 2 at the rates otherwise specified in this title. 3 (6) In addition to the terms and conditions required by the preceding 4 paragraphs of this subdivision to be included in agreements authorized 5 by this section, the commissioner of finance may in his or her 6 discretion include in such agreements such additional terms and condi- 7 tions, not inconsistent with this section, as he or she determines to be 8 necessary in order to properly carry out the provisions of this section. 9 The commissioner may also adopt such rules and regulations as may be 10 necessary to carry out the provisions of this section. 11 c. (1) If, pursuant to the provisions of section 11-424 of this chap- 12 ter, an application for the release of property acquired by the city 13 through in rem tax foreclosure is made within the four-month period 14 specified in subdivision f of section 11-424 of this chapter, and 15 provided such application is made during the period specified in subdi- 16 vision a of this section, the provisions of this subdivision shall, at 17 the election of the applicant, apply with respect to such application 18 and the release sought thereby. 19 (2) At the time of filing the application for release, an applicant 20 who elects to have the provisions of this subdivision apply to him or 21 her, shall pay to the city the amounts specified in paragraphs two, 22 three and four of subdivision d of section 11-424 of this chapter, for 23 this purpose, the amount specified in paragraph two thereof shall be 24 deemed to be the amount which would have been required to be paid there- 25 under had this section not been in effect. Concurrent with the making of 26 such payment, the applicant shall enter into an agreement with the 27 commissioner of general services providing for the payment of all 28 current taxes, assessments or other legal charges on the property as 29 they become due or within the grace period provided by law, and, in 30 addition, providing for the payment of the amount specified in paragraph 31 one of subdivision d of section 11-424 of this chapter in installments, 32 the first of which shall be equal to at least twenty-five percent of 33 such amount and shall be payable upon the execution of such agreement. 34 The balance of such amount shall be payable in twelve equal quarterly 35 installments, each of which shall be paid quarterly on the first of 36 July, October, January and April. 37 (3) Pending approval by the corporation counsel of an application for 38 release as to form, timeliness and eligibility of the applicant, all 39 payments made pursuant to the preceding paragraph shall be held in 40 escrow; in the event the corporation counsel disapproves the applica- 41 tion, such payments shall be returned to the applicant, and the agree- 42 ment executed by the applicant shall thereupon be cancelled. 43 (4) In the case of any agreement made and executed pursuant to para- 44 graph two hereof, interest on any installment due and payable thereunder 45 shall, notwithstanding the rates of interest prescribed in section 46 11-224, 11-312 or 11-313 of this title, be charged, collected and 47 received at the rate of seven percent per annum from July first, nine- 48 teen hundred seventy-seven to the date of payment of each installment. 49 Any interest accrued or accruing prior to July first, nineteen hundred 50 seventy-seven shall not be affected by the provisions of this paragraph, 51 but shall be charged, collected and received in the manner and at the 52 rates specified in section 11-224, 11-312 or 11-313 of this title. The 53 seven percent rate of interest specified in this paragraph shall be 54 applicable only if (i) there is no default in the agreement entered into 55 as provided in this subdivision, and (ii) all current taxes, assessmentsS. 8474 338 1 or other legal charges are paid as they become due or within the period 2 of grace provided by law. 3 (5) No release for which application has been made pursuant to this 4 subdivision shall be granted until the final payment under the agreement 5 herein provided is received by the city. Upon receipt of such final 6 payment by the city the corporation counsel shall effect the release in 7 the manner provided in section 11-424 of this chapter. In the event of 8 any default in an agreement executed as provided in this subdivision or 9 any failure to pay current taxes, assessments or other legal charges as 10 they become due or within the grace period provided by law, such agree- 11 ment shall thereupon become void, the release process shall be termi- 12 nated, and all payments theretofore made shall be forfeited to the city. 13 (6) In addition to the terms and conditions required by the preceding 14 paragraphs of this subdivision to be included in agreements authorized 15 thereby, the commissioner of general services may in his or her 16 discretion include in such agreements such additional terms and condi- 17 tions, not inconsistent with this subdivision, as the commissioner 18 determines to be necessary in order to properly carry out the provisions 19 hereof. The commissioner of general services may also adopt such rules 20 and regulations as may be necessary to carry out the provisions of this 21 subdivision. 22 § 11-426 Agreements for payment of delinquent taxes and charges in 23 installments. a. During the period beginning on December second, nine- 24 teen hundred seventy-seven and ending on March thirty-first, nineteen 25 hundred seventy-eight, the commissioner of finance, or, when so speci- 26 fied hereinafter, the commissioner of general services, shall be author- 27 ized and empowered to make and execute agreements in the circumstances 28 and subject to the terms, conditions and limitations set forth in this 29 section. 30 b. (1) Whenever it shall appear that a tax lien on a parcel has been 31 due and unpaid for a period of at least six months from the date on 32 which the tax, assessment or other legal charge represented thereby 33 became a lien, the commissioner of finance may enter into an agreement 34 with the owner of such parcel or other person claiming to have an inter- 35 est therein providing for the payment of such delinquent taxes, assess- 36 ments or other legal charges and interest and penalties in installments, 37 the first of which shall be equal to at least fifteen percent of such 38 arrears and shall be payable upon the execution of such agreement. Each 39 remaining installment shall be equal to at least an amount produced by 40 dividing the balance of such arrears by a factor determined by multiply- 41 ing the number of quarters of such arrears by two hundred percent. In no 42 event, however, shall the factor referred to in the preceding sentence 43 be in excess of thirty-two. Each such remaining installment shall be 44 payable quarterly on the first of July, October, January and April. 45 (2) If an agreement authorized by paragraph one of this subdivision is 46 executed prior to the time the commissioner of finance files in the 47 office of the county clerk a list of delinquent taxes covering the city 48 or portion of the city in which the subject parcel is located, such 49 parcel shall be excluded from such list of delinquent taxes, provided, 50 at the time such list is filed, there is no default in the agreement and 51 all current taxes, assessments or other legal charges have been paid as 52 they became due or within the period of grace provided by law. In the 53 event of any default in the agreement or any failure to make timely 54 payment of any current item, the parcel shall, if then delinquent for 55 the applicable period specified in section 11-404 of this chapter, be 56 eligible for inclusion in any list of delinquent taxes thereafter filed.S. 8474 339 1 (3) If an in rem foreclosure action has been commenced against any 2 parcel prior to December second, nineteen hundred seventy-seven, the 3 commissioner of finance may, notwithstanding the provisions of paragraph 4 three of subdivision a of section 11-413 of this chapter, enter into an 5 agreement authorized and described in the foregoing provisions of this 6 section with respect to such parcel. However, if such an agreement is 7 entered into subsequent to the last date for redemption specified in 8 subdivision a of section 11-407 of this chapter, there shall be paid to 9 the commissioner of finance at the time said agreement is executed an 10 amount equal to the penalty which would have been payable under subdivi- 11 sion c of section 11-407 of this chapter had the person executing the 12 agreement made a late redemption payment. Such amount shall be in addi- 13 tion to any installment payments required to be made under the agreement 14 and shall not be credited against any such installment payments. Any 15 parcel which is the subject of an agreement made pursuant to this para- 16 graph may, prior to final judgment, be withdrawn from the action, 17 provided there has been no default in the agreement, and provided 18 further that all current taxes, assessments or other legal charges are 19 paid when they become due or within the period of grace provided by law. 20 Such withdrawal shall be effected by the commissioner of finance in the 21 manner provided in section 11-413 of this chapter. 22 (4) Any person who, prior to December second, nineteen hundred seven- 23 ty-seven, has made, executed and filed with the commissioner of finance 24 an agreement pursuant to the provisions of paragraph three of subdivi- 25 sion a of section 11-413 of this chapter, shall be permitted to make 26 application to the commissioner of finance for the purpose of having 27 such agreement cancelled and a new agreement executed as hereinabove 28 provided. 29 If an agreement executed prior to December second, nineteen hundred 30 seventy-seven is not cancelled as herein provided, any installments due 31 and payable under such agreement on or after April first, nineteen 32 hundred seventy-eight shall be subject to interest at the rate specified 33 in paragraph five of this subdivision, but only if, as of April first, 34 nineteen hundred seventy-eight, there is no default in the agreement and 35 all current taxes, assessments or other legal charges have been paid 36 within the time allowed by law. Such rate of interest shall be calcu- 37 lated in the manner and shall be subject to all the conditions provided 38 in said paragraph five. 39 (5) When an agreement has been entered into pursuant to this subdivi- 40 sion, the commissioner of finance shall, notwithstanding the rates of 41 interest prescribed in section 11-224, 11-312 or 11-313 of this title, 42 charge, collect and receive interest on the arrears due and payable 43 under such agreement to be calculated at the rate of seven percent per 44 annum from April first, nineteen hundred seventy-eight to the date of 45 payment of each installment. Any interest accrued or accruing prior to 46 April first, nineteen hundred seventy-eight shall not be affected by the 47 provisions of this paragraph, but shall be charged, collected and 48 received in the manner and at the rates specified in section 11-224, 49 11-312 or 11-313 of this title. The seven percent rate of interest spec- 50 ified in this paragraph shall be applicable only if (i) there is no 51 default in the agreement entered into as provided in this section, and 52 (ii) all current taxes, assessments or other legal charges are paid as 53 they become due or within the period of grace provided by law. In the 54 event of any default or failure to make timely payment of any current 55 item, the seven percent rate of interest specified in this paragraph 56 shall thereupon cease to be applicable and the commissioner of financeS. 8474 340 1 shall thereafter charge, collect and receive interest in the manner and 2 at the rates otherwise specified in this title. 3 (6) In addition to the terms and conditions required by this subdivi- 4 sion to be included in agreements authorized by this section, the 5 commissioner of finance may, in his or her discretion, include in such 6 agreements such additional terms and conditions, not inconsistent with 7 this section, as such commissioner determines to be necessary in order 8 to properly carry out the provisions of this section. The commissioner 9 of finance may also adopt such rules and regulations as may be necessary 10 to carry out the provisions of this section. 11 c. (1) If, pursuant to the provisions of section 11-424 of this chap- 12 ter, an application for the release of property acquired by the city 13 through in rem tax foreclosure is made within the four-month period 14 specified in subdivision f of section 11-424 of this chapter, and 15 provided such application is made during the period specified in subdi- 16 vision a of this section, the following provisions of this subdivision 17 shall, at the election of the applicant, apply with respect to such 18 application and the release sought thereby. 19 (2) At the time of filing the application for release, an applicant 20 who elects to have the provisions of this subdivision apply to him or 21 her, shall pay to the city the amounts specified in paragraphs two, 22 three and four of subdivision d of section 11-424 of this chapter, for 23 this purpose, the amount specified in such paragraph two shall be deemed 24 to be the amount which would have been required to be paid thereunder 25 had this section not been in effect. Concurrent with the making of such 26 payment, the applicant shall enter into an agreement with the commis- 27 sioner of general services providing for the payment of all current 28 taxes, assessments or other legal charges on the property as they become 29 due or within the grace period provided by law, and, in addition, 30 providing for the payment of the amount specified in paragraph one of 31 subdivision d of section 11-424 of this chapter in installments, the 32 first of which shall be equal to at least twenty-five percent of such 33 amount and shall be payable upon the execution of such agreement. The 34 balance of such amount shall be payable in twelve equal quarterly 35 installments, each of which shall be paid quarterly on the first of 36 July, October, January and April. 37 (3) Pending approval by the corporation counsel of an application for 38 release as to form, timeliness and eligibility of the applicant, all 39 payments made pursuant to the preceding paragraph shall be held in 40 escrow; in the event the corporation counsel disapproves the applica- 41 tion, such payments shall be returned to the applicant, and the agree- 42 ment executed by him or her shall thereupon be cancelled. 43 (4) In the case of any agreement made and executed pursuant to such 44 paragraph two, interest on any installment due and payable thereunder 45 shall, notwithstanding the rates of interest prescribed in section 46 11-224, 11-312 or 11-313 of this title, be charged, collected and 47 received at the rate of seven percent per annum from April first, nine- 48 teen hundred seventy-eight to the date of payment of each installment. 49 Any interest accrued or accruing prior to April first, nineteen hundred 50 seventy-eight shall not be affected by the provisions of this paragraph, 51 but shall be charged, collected and received in the manner and at the 52 rates specified in section 11-224, 11-312 or 11-313 of this title. The 53 seven percent rate of interest specified in this paragraph shall be 54 applicable only if (i) there is no default in the agreement entered into 55 as provided in this subdivision, and (ii) all current taxes, assessmentsS. 8474 341 1 or other legal charges are paid as they become due or within the period 2 of grace provided by law. 3 (5) No release for which application has been made pursuant to this 4 subdivision shall be granted until the final payment under the agreement 5 herein provided is received by the city. Upon receipt of such final 6 payment by the city the corporation counsel shall effect the release in 7 the manner provided in section 11-424 of this chapter. In the event of 8 any default in an agreement executed as provided in this subdivision or 9 any failure to pay current taxes, assessments or other legal charges as 10 they become due or within the grace period provided by law, such agree- 11 ment shall thereupon become void, the release process shall be termi- 12 nated, and all payments theretofore made shall be forfeited to the city. 13 (6) In addition to the terms and conditions required by this subdivi- 14 sion to be included in agreements authorized thereby, the commissioner 15 of general services may, in his or her discretion, include in such 16 agreements such additional terms and conditions, not inconsistent with 17 this subdivision, as the commissioner determines to be necessary in 18 order to properly carry out the provisions hereof. The commissioner of 19 general services may also adopt such rules and regulations as may be 20 necessary to carry out the provisions of this subdivision. 21 § 11-427 Agreements for payment of delinquent taxes and charges in 22 installments. a. During the period beginning September first, nineteen 23 hundred seventy-eight and ending December thirty-first, nineteen hundred 24 seventy-eight, the commissioner of finance, or, when so specified here- 25 inafter, the commissioner of general services, shall be authorized and 26 empowered to make and execute agreements in the circumstances and 27 subject to the terms, conditions and limitations set forth in this 28 section; provided, however, that if the commissioner of finance or, 29 where applicable, the commissioner of general services, determines in 30 his or her sole discretion that good cause exists, he or she may make 31 and execute such agreements during an additional period ending not later 32 than January thirty-first, nineteen hundred seventy-nine. 33 b. (1) (i) Whenever it shall appear that a tax lien on a parcel has 34 been due and unpaid for a period of at least six months from the date on 35 which the tax, assessment or other legal charge represented thereby 36 became a lien, the commissioner of finance may enter into an agreement 37 with the owner of such parcel or other person claiming to have an inter- 38 est therein providing for the payment of such delinquent taxes, assess- 39 ments or other legal charges and interest and penalties in installments, 40 the first of which shall be equal to at least fifteen percent of such 41 arrears and shall be payable upon the execution of such agreement. Each 42 remaining installment shall be equal to at least an amount produced by 43 dividing the balance of such arrears by a factor determined by multiply- 44 ing the number of quarters of such arrears by two. 45 (ii) In no event, however, shall the factor referred to in subpara- 46 graph (i) of this paragraph be in excess of thirty-two. Each such 47 remaining installment shall be payable quarterly on the first of July, 48 October, January and April. 49 (2) If an agreement authorized by paragraph one of this subdivision is 50 executed prior to the time the commissioner of finance files in the 51 office of the county clerk a list of delinquent taxes covering the city 52 or portion of the city in which the subject parcel is located, such 53 parcel shall be excluded from such list of delinquent taxes, provided, 54 at the time such list is filed, there is no default in the agreement and 55 all current taxes, assessments or other legal charges were paid as they 56 became due or within the period of grace provided by law. In the eventS. 8474 342 1 of any default in the agreement or any failure to make timely payment of 2 any current item, the parcel shall, if then delinquent for the applica- 3 ble period specified in section 11-404 of this chapter, be eligible for 4 inclusion in any list of delinquent taxes thereafter filed. 5 (3) If an in rem foreclosure action has been commenced against any 6 parcel prior to September first, nineteen hundred seventy-eight, the 7 commissioner of finance may, notwithstanding the provisions of paragraph 8 three of subdivision a of section 11-413 of this chapter, enter into an 9 agreement authorized and described in the foregoing provisions of this 10 section with respect to such parcel. However, if such an agreement is 11 entered into subsequent to the last date for redemption specified in 12 subdivision a of section 11-407 of this chapter, there shall be paid to 13 the commissioner of finance at the time said agreement is executed an 14 amount equal to the penalty which would have been payable under subdivi- 15 sion c of section 11-407 of this chapter had the person executing the 16 agreement made a late redemption payment. Such amount shall be in addi- 17 tion to any installment payments required to be made under the agreement 18 and shall not be credited against any such installment payments. Any 19 parcel which is the subject of an agreement made pursuant to this para- 20 graph may, prior to final judgment, be withdrawn from the action, 21 provided there has been no default in the agreement, and provided 22 further that all current taxes, assessments or other legal charges are 23 paid when they become due or within the period of grace provided by law. 24 Such withdrawal shall be effected by the commissioner of finance in the 25 manner provided in section 11-413 of this chapter. 26 (4) Any person who, prior to September first, nineteen hundred seven- 27 ty-eight, has made, executed and filed with the commissioner of finance 28 an agreement pursuant to the provisions of paragraph three of subdivi- 29 sion a of section 11-413 of this chapter, shall be permitted to make 30 application to the commissioner of finance for the purpose of having 31 such agreement cancelled and a new agreement executed as hereinabove 32 provided. 33 If an agreement executed prior to September first, nineteen hundred 34 seventy-eight is not cancelled as herein provided, any installments due 35 and payable under such agreement on or after February first, nineteen 36 hundred seventy-nine shall be subject to interest at the rate specified 37 in paragraph six of this subdivision, but only if, as of February first, 38 nineteen hundred seventy-nine, there is no default in the agreement and 39 all current taxes, assessments or other legal charges have been paid 40 within the time allowed by law. Such rate of interest shall be calcu- 41 lated in the manner and shall be subject to all the conditions provided 42 in paragraph six of this subdivision. 43 (5) Notwithstanding the preceding paragraphs of this subdivision, no 44 owner of, or other person claiming to have an interest in, any parcel 45 shall be eligible to enter into an agreement authorized by such para- 46 graphs where such parcel was included in an in rem foreclosure action 47 but was severed therefrom pursuant to the judgment of foreclosure in 48 such action because an answer was still pending as to such parcel. The 49 commissioner of finance may, however, on notice to the corporation coun- 50 sel, enter into an agreement with such owner or other interested person 51 providing for the payment of all current taxes, assessments or other 52 legal charges on the parcel as they become due or within the grace peri- 53 od provided by law, and, in addition, providing for payment of the 54 amount of all delinquent taxes, assessments or other legal charges and 55 interest due as of the date the agreement is executed in installments, 56 the first of which shall be equal to at least twenty-five percent ofS. 8474 343 1 such amount and shall be payable upon the execution of such agreement, 2 and the balance of which shall be payable in twelve equal quarterly 3 installments, each of which shall be paid on the first of July, October, 4 January and April. In addition, there shall be paid to the commissioner 5 of finance at the time such agreement is executed a penalty equal to 6 five percent of the amount of the delinquent taxes, assessments or other 7 legal charges and interest due as of the date of the agreement, which 8 penalty shall not exceed five hundred dollars. Any installments due and 9 payable on or after February first, nineteen hundred seventy-nine under 10 an agreement described in this paragraph shall be subject to interest at 11 the rate specified in paragraph six of this subdivision, but only if, as 12 of February first, nineteen hundred seventy-nine, there is no default in 13 the agreement and all current taxes, assessments or other legal charges 14 have been paid within the time allowed by law. Such rate of interest 15 shall be calculated in the manner and shall be subject to all the condi- 16 tions provided in paragraph six of this subdivision. 17 Upon receipt of the final payment due under an agreement executed 18 pursuant to this paragraph, the commissioner of finance shall discontin- 19 ue the in rem action pending with respect to the parcel which is the 20 subject of such agreement, and shall cancel the lis pendens pertaining 21 thereto by issuing a certificate of withdrawal pursuant to section 22 11-413 of this chapter. In the event of any default in such agreement or 23 any failure to pay current taxes, assessments or other legal charges as 24 they become due or within the grace period provided by law, such agree- 25 ment and the answer which was the basis for the severance of the subject 26 parcel from the in rem action shall both be deemed null and void and the 27 city shall be entitled to acquire title to such parcel by entry of an 28 appropriate supplemental judgment of foreclosure in such in rem action 29 without further notice to the answering party. 30 (6) When an agreement has been entered into pursuant to this subdivi- 31 sion, the commissioner of finance shall, notwithstanding the rates of 32 interest prescribed in section 11-224, 11-312 or 11-313 of this title, 33 charge, collect and receive interest on the arrears due and payable 34 under such agreement, to be calculated at the rate of seven percent per 35 annum from February first, nineteen hundred seventy-nine to the date of 36 payment of each installment. Any interest accrued or accruing prior to 37 February first, nineteen hundred seventy-nine shall not be affected by 38 the provisions of this paragraph, but shall be charged, collected and 39 received in the manner and at the rates specified in section 11-224, 40 11-312 or 11-313 of this title. The seven percent rate of interest spec- 41 ified in this paragraph shall be applicable only if (i) there is no 42 default in the agreement entered into as provided in this section, and 43 (ii) all current taxes, assessments or other legal charges are paid as 44 they become due or within the period of grace provided by law. In the 45 event of any default or failure to make timely payment of any current 46 item, the seven percent rate of interest specified in this paragraph 47 shall thereupon cease to be applicable and the commissioner of finance 48 shall thereafter charge, collect and receive interest in the manner and 49 at the rates otherwise specified in this chapter. 50 (7) In addition to the terms and conditions required by this subdivi- 51 sion to be included in agreements authorized by this section, the 52 commissioner of finance may, in his or her discretion, include in such 53 agreements such additional terms and conditions, not inconsistent with 54 this section, as the commissioner determines to be necessary in order to 55 properly carry out the provisions of this section. The commissioner mayS. 8474 344 1 also adopt such rules and regulations as may be necessary to carry out 2 the provisions of this section. 3 c. (1) If, pursuant to the provisions of section 11-424 of this chap- 4 ter, an application for the release of property acquired by the city 5 through in rem tax foreclosure has been filed within the four-month 6 period specified in subdivision f of such section, and the sixty-day 7 period for payment referred to in such subdivision has not expired prior 8 to the commencement of the period specified in subdivision a of this 9 section, the provisions of this subdivision shall, at the election of 10 the applicant, apply with respect to such application and the release 11 sought thereby, provided notice of such election is given to the commis- 12 sioner of general services during the period specified in subdivision a 13 of this section, but in no event later than the last day of the sixty- 14 day period referred to in subdivision f of section 11-424 of this chap- 15 ter. 16 (2) An applicant who elects to have the provisions of this subdivision 17 apply to him or her, shall, at the time such applicant notifies the 18 commissioner of general services of his or her election, pay to the city 19 the amounts specified in paragraphs two, three and four of subdivision d 20 of section 11-424 of this chapter; for this purpose, the amount speci- 21 fied in paragraph two thereof shall be deemed to be the amount which 22 would have been required to be paid thereunder had this section not been 23 in effect. Concurrent with the making of such payment, the applicant 24 shall enter into an agreement with the commissioner of general services 25 providing for the payment of all current taxes, assessments or other 26 legal charges on the property as they become due or within the grace 27 period provided by law, and, in addition, providing for the payment of 28 the amount specified in paragraph one of subdivision d of section 11-424 29 of this chapter in installments, the first of which shall be equal to at 30 least twenty-five percent of such amount and shall be payable upon the 31 execution of such agreement. The balance of such amount shall be payable 32 in twelve equal quarterly installments, each of which shall be paid 33 quarterly on the first of July, October, January and April. 34 (3) Pending approval by the corporation counsel of an application for 35 release as to form, timeliness and eligibility of the applicant, all 36 payments made pursuant to paragraph three of this subdivision shall be 37 held in escrow; in the event the corporation counsel disapproves the 38 application, such payments shall be returned to the applicant, and the 39 agreement executed by him or her shall thereupon be cancelled. 40 (4) In the case of any agreement made and executed pursuant to para- 41 graph two of this subdivision, interest on any installment due and paya- 42 ble thereunder shall, notwithstanding the rates of interest prescribed 43 in section 11-224, 11-312 or 11-313 of this title, be charged, collected 44 and received at the rate of seven percent per annum from February first, 45 nineteen hundred seventy-nine to the date of payment of each install- 46 ment. Any interest accrued or accruing prior to February first, nineteen 47 hundred seventy-nine shall not be affected by the provisions of this 48 paragraph, but shall be charged, collected and received in the manner 49 and at the rates specified in section 11-224, 11-312 or 11-313 of this 50 title. The seven percent rate of interest specified in this paragraph 51 shall be applicable only if (i) there is no default in the agreement 52 entered into as provided in this subdivision, and (ii) all current 53 taxes, assessments or other legal charges are paid as they become due or 54 within the period of grace provided by law. 55 (5) No release for which application has been made pursuant to subdi- 56 vision f of section 11-424 of this chapter shall be granted until theS. 8474 345 1 final payment under the agreement herein provided is received by the 2 city. Upon receipt of such final payment by the city the corporation 3 counsel shall effect the release in the manner provided in section 4 11-424 of this chapter. In the event of any default in an agreement 5 executed as provided in this subdivision or any failure to pay current 6 taxes, assessments or other legal charges as they become due or within 7 the grace period provided by law, such agreement shall thereupon become 8 void, the release process shall be terminated and all payments thereto- 9 fore made shall be forfeited to the city. 10 (6) In addition to the terms and conditions required by this subdivi- 11 sion to be included in agreements authorized thereby, the commissioner 12 of general services may, in his or her discretion, include in such 13 agreements such additional terms and conditions, not inconsistent with 14 this subdivision, as the commissioner determines to be necessary in 15 order to properly carry out the provisions hereof. The commissioner of 16 general services may also adopt such rules and regulations as may be 17 necessary to carry out the provisions of this subdivision. 18 § 11-428 Disposition of proceeds of sales of properties acquired by 19 city through tax enforcement foreclosure proceedings. The proceeds of 20 the sale of real property acquired through tax enforcement foreclosure 21 proceedings, or by deed in lieu thereof, including subsequent receipts 22 in diminution of purchase money mortgages accepted at the time of sale, 23 shall be applied as follows: 24 a. The amount of the unpaid real estate taxes accrued against such 25 property from the first of January or the first of July, whichever first 26 immediately precedes the date on which title vested in the city to the 27 date of conveyance of title by the city, without interest or penalties 28 thereon, shall be credited to the tax deficiency account. 29 b. The balance, if any, remaining after deduction of the amount speci- 30 fied in paragraph a hereof, shall be paid into the funds hereinafter 31 specified in the following order: 32 1. A sum equal to the amount of the unpaid assessments for local 33 improvements accrued against such property at the date of commencement 34 of the foreclosure proceeding and up to the date of conveyance of title 35 by the city, without interest or penalties thereon, shall be paid into 36 the appropriate assessment funds. 37 2. A sum equal to the amount of unpaid sewer rents, including interest 38 and penalties thereon, accrued against such property at the date of 39 commencement of the foreclosure proceedings and up to the date of 40 conveyance of title by the city shall be paid into the sewer fund. 41 3. The amount of the brokerage fee and other expenses expended by the 42 city in connection with such sale shall be paid into the fund or code to 43 which such fee was charged. 44 4. The balance of such proceeds, if any, and the interest on any 45 purchase money mortgage accepted by the city at the time of such sale 46 shall be paid into the general fund. In the event that any part of such 47 balance is represented by bonds and mortgages, such bonds and mortgages 48 may be deposited in the tax appropriation and general fund stabilization 49 reserve fund and a sum equal to the amount of the cash represented by 50 such bonds and mortgages shall in such event be transferred from the tax 51 appropriation and general fund stabilization reserve fund to the general 52 fund. 53 CHAPTER 5 54 CITY UNINCORPORATED BUSINESS INCOME TAXS. 8474 346 1 § 11-501 Meaning of terms. (a) General. Unless a different meaning is 2 clearly required, any term used in this chapter shall have the same 3 meaning as when used in a comparable context in the laws of the United 4 States relating to federal income taxes, and any reference in this chap- 5 ter to the laws of the United States shall mean the provisions of the 6 internal revenue code of nineteen hundred fifty-four, and amendments 7 thereto, and other provisions of the laws of the United States relating 8 to federal income taxes, as the same are included in this chapter as an 9 appendix or as included by reference to an appendix of another chapter 10 enacted by the same law as enacts this chapter. (The quotation of the 11 aforesaid laws of the United States is intended to make them a part of 12 this chapter and to avoid constitutional uncertainties which might 13 result if such laws were merely incorporated by reference. The quotation 14 of a provision of the federal internal revenue code or of any other law 15 of the United States shall not necessarily mean that it is applicable to 16 or has relevance to this chapter.) 17 (b) "State", "this state" or "the state" when used in this chapter 18 shall mean the state of New York. 19 (c) "Local income taxes", when used in this chapter shall mean an 20 income tax imposed by a political subdivision of a state. 21 (d) "Commissioner of finance" when used in this chapter shall mean the 22 commissioner of finance of the city. 23 (e) "Department of finance" when used in this chapter shall mean the 24 department of finance of the city. 25 (f) "Tax appeals tribunal" when used in this chapter shall mean the 26 tax appeals tribunal established by section one hundred sixty-eight of 27 the charter of the preceding municipality as it existed January first, 28 two thousand nine. 29 (g) "Unincorporated business entire net income" when used in this 30 chapter shall mean the excess of the unincorporated business gross 31 income of an unincorporated business over its unincorporated business 32 deductions. 33 (h) "Investment capital" when used in this chapter shall mean invest- 34 ments of the unincorporated business in stocks, bonds and other securi- 35 ties, corporate and governmental (excluding governmental stocks, bonds 36 and other securities the interest or dividends from which are fully 37 exempt from tax under this chapter, other than any such governmental 38 stock, bond or other security which is sold or otherwise disposed of 39 during the taxable year in a transaction which results in a gain or loss 40 which is included in computing unincorporated business entire net income 41 for the taxable year), not held for sale to customers in the regular 42 course of business, provided, however, that in the discretion of the 43 commissioner of finance, there shall be deducted from investment capital 44 any liabilities of the unincorporated business which are directly or 45 indirectly attributable to investment capital. 46 (i) "Investment income" when used in this chapter shall mean income, 47 gains and losses from investment capital, to the extent included in 48 computing unincorporated business entire net income, less, in the 49 discretion of the commissioner of finance, any deductions allowable in 50 computing unincorporated business entire net income which are directly 51 or indirectly attributable to investment capital or investment income, 52 provided, however, that in no case shall investment income exceed unin- 53 corporated business entire net income. 54 (j) "Business capital" when used in this chapter shall mean all assets 55 of the unincorporated business other than investment capital, less 56 liabilities of the unincorporated business not deducted from investmentS. 8474 347 1 capital, except that cash on hand and on deposit shall be treated as 2 investment capital or as business capital as the taxpayer may elect. 3 (k) "Business income" when used in this chapter shall mean unincorpo- 4 rated business entire net income minus investment income. 5 (l) "Dealer" when used in this chapter shall mean an individual or 6 unincorporated entity that (A) holds or disposes of property that is 7 stock in trade of the taxpayer, inventory or is otherwise held for sale 8 to customers in the ordinary course of the taxpayer's trade or business, 9 or (B) regularly offers to enter into, assume, offset, assign or other- 10 wise terminate positions in property with customers in the ordinary 11 course of the taxpayer's trade or business, provided, however, an indi- 12 vidual or unincorporated entity shall not be treated as a dealer based 13 solely on such individual's or entity's ownership of an interest in an 14 entity that is a dealer, and provided, further, that an unincorporated 15 entity shall not be treated as a dealer based solely on the ownership by 16 a dealer of an interest in that unincorporated entity. 17 (m) "Unincorporated entity" when used in this chapter shall include an 18 entity classified as a partnership for federal income tax purposes 19 regardless of whether the entity is formed as a corporation, joint-stock 20 company, joint-stock association, body corporate or body politic or 21 whether the entity is organized under a federal or state statute, or 22 under a statute of a federally recognized Indian tribe, or under a stat- 23 ute of a country other than the United States that describes or refers 24 to the entity as incorporated. 25 § 11-502 Unincorporated business defined. (a) General. An unincorpo- 26 rated business means any trade, business, profession or occupation 27 conducted, engaged in or being liquidated by an individual or unincorpo- 28 rated entity, including a partnership, a fiduciary, a corporation in 29 liquidation or an unincorporated entity that has made the election 30 permitted under paragraph (b) of subdivision one of section 11-602 of 31 this title (but only for the period during which such election is in 32 effect), but not including any entity subject to tax under chapter six 33 of this title and not including any entity doing an insurance business 34 as a member of the New York insurance exchange described in paragraph 35 one of subsection (b) of section six thousand two hundred one of the 36 insurance law. Unincorporated businesses subject to tax under a local 37 law of the city imposing a tax on utilities shall not be subject to tax 38 under this chapter; provided, however, that unincorporated businesses, 39 other than (1) utility businesses subject to the supervision of the 40 state department of public service and (2) for taxable years beginning 41 on or after August first, two thousand two, utilities as defined in 42 subdivision six of section 11-1101 of this title, which are subject to 43 tax under a local law of the city imposing a tax on vendors of utility 44 services shall be subject to tax under this chapter on that percentage 45 of their entire net income allocable to the city under section 11-508 of 46 this chapter which their receipts other than those taxable under such 47 local law taxing vendors of utility services is of their total receipts. 48 If an individual or an unincorporated entity carries on wholly or partly 49 in the city two or more unincorporated businesses, all such businesses 50 shall be treated as one unincorporated business for the purposes of this 51 chapter. For purposes of this chapter, an unincorporated entity shall be 52 treated as carrying on any trade, business, profession or occupation 53 carried on in whole or in part in the city by any other unincorporated 54 entity in which the first unincorporated entity owns an interest, and 55 the ownership by an unincorporated entity of an interest in another 56 unincorporated entity that is not carrying on any trade, business,S. 8474 348 1 profession, or occupation in whole or in part in the city shall not be 2 deemed the conduct of an unincorporated business by the first unincorpo- 3 rated entity. Notwithstanding anything to the contrary in the preceding 4 sentence, for taxable years beginning on or after August first, two 5 thousand two, an unincorporated business that is a partner in a partner- 6 ship subject to tax under a local law of the city imposing a tax on 7 utilities, as defined in subdivision six of section 11-1101 of this 8 title, shall not be considered to be carrying on the trade, business, 9 profession or occupation carried on by such partnership. 10 (b) Services as employee. The performance of services by an individual 11 as an employee or as an officer or director of a corporation, society, 12 association, or political entity, or as a fiduciary, shall not be deemed 13 an unincorporated business, unless such services constitute part of a 14 business regularly carried on by such individual. 15 (c) Purchase and sale for own account. (1) Definitions. (A) Property. 16 For purposes of this subdivision, property shall mean real and personal 17 property, including but not limited to, property qualifying as invest- 18 ment capital within the meaning of subdivision (h) of section 11-501 of 19 this chapter, other stocks, notes, bonds, debentures, or other evidences 20 of indebtedness, interest rate, currency, or equity notional principal 21 contracts, foreign currencies, interests in, or derivative financial 22 instruments (including options, forward or futures contracts, short 23 positions, and similar financial instruments) in any property described 24 above, and any commodity traded on or subject to the rules of a board of 25 trade or commodity exchange, provided, however, property shall not 26 include: (i) debt instruments issued by the taxpayer; (ii) accounts 27 receivable held by a factor; (iii) property held as stock in trade, 28 inventory or otherwise held for sale to customers in the ordinary course 29 of the taxpayer's trade or business; (iv) debt instruments acquired in 30 the ordinary course of the taxpayer's trade or business for funds 31 loaned, services rendered or for the sale, rental or other transfer of 32 property by the taxpayer; (v) interests in unincorporated entities; or 33 (vi) positions in property described above entered into, assumed, 34 offset, assigned or terminated by a dealer with respect to such posi- 35 tions in property. 36 (B) Investor. For purposes of this subdivision, a taxpayer shall be 37 treated as acquiring, holding or disposing of an interest in an unincor- 38 porated entity as an investor if: (i) the unincorporated entity meets 39 the requirements of subparagraph (B) of paragraph four of this subdivi- 40 sion and the taxpayer does not receive a distributive share of such 41 entity's income, gain, loss, deduction, credit and basis from a business 42 carried on in whole or in part in the city that is materially greater 43 than its distributive share of any other item of income, gain, loss 44 deduction, credit or basis of such entity; or (ii) with respect to any 45 other unincorporated entity, the taxpayer is neither a general partner 46 nor authorized under the entity's governing instrument to manage or 47 participate in, nor managing, nor participating in, the day-to-day busi- 48 ness of the unincorporated entity. 49 (2) An individual or other unincorporated entity, except a dealer as 50 defined in subdivision (1) of section 11-501 of this chapter, shall not 51 be deemed engaged in an unincorporated business solely by reason of (A) 52 the purchase, holding and sale for his, her or its own account of prop- 53 erty, as defined in paragraph one of this subdivision, or the entry 54 into, assumption, offset, assignment, or other termination of a position 55 in any property so defined, or both, (B) the acquisition, holding or 56 disposition, other than in the ordinary course of a trade or business,S. 8474 349 1 of interests in unincorporated entities engaged solely in activities 2 described in subparagraph (A), (B) or (C) of this paragraph, or (C) any 3 combination of the activities described in subparagraphs (A) and (B) of 4 this paragraph and any other activity not otherwise constituting the 5 conduct of an unincorporated business subject to the tax imposed by this 6 chapter, but this paragraph shall not apply if the unincorporated entity 7 is taxable as a corporation for federal income tax purposes. 8 (3) Notwithstanding anything to the contrary, the receipt by an indi- 9 vidual or other unincorporated entity of twenty-five thousand dollars or 10 less of gross receipts during the taxable year (determined without 11 regard to any deductions) from an unincorporated business wholly or 12 partly carried on within the city by such individual or unincorporated 13 entity shall not cause such individual or other unincorporated entity to 14 be treated as not engaged solely in the activities described in subpara- 15 graph (A), (B) or (C) of paragraph two of this subdivision. 16 (4) (A) If a taxpayer that is an unincorporated entity is primarily 17 engaged in (i) activities described in subparagraph (A), (B) or (C) of 18 paragraph two of this subdivision, or (ii) the acquisition, holding or 19 disposition, other than in the ordinary course of a trade or business, 20 of interests as an investor in unincorporated entities carrying on any 21 unincorporated business in whole or in part in the city, or both, the 22 activities described in subparagraph (A), (B), or (C) of paragraph two 23 of this subdivision carried on by the taxpayer or by any unincorporated 24 entity primarily engaged in the activities described in clause (i) or 25 (ii) of this subparagraph in which the taxpayer owns an interest shall 26 not be deemed an unincorporated business carried on by the taxpayer. 27 (B) For purposes of subparagraph (A) of this paragraph, an unincorpo- 28 rated entity will be treated as primarily engaged in activities 29 described in clause (i) or (ii) of subparagraph (A) of this paragraph, 30 or both, if at least ninety percent of the value of its total assets is 31 represented by assets described in subparagraph (C) of this paragraph. 32 (C) For purposes of subparagraph (B) of this paragraph, assets 33 described in this subparagraph include: 34 (i) property as defined in paragraph one of this subdivision; 35 (ii) interests in unincorporated entities not carrying on any unincor- 36 porated business in whole or in part in the city; and 37 (iii) interests in unincorporated entities carrying on an unincorpo- 38 rated business in whole or in part in the city held by the taxpayer as 39 an investor, as defined in paragraph one of this subdivision. 40 (D) For purposes of determining whether a taxpayer meets the require- 41 ments of subparagraph (B) of this paragraph, the value of assets 42 described in subparagraph (C) of this paragraph shall be the average 43 monthly gross value of the assets of the taxpayer. For purposes of this 44 paragraph, the value of assets of the taxpayer that consist of real 45 property or marketable securities shall be the fair market value thereof 46 and the value of assets other than real property or marketable securi- 47 ties shall be the value thereof shown on the books and records of the 48 taxpayer in accordance with generally accepted accounting principles. In 49 case it shall appear to the commissioner of finance that the use of 50 gross value in determining whether the requirements of subparagraph (B) 51 of this paragraph are met, improperly or inaccurately reflects the 52 taxpayer's primary activities, the commissioner of finance is authorized 53 in his or her discretion and in such manner as he or she may determine, 54 to reduce the gross value of the taxpayer's assets by liabilities 55 attributable thereto or to eliminate assets, so as to properly and accu- 56 rately reflect the taxpayer's primary activities.S. 8474 350 1 (d) Holding, leasing or managing real property. An owner of real prop- 2 erty, a lessee or a fiduciary shall not be deemed engaged in an unincor- 3 porated business solely by reason of holding, leasing or managing real 4 property. If an owner of real property or lessee or fiduciary (except a 5 dealer holding real property primarily for sale to customers in the 6 ordinary course of his or her trade or business) who is holding, leasing 7 or managing real property is also carrying on an unincorporated business 8 in whole or in part in the city, whether or not such unincorporated 9 business is carried on at or is connected with such real property, such 10 holding, leasing or managing of real property shall not be deemed an 11 unincorporated business if, and only to the extent that, such real prop- 12 erty is held, leased or managed for the purpose of producing rental 13 income from such real property or gain upon the sale or other disposi- 14 tion of such real property. For purposes of this subdivision, the 15 conduct by such owner, lessee or fiduciary, at such real property, of a 16 trade, business, profession or occupation, including, but not limited 17 to, a garage, restaurant, laundry or health club, shall be deemed to be 18 an incident to the holding, leasing or managing of such real property, 19 and shall not be deemed the conduct of an unincorporated business, if 20 such trade, business, profession or occupation is conducted solely for 21 the benefit of tenants at such real property, as an incidental service 22 to such tenants, and is not open or available to the general public, 23 provided, however, if any such owner, lessee or fiduciary operates a 24 garage, parking lot or other similar facility at such real property that 25 is open or available to the general public, the provision by any such 26 owner, lessee or fiduciary of the service of parking, garaging or stor- 27 ing of motor vehicles on a monthly or longer term basis shall be deemed 28 to be an incident to the holding, leasing or managing of such real prop- 29 erty, and shall not be deemed the conduct of an unincorporated business 30 if, and only to the extent that, such monthly or longer term parking, 31 garaging or storing service is provided to tenants at such real property 32 as an incidental service to such tenants. If an owner, lessee or fiduci- 33 ary holding, leasing or managing real property operates at such real 34 property a garage, parking lot or other similar facility that is open or 35 available to the public, each such owner, lessee or fiduciary shall 36 file, together with and as a part of the returns required under section 37 11-514 of this chapter, a report or schedule for each such garage, park- 38 ing lot or other similar facility, or in the discretion of the commis- 39 sioner, make a separate entry on such returns, identifying the specific 40 location and address, license number and licensed capacity of each such 41 garage, parking lot or other similar facility, and shall include such 42 additional information, data and other matters relating to the provision 43 of such monthly or longer term parking, garaging or storing service to 44 tenants as shall be prescribed by the commissioner of finance. If the 45 separate information required to be reported by any owner, lessee or 46 fiduciary holding, leasing or managing real property for any garage, 47 parking lot or other similar facility at such real property that is open 48 or available to the public is not contained in the returns required 49 under section 11-514 of this chapter, or in any amended returns, in any 50 material respect, the provision of parking, garaging or storing service 51 to tenants at such real property shall be deemed the conduct of an unin- 52 corporated business and not incident to the holding, leasing or managing 53 of such real property. 54 (e) Sales representative. An individual, other than one who maintains 55 an office or who employs one or more assistants or who otherwise regu- 56 larly carries on a business, shall not be deemed engaged in an unincor-S. 8474 351 1 porated business solely by reason of selling goods, wares, merchandise 2 or insurance for more than one enterprise. For purposes of this subdi- 3 vision, space utilized solely for the display of merchandise and/or for 4 the maintenance and storage of records normally used in the course of 5 business shall not be deemed an office, and the employment of clerical 6 and secretarial assistance shall not be deemed the employment of assist- 7 ants. 8 (f) Exempt trusts and organizations. A trust or other unincorporated 9 organization which by reason of its purposes or activities is exempt 10 from federal income tax shall not be deemed an unincorporated business 11 regardless of whether subject to federal income tax on unrelated busi- 12 ness taxable income. 13 § 11-503 Imposition of tax. (a) General. A tax at the rate of four 14 percent is hereby imposed for each taxable year, beginning with taxable 15 years ending after January first, nineteen hundred sixty-six, on the 16 unincorporated business taxable income of every unincorporated business 17 wholly or partly carried on within the city. This tax shall be in addi- 18 tion to any other taxes imposed. 19 (b) Credit against tax. (1) For each taxable year beginning after 20 nineteen hundred eighty-six but before nineteen hundred ninety-six: 21 (A) if the tax computed under subdivision (a) of this section is six 22 hundred dollars or less, a credit shall be allowed for the entire amount 23 of such tax; 24 (B) if the tax computed under subdivision (a) of this section exceeds 25 six hundred dollars but is less than eight hundred dollars, a credit 26 shall be allowed in the amount determined by multiplying such tax by a 27 fraction the numerator of which is eight hundred dollars minus the 28 amount of such tax and the denominator of which is two hundred dollars; 29 or 30 (C) if the tax computed under subdivision (a) of this section is eight 31 hundred dollars or more, no credit shall be allowed. 32 (2) For each taxable year beginning in nineteen hundred ninety-six: 33 (A) if the tax computed under subdivision (a) of this section is eight 34 hundred dollars or less, a credit shall be allowed for the entire amount 35 of such tax; 36 (B) if the tax computed under subdivision (a) of this section exceeds 37 eight hundred dollars but is less than one thousand dollars, a credit 38 shall be allowed in the amount determined by multiplying such tax by a 39 fraction the numerator of which is one thousand dollars minus the amount 40 of such tax and the denominator of which is two hundred dollars; or 41 (C) if the tax computed under subdivision (a) of this section is one 42 thousand dollars or more, no credit shall be allowed. 43 (3) For each taxable year beginning after nineteen hundred ninety-six 44 but before two thousand nine: 45 (A) if the tax computed under subdivision (a) of this section is one 46 thousand eight hundred dollars or less, a credit shall be allowed for 47 the entire amount of such tax; 48 (B) if the tax computed under subdivision (a) of this section exceeds 49 one thousand eight hundred dollars but is less than three thousand two 50 hundred dollars, a credit shall be allowed in the amount determined by 51 multiplying such tax by a fraction the numerator of which is three thou- 52 sand two hundred dollars minus the amount of such tax and the denomina- 53 tor of which is one thousand four hundred dollars; or 54 (C) if the tax computed under subdivision (a) of this section is three 55 thousand two hundred dollars or more, no credit shall be allowed. 56 (3-a) For each taxable year beginning after two thousand eight:S. 8474 352 1 (A) if the tax computed under subdivision (a) of this section is three 2 thousand four hundred dollars or less, a credit shall be allowed for the 3 entire amount of such tax; 4 (B) if the tax computed under subdivision (a) of this section exceeds 5 three thousand four hundred dollars but is less than five thousand four 6 hundred dollars, a credit shall be allowed in the amount determined by 7 multiplying such tax by a fraction the numerator of which is five thou- 8 sand four hundred dollars minus the amount of such tax and the denomina- 9 tor of which is two thousand dollars; or 10 (C) if the tax computed under subdivision (a) of this section is five 11 thousand four hundred dollars or more, no credit shall be allowed. 12 (4) If separate partnerships, joint ventures or other unincorporated 13 entities have substantially the same partners or members, each of such 14 partners or members has substantially the same interest in each of such 15 partnerships, joint ventures or other unincorporated entities, and such 16 partnerships, joint ventures or other unincorporated entities are 17 engaged in substantially the same business or businesses or in substan- 18 tially related businesses, all of such partnerships, joint ventures or 19 other unincorporated entities shall be treated as one unincorporated 20 business for purposes of this subdivision. The provisions of this para- 21 graph shall not be construed to limit or affect the meaning or applica- 22 tion of any other provision of this chapter. 23 (5) Notwithstanding anything to the contrary, the credit allowable 24 under this subdivision shall be taken prior to any other credit allowed 25 by this section. 26 (c) Credit relating to stock transfer tax. (1) In addition to any 27 other credit permitted under this section, a taxpayer shall be allowed a 28 credit, to be credited or refunded in the manner hereinafter provided in 29 this subdivision, against the tax imposed by this chapter after the 30 allowance of any other credit under this section. The amount of such 31 credit shall be fifty percent of the tax incurred in market making tran- 32 sactions under the provisions of article twelve of the tax law on such 33 transactions subject to such tax occurring on and after August first, 34 nineteen hundred seventy-six and paid by such taxpayer, except when such 35 tax shall have been paid pursuant to section two hundred seventy-nine-a 36 of the tax law. 37 (2) For purposes of this subdivision: 38 a. the term "taxpayer" shall mean any unincorporated business subject 39 to tax under this chapter registered with the United States securities 40 and exchange commission in accordance with subsection (b) of section 41 fifteen of the securities exchange act of nineteen hundred thirty-four, 42 as amended, and acting as a dealer in a transaction described in subpar- 43 agraph b of this paragraph, and 44 b. the term "market making transaction" shall mean any transaction 45 involving a sale, including a short sale, by a dealer of shares or 46 certificates subject to the tax imposed by article twelve of the tax 47 law, provided such shares or certificates are sold: 48 (i) as stock in trade or inventory or as property held for sale in the 49 ordinary course of such dealer's trade or business including transfers 50 which are part of an underwriting, 51 (ii) in (a) a bona fide arbitrage transaction; (b) a bona fide hedge 52 transaction involving a long or short position in any equity security 53 and a long or short position in a security entitling the holder to 54 acquire or sell such equity security; or (c) a risk arbitrage trans- 55 action in connection with a merger, acquisition, tender offer, recap- 56 italization, reorganization, or similar transaction, orS. 8474 353 1 (iii) to offset a transaction made in error. 2 Provided, however, that, except as to subclause (c) of clause (ii) of 3 subparagraph b of this paragraph, the term "market making transaction" 4 shall not include any sale of shares or certificates identified in such 5 dealer's records as a security held for investment within the meaning of 6 section twelve hundred thirty-six of the internal revenue code. 7 (3) The credit allowed under this subdivision for any taxable year 8 shall be deemed to be an overpayment of tax by the taxpayer to be cred- 9 ited or refunded in accordance with the provisions of section 11-526 of 10 this chapter, except as otherwise provided in subdivision (g) of 11 sections 11-512 and 11-514 of this chapter; provided, however, that the 12 provisions of this chapter notwithstanding, the amount to be refunded 13 pursuant to this subdivision shall not be paid prior to the first day of 14 the eighth month following the close of the taxable year, and the 15 provisions of subdivision (c) of section 11-528 of this chapter notwith- 16 standing, interest shall be allowed and paid on the overpayment of the 17 credit under this subdivision from the first day of the eleventh month 18 following the close of the taxable year, or three months after a claim 19 for the credit or refund provided for in this subdivision has been 20 filed, whichever is later. 21 (4) Provided, however, that the credit provided under this subdivi- 22 sion shall be allowed only to the extent that the amount of credit 23 allowable with respect to market making transactions under the 24 provisions of this subdivision (determined without regard to the 25 provisions of this paragraph) exceeds fifty percent of all rebates 26 (provided for under the provisions of section two hundred eighty-a of 27 article twelve of the tax law) allowed for such taxes incurred in the 28 same market making transactions with respect to which the credit is 29 determined. No credit shall be allowed under this subdivision with 30 respect to any tax incurred in market making transactions occurring on 31 or after October first, nineteen hundred eighty-one. 32 (d) Credit relating to certain sales and compensating use taxes. (1) 33 In addition to the credits allowed by subdivisions (b) and (c) of this 34 section, a taxpayer shall be allowed a credit against the tax imposed by 35 this chapter to be credited or refunded in the manner hereinafter 36 provided in this section. The amount of such credit shall be the excess 37 of (A) the amount of sales and compensating use taxes imposed by section 38 eleven hundred seven of the tax law during the taxpayer's taxable year 39 which became legally due on or after and was paid on or after July 40 first, nineteen hundred seventy-seven, less any credit or refund of such 41 taxes, with respect to the purchase or use by the taxpayer of machinery 42 or equipment for use or consumption directly and predominantly in the 43 production of tangible personal property, gas, electricity, refriger- 44 ation or steam for sale, by manufacturing, processing, generating, 45 assembling, refining, mining or extracting, or telephone central office 46 equipment or station apparatus or comparable telegraph equipment for use 47 directly and predominantly in receiving at destination or initiating and 48 switching telephone or telegraph communication, but not including parts 49 with a useful life of one year or less or tools or supplies used in 50 connection with such machinery, equipment or apparatus over (B) the 51 amount of any credit for such sales and compensating use taxes allowed 52 or allowable against the taxes imposed by subchapter two of chapter six 53 of this title, for any periods embraced within the taxable year of the 54 taxpayer under this chapter. 55 (2) The credit allowed under this section for any taxable year shall 56 be deemed to be an overpayment of tax by the taxpayer to be credited orS. 8474 354 1 refunded, without interest, in accordance with the provisions of section 2 11-526 of this chapter. 3 (3) Where the taxpayer receives a refund or credit of any tax imposed 4 under section eleven hundred seven of the tax law for which the taxpayer 5 had claimed a credit under the provisions of this section in a prior 6 taxable year, the amount of such tax refund or credit shall be added to 7 the tax imposed by this section, and such amount shall be subtracted in 8 computing unincorporated business taxable income for the taxable year. 9 (e) Credit relating to the annual increase in certain payments to a 10 landlord by a taxpayer relocating industrial and commercial employment 11 opportunities. (1) In addition to any other credit allowed by this 12 section, a taxpayer shall be allowed a credit against the tax imposed by 13 this chapter to be credited or refunded, without interest, in the manner 14 hereinafter provided in this section. 15 (A) Where a taxpayer shall have relocated to the city from a location 16 outside the state, and by such relocation shall have created a minimum 17 of one hundred industrial or commercial employment opportunities, and 18 where such taxpayer shall have entered into a written lease for the 19 relocation premises, the terms of which lease provide for increased 20 additional payments to the landlord which are based solely and directly 21 upon any increase or addition in real estate taxes imposed on the leased 22 premises, the taxpayer upon approval and certification by the industrial 23 and commercial incentive board as hereinafter provided shall be entitled 24 to a credit against the tax imposed by this chapter. The amount of such 25 credit shall be: An amount equal to the annual increased payments actu- 26 ally made by the taxpayer to the landlord which are solely and directly 27 attributable to an increase or addition to the real estate tax imposed 28 upon the leased premises. Such credit shall be allowed only to the 29 extent that the taxpayer has not otherwise claimed said amount as a 30 deduction against the tax imposed by this chapter. 31 The industrial and commercial incentive board in approving and certi- 32 fying to the qualifications of the taxpayer to receive the tax credit 33 provided for herein shall first determine that the applicant has met the 34 requirements of this section, and further, that the granting of the tax 35 credit to the applicant is in the "public interest." In determining 36 that the granting of the tax credit is in the public interest, the board 37 shall make affirmative findings that: the granting of the tax credit to 38 the applicant will not effect an undue hardship on similar taxpayers 39 already located within the city; the existence of this tax incentive has 40 been instrumental in bringing about the relocation of the applicant to 41 the city; and the granting of the tax credit will foster the economic 42 recovery and economic development of the city. 43 The tax credit, if approved and certified by the industrial and 44 commercial incentive board, must be utilized annually by the taxpayer 45 for the length of the term of the lease or for a period not to exceed 46 ten years from the date of relocation, whichever period is shorter. 47 (B) Definitions: When used in this section, "Employment opportunity" 48 means the creation of a full time position of gainful employment for an 49 industrial or commercial employee and the actual hiring of such employee 50 for the said position. 51 "Industrial employee" means one engaged in the manufacture or assembl- 52 ing of tangible goods or the processing of raw materials. 53 "Commercial employee" means one engaged in the buying, selling or 54 otherwise providing of goods or services other than on a retail basis. 55 "Retail" means the selling or otherwise disposing or furnishing of 56 tangible goods or services directly to the ultimate user or consumer.S. 8474 355 1 "Full time position" means the hiring of an industrial or commercial 2 employee in a position of gainful employment where the number of hours 3 worked by such employee is not less than thirty hours during any given 4 week. 5 "Industrial and commercial incentive board" means the board created 6 pursuant to subchapter two of chapter two of this title. 7 (2) The credit allowed under this section for any taxable year shall 8 be deemed to be an overpayment of tax by the taxpayer to be credited or 9 refunded, without interest, in accordance with the provisions of section 10 11-526 of this chapter. 11 (f) Credit relating to certain expenses involved in the cost of relo- 12 cating industrial and commercial employment opportunities. (1) In 13 addition to any other credit allowed by this section, a taxpayer shall 14 be allowed a credit against the tax imposed by this chapter to be cred- 15 ited or refunded in the manner hereinafter provided in this section. 16 The amount of such credit shall be: 17 (A) A maximum of three hundred dollars for each commercial employment 18 and a maximum of five hundred dollars for each industrial employment 19 opportunity relocated to the city from an area outside the state. Such 20 credit shall be allowed to a taxpayer who relocates a minimum of ten 21 employment opportunities. The credit shall be allowed against employment 22 opportunity relocation costs incurred by the taxpayer. Such credit shall 23 be allowed only to the extent that the taxpayer has not claimed a 24 deduction for allowable employment opportunity relocation costs. The 25 credit allowed hereunder may be taken by the taxpayer in whole or in 26 part in the year in which the employment opportunity is relocated by 27 such taxpayer or either of the two years succeeding such event; 28 provided, however, that no credit shall be allowed under this subdivi- 29 sion to a taxpayer for industrial employment opportunities relocated to 30 premises (i) that are within an industrial business zone established 31 pursuant to section 22-626 of the code of the preceding municipality and 32 (ii) for which a binding contract to purchase or lease was first entered 33 into by the taxpayer on or after July first, two thousand five. 34 The commissioner of finance is empowered to promulgate rules and regu- 35 lations and to prescribe the form of application to be used. 36 (B) Definitions: When used in this section, "Employment Opportunity" 37 means the creation of a full time position of gainful employment for an 38 industrial or commercial employee and the actual hiring of such employee 39 for the said position. 40 "Industrial Employee" means one engaged in the manufacture or assembl- 41 ing of tangible goods or the processing of raw materials. 42 "Commercial Employee" means one engaged in the buying, selling or 43 otherwise providing of goods or services other than on a retail basis. 44 "Retail" means the selling or otherwise disposing of tangible goods 45 directly to the ultimate user or consumer. 46 "Full Time Position" means the hiring of an industrial or commercial 47 employee in a position of gainful employment where the number of hours 48 worked by such employee is not less than thirty hours during any given 49 work week. 50 "Employment Opportunity Relocation Costs" means the costs incurred by 51 the taxpayer in moving furniture, files, papers and office equipment 52 into the city from a location outside the state; the costs incurred by 53 the taxpayer in the moving from a location outside the state; the costs 54 of installation of telephones and other communications equipment 55 required as a result of the relocation to the city from a location 56 outside the state; the cost incurred in the purchase of office furnitureS. 8474 356 1 and fixtures required as a result of the relocation to the city from a 2 location outside the state; and the cost of renovation of the premises 3 to be occupied as a result of the relocation provided, however, that 4 such renovation costs shall be allowable only to the extent that they do 5 not exceed seventy-five cents per square foot of the total area utilized 6 by the taxpayer in the occupied premises. 7 (2) The credit allowed under this section for any taxable year shall 8 be deemed to be an overpayment of tax by the taxpayer to be credited or 9 refunded without interest, in accordance with the provisions of section 10 11-526 of this chapter. 11 (i) Relocation and employment assistance credit. (1) In addition to 12 any other credit allowed by this section, a taxpayer that has obtained 13 the certifications required by chapter six-B of title twenty-two of the 14 code of the preceding municipality shall be allowed a credit against the 15 tax imposed by this chapter. The amount of the credit shall be the 16 amount determined by multiplying five hundred dollars or, in the case of 17 a taxpayer that has obtained pursuant to chapter six-B of such title 18 twenty-two a certification of eligibility dated on or after July first, 19 nineteen hundred ninety-five, one thousand dollars or, in the case of an 20 eligible business that has obtained pursuant to chapter six-B of such 21 title twenty-two a certification of eligibility dated on or after July 22 first, two thousand, for a relocation to eligible premises located with- 23 in a revitalization area defined in subdivision (n) of section 22-621 of 24 the code of the preceding municipality, three thousand dollars, by the 25 number of eligible aggregate employment shares maintained by the taxpay- 26 er during the taxable year with respect to particular premises to which 27 the taxpayer has relocated; provided, however, with respect to a relo- 28 cation for which no application for a certificate of eligibility is 29 submitted prior to July first, two thousand three, to eligible premises 30 that are not within a revitalization area, if the date of such relo- 31 cation as determined pursuant to subdivision (j) of section 22-621 of 32 the code of the preceding municipality is before July first, nineteen 33 hundred ninety-five, the amount to be multiplied by the number of eligi- 34 ble aggregate employment shares shall be five hundred dollars, and with 35 respect to a relocation for which no application for a certificate of 36 eligibility is submitted prior to July first, two thousand three, to 37 eligible premises that are within a revitalization area, if the date of 38 such relocation as determined pursuant to subdivision (j) of such 39 section is before July first, nineteen hundred ninety-five, the amount 40 to be multiplied by the number of eligible aggregate employment shares 41 shall be five hundred dollars, and if the date of such relocation as 42 determined pursuant to subdivision (j) of such section is on or after 43 July first, nineteen hundred ninety-five, and before July first, two 44 thousand, one thousand dollars; provided, however, that no credit shall 45 be allowed for the relocation of any retail activity or hotel services; 46 provided, further, that no credit shall be allowed under this subdivi- 47 sion to any taxpayer that has elected pursuant to subdivision (d) of 48 section 22-622 of the code of the preceding municipality to take such 49 credit against a gross receipts tax imposed under chapter eleven of this 50 title; and provided that in the case of an eligible business that has 51 obtained pursuant to chapter six-B of such title twenty-two certif- 52 ications of eligibility for more than one relocation, the portion of the 53 total amount of eligible aggregate employment shares to be multiplied by 54 the dollar amount specified in this paragraph for each such certif- 55 ication of a relocation shall be the number of total attributed eligible 56 aggregate employment shares determined with respect to such relocationS. 8474 357 1 pursuant to subdivision (o) of section 22-621 of the code of the preced- 2 ing municipality. For purposes of this subdivision, the terms "eligible 3 aggregate employment shares," "relocate," "retail activity" and "hotel 4 services" shall have the meanings ascribed by section 22-621 of the code 5 of the preceding municipality. 6 (2) The credit allowed under this subdivision with respect to eligible 7 aggregate employment shares maintained with respect to particular prem- 8 ises to which the taxpayer has relocated shall be allowed for the first 9 taxable year during which such eligible aggregate employment shares are 10 maintained with respect to such premises and for any of the twelve 11 succeeding taxable years during which eligible aggregate employment 12 shares are maintained with respect to such premises; provided that the 13 credit allowed for the twelfth succeeding taxable year shall be calcu- 14 lated by multiplying the number of eligible aggregate employment shares 15 maintained with respect to such premises in the twelfth succeeding taxa- 16 ble year by the lesser of one and a fraction the numerator of which is 17 such number of days in the taxable year of relocation less the number of 18 days the eligible business maintained employment shares in the eligible 19 premises in the taxable year of relocation and the denominator of which 20 is the number of days in such twelfth succeeding taxable year during 21 which such eligible aggregate employment shares are maintained with 22 respect to such premises. Except as provided in paragraph four of this 23 subdivision, if the amount of the credit allowable under this subdivi- 24 sion for any taxable year exceeds the tax imposed for such year, the 25 excess may be carried over, in order, to the five immediately succeeding 26 taxable years and, to the extent not previously deductible, may be 27 deducted from the taxpayer's tax for such years. 28 (3) The credit allowable under this subdivision shall be deducted 29 after the credits allowed by subdivisions (b) and (j) of this section, 30 but prior to the deduction of any other credit allowed by this section. 31 (4) In the case of a taxpayer that has obtained a certification of 32 eligibility pursuant to chapter six-B of title twenty-two of the code of 33 the preceding municipality dated on or after July first, two thousand 34 for a relocation to eligible premises located within the revitalization 35 area defined in subdivision (n) of section 22-621 of the code of the 36 preceding municipality, the credits allowed under this subdivision, or 37 in the case of a taxpayer that has relocated more than once, the portion 38 of such credits attributed to such certification of eligibility pursuant 39 to paragraph one of this subdivision, against the tax imposed by this 40 chapter for the taxable year of such relocation and for the four taxable 41 years immediately succeeding the taxable year of such relocation, shall 42 be deemed to be overpayments of tax by the taxpayer to be credited or 43 refunded, without interest, in accordance with the provisions of section 44 11-526 of this chapter. For such taxable years, such credits or portions 45 thereof may not be carried over to any succeeding taxable year; 46 provided, however, that this paragraph shall not apply to any relocation 47 for which an application for a certification of eligibility was not 48 submitted prior to July first, two thousand three, unless the date of 49 such relocation is on or after July first, two thousand. 50 (j) (1) If a partner in an unincorporated business is taxable under 51 this chapter and is required to include in unincorporated business taxa- 52 ble income his, her or its distributive share of income, gain, loss and 53 deductions of, or guaranteed payments from, such unincorporated busi- 54 ness, such partner shall be allowed a credit against the tax imposed by 55 this chapter equal to the lesser of the amounts determined in subpara- 56 graphs (A) and (B) of this paragraph:S. 8474 358 1 (A) The amount determined in this subparagraph is the product of (i) 2 the sum of (I) the tax imposed by this chapter on the unincorporated 3 business for its taxable year ending within or with the taxable year of 4 the partner and paid by the unincorporated business and (II) the amount 5 of any credit or credits taken by the unincorporated business under this 6 section (except the credit allowed by subdivision (b) of this section) 7 for its taxable year ending within or with the taxable year of the part- 8 ner, to the extent that such credits do not reduce such unincorporated 9 business's tax below zero, and (ii) a fraction, the numerator of which 10 is the net total of the partner's distributive share of income, gain, 11 loss and deductions of, and guaranteed payments from, the unincorporated 12 business for such taxable year, and the denominator of which is the sum, 13 for such taxable year, of the net total distributive shares of income, 14 gain, loss and deductions of, and guaranteed payments to, all partners 15 in the unincorporated business for whom or which such net total, as 16 separately determined for each partner, is greater than zero. 17 (B) The amount determined in this subparagraph is the difference 18 between (i) the tax computed pursuant to this chapter on the unincorpo- 19 rated business taxable income of the partner, without allowance of any 20 credits allowed by this section, and (ii) the tax so computed, deter- 21 mined as if the partner had no such distributive share or guaranteed 22 payments with respect to the unincorporated business, provided, however, 23 that the amounts computed in clauses (i) and (ii) of this subparagraph 24 shall be computed with the following modifications: 25 (I) such amounts shall be computed without taking into account any 26 carryforward or carryback by the partner of a net operating loss; 27 (II) if, prior to taking into account any distributive share or guar- 28 anteed payments from any unincorporated business or any net operating 29 loss carryforward or carryback, the unincorporated business taxable 30 income of the partner is less than zero, such unincorporated business 31 taxable income shall be treated as zero; and 32 (III) if such partner's net total distributive share of income, gain, 33 loss and deductions of, and guaranteed payments from, any unincorporated 34 business is less than zero, such net total shall be treated as zero. The 35 amount determined in this subparagraph shall not be less than zero. 36 (2) (A) Notwithstanding anything to the contrary in paragraph one of 37 this subdivision, the credit or the sum of the credits that may be taken 38 by a partner for a taxable year under this subdivision with respect to 39 an unincorporated business or unincorporated businesses in which he, she 40 or it is a partner shall not exceed the tax imposed on the unincorporat- 41 ed business taxable income of such partner under this chapter for such 42 taxable year reduced by the credit allowed under subdivision (b) of this 43 section. If the credit allowed under paragraph one of this subdivision 44 or the sum of such credits exceeds such tax as so reduced, the amount of 45 the excess may be carried forward, in order, to each of the seven imme- 46 diately succeeding taxable years and, to the extent not previously 47 taken, shall be allowed as a credit in each of such years, provided, the 48 credit determined for the taxable year under paragraph one of this 49 subdivision shall be taken before taking any credit carryforward pursu- 50 ant to this paragraph and the credit carryforward attributable to the 51 earliest taxable year shall be taken before taking a credit carryforward 52 attributable to a subsequent taxable year. 53 (B) Notwithstanding anything to the contrary in subparagraph (A) of 54 this paragraph, in the case of a partner which is a partnership, no 55 credit carryforward to any taxable year shall be allowed unless one or 56 more of the partners therein during such taxable year were personsS. 8474 359 1 having a proportionate interest or interests, amounting to at least 2 eighty percent of all such interests, in the unincorporated business 3 gross income and unincorporated business deductions of the partnership 4 which was allowed the credit for which a carryforward is claimed. In 5 such event, the carryforward allowable on account of such credit shall 6 not exceed the percentage of the amount otherwise allowable, determined 7 by dividing (i) the sum of the proportionate interests in the unincorpo- 8 rated business gross income and unincorporated business deductions of 9 the partnership, for the year to which the credit is carried forward, 10 attributable to such partners, by (ii) the sum of such proportionate 11 interests owned by all partners for such taxable year. The amount by 12 which the carryforward otherwise allowable exceeds the amount allowable 13 pursuant to this subparagraph shall not be a carryforward to any other 14 taxable year. 15 (3) The credit allowed under this subdivision shall not be allowed to 16 a partner in an unincorporated business with respect to any tax paid by 17 the unincorporated business under this chapter for any taxable year 18 beginning before July first, nineteen hundred ninety-four. 19 (4) Notwithstanding anything to the contrary, the credit allowable 20 under this subdivision shall be taken after the credit allowed by subdi- 21 vision (b) of this section is taken, but before any other credit allowed 22 by this section is taken. 23 (5) The commissioner of finance of the city of Staten Island shall 24 convene a working group, consisting of representatives of the department 25 of finance of the city of Staten Island and representatives of affected 26 industries, and other persons the commissioner deems appropriate, to 27 study the treatment under the unincorporated business tax of income from 28 investment and real estate activities and the impact of the credit 29 permitted by this subdivision, including but not limited to cases where 30 interests in a taxpayer are held by another taxpayer subject to tax on 31 unincorporated business taxable income and the first taxpayer is enti- 32 tled to claim a deduction for a net operating loss carryover and the 33 second is not entitled to a corresponding deduction with the result, in 34 certain cases, that the net income allocated to the second taxpayer may 35 be subject to an effective rate of tax in excess of the rate imposed by 36 this chapter. In addition, the working group shall also study the tax 37 treatment of parking garages which are open or available to the general 38 public and which also provide available space to tenants. In conducting 39 such study, such working group shall take into account such factors as 40 economic development, tax administration and other goals of tax policy 41 and shall consider alternatives that would reduce disincentives for 42 investing in corporations and other entities engaged in business in the 43 city of Staten Island, such as exempting income from investment activ- 44 ities from the tax on unincorporated business taxable income. The 45 commissioner shall prepare a report based on the deliberations of the 46 working group on or before April fifteenth, nineteen hundred ninety- 47 five. 48 (k) Credit relating to certain sales and compensating use taxes on 49 certain services. (1) In addition to any other credit allowed by this 50 section, a taxpayer shall be allowed a credit against the tax imposed by 51 this chapter to be credited or refunded in the manner hereinafter 52 provided in this subdivision. The amount of such credit shall be equal 53 to the amount of sales and compensating use taxes imposed by section 54 eleven hundred seven of the tax law during the taxpayer's taxable year, 55 and the amount of any interest imposed in connection therewith, which 56 was paid after January first, nineteen hundred ninety-five, less anyS. 8474 360 1 credit or refund of such taxes (or such interest), with respect to the 2 purchase or use by the taxpayer of the services described in subdivision 3 (b) of section eleven hundred five-b of the tax law. 4 (2) The credit allowed under this subdivision for any taxable year 5 shall be deemed to be an overpayment of tax by the taxpayer to be cred- 6 ited or refunded, without interest, in accordance with the provisions of 7 section 11-526 of this chapter. 8 (3) Where the taxpayer receives a refund or credit of any tax imposed 9 under section eleven hundred seven of the tax law, or of any interest 10 imposed in connection therewith, for which the taxpayer had claimed a 11 credit under this subdivision in a prior taxable year, the amount of 12 such tax, or such interest, refund or credit shall be added to the tax 13 imposed by this chapter, and such amount shall be subtracted in comput- 14 ing unincorporated business taxable income for the taxable year. 15 (l) Lower Manhattan relocation and employment assistance credit. (1) 16 In addition to any other credit allowed by this section, a taxpayer that 17 has obtained the certifications required by chapter six-C of title twen- 18 ty-two of the code of the preceding municipality shall be allowed a 19 credit against the tax imposed by this chapter. The amount of the credit 20 shall be the amount determined by multiplying three thousand dollars by 21 the number of eligible aggregate employment shares maintained by the 22 taxpayer during the taxable year with respect to eligible premises to 23 which the taxpayer has relocated; provided, however, that no credit 24 shall be allowed for the relocation of any retail activity or hotel 25 services; provided, further, that no credit shall be allowed under this 26 subdivision to any taxpayer that has elected pursuant to subdivision (d) 27 of section 22-624 of the code of the preceding municipality to take such 28 credit against a gross receipts tax imposed under chapter eleven of this 29 title. For purposes of this subdivision, the terms "eligible aggregate 30 employment shares", "eligible premises", "relocate", "retail activity" 31 and "hotel services" shall have the meanings ascribed by section 22-623 32 of the code of the preceding municipality. 33 (2) The credit allowed under this subdivision with respect to eligible 34 aggregate employment shares maintained with respect to eligible premises 35 to which the taxpayer has relocated shall be allowed for the taxable 36 year of the relocation and for any of the twelve succeeding taxable 37 years during which eligible aggregate employment shares are maintained 38 with respect to eligible premises; provided that the credit allowed for 39 the twelfth succeeding taxable year shall be calculated by multiplying 40 the number of eligible aggregate employment shares maintained with 41 respect to eligible premises in the twelfth succeeding taxable year by 42 the lesser of one and a fraction the numerator of which is such number 43 of days in the taxable year of relocation less the number of days the 44 taxpayer maintained employment shares in eligible premises in the taxa- 45 ble year of relocation and the denominator of which is the number of 46 days in such twelfth succeeding taxable year during which such eligible 47 aggregate employment shares are maintained with respect to such prem- 48 ises. 49 (3) Except as provided in paragraph four of this subdivision, if the 50 amount of the credit allowable under this subdivision for any taxable 51 year exceeds the tax imposed for such year, the excess may be carried 52 over, in order, to the five immediately succeeding taxable years and, to 53 the extent not previously deductible, may be deducted from the taxpay- 54 er's tax for such years. 55 (4) The credits allowed under this subdivision, against the tax 56 imposed by this chapter for the taxable year of the relocation and forS. 8474 361 1 the four taxable years immediately succeeding the taxable year of such 2 relocation, shall be deemed to be overpayments of tax by the taxpayer to 3 be credited or refunded, without interest, in accordance with the 4 provisions of section 11-526 of this chapter. For such taxable years, 5 such credits or portions thereof may not be carried over to any succeed- 6 ing taxable year. 7 (5) The credit allowable under this subdivision shall be deducted 8 after the credits allowed by subdivisions (b), (i) and (j) of this 9 section, but prior to the deduction of any other credit allowed by this 10 section. 11 (n) Industrial business zone tax credit. (1) For taxable years begin- 12 ning on or after January first, two thousand six, in addition to any 13 other credit allowed by this section, an eligible business that first 14 enters into a binding contract on or after July first, two thousand five 15 to purchase or lease eligible premises to which it relocates shall be 16 allowed a one-time credit against the tax imposed by this chapter to be 17 credited or refunded in the manner hereinafter provided in this subdivi- 18 sion. The amount of such credit shall be one thousand dollars per full- 19 time employee; provided, however, that the amount of such credit shall 20 not exceed the lesser of actual relocation costs or one hundred thousand 21 dollars. 22 (2) When used in this subdivision, the following terms shall have the 23 following meanings: 24 "Eligible business" means any business subject to tax under this chap- 25 ter that (A) has been conducting substantial business operations and 26 engaging primarily in industrial and manufacturing activities at one or 27 more locations within the city of Staten Island or outside the state of 28 New York continuously during the twenty-four consecutive full months 29 immediately preceding relocation, (B) has leased the premises from which 30 it relocates continuously during the twenty-four consecutive full months 31 immediately preceding relocation, (C) first enters into a binding 32 contract on or after July first, two thousand five to purchase or lease 33 eligible premises to which such business will relocate, and (D) will be 34 engaged primarily in industrial and manufacturing activities at such 35 eligible premises. 36 "Eligible premises" means premises located entirely within an indus- 37 trial business zone. For any eligible business, an industrial business 38 zone tax credit shall not be granted with respect to more than one 39 eligible premises. 40 "Full-time employee" means (A) one person gainfully employed in an 41 eligible premises by an eligible business where the number of hours 42 required to be worked by such person is not less than thirty-five hours 43 per week; or (B) two persons gainfully employed in an eligible premises 44 by an eligible business where the number of hours required to be worked 45 by each such person is more than fifteen hours per week but less than 46 thirty-five hours per week. 47 "Industrial business zone" means an area within the city of Staten 48 Island established pursuant to section 22-626 of the code of the preced- 49 ing municipality. 50 "Industrial business zone tax credit" means a credit, as provided for 51 in this subdivision, against a tax imposed under this chapter. 52 "Industrial and manufacturing activities" means activities involving 53 the assembly of goods to create a different article, or the processing, 54 fabrication, or packaging of goods. Industrial and manufacturing activ- 55 ities shall not include waste management or utility services.S. 8474 362 1 "Relocation" means the physical relocation of furniture, fixtures, 2 equipment, machinery and supplies directly to an eligible premises, from 3 one or more locations of an eligible business, including at least one 4 location at which such business conducts substantial business operations 5 and engages primarily in industrial and manufacturing activities. For 6 purposes of this subdivision, the date of relocation shall be (A) the 7 date of the completion of the relocation to the eligible premises or (B) 8 ninety days from the commencement of the relocation to the eligible 9 premises, whichever is earlier. 10 "Relocation costs" means costs incurred in the relocation of such 11 furniture, fixtures, equipment, machinery and supplies, including, but 12 not limited to, the cost of dismantling and reassembling equipment and 13 the cost of floor preparation necessary for the reassembly of the equip- 14 ment. Relocation costs shall include only such costs that are incurred 15 during the ninety-day period immediately following the commencement of 16 the relocation to an eligible premises. Relocation costs shall not 17 include any costs for structural or capital improvements or items 18 purchased in connection with the relocation. 19 (3) The credit allowed under this subdivision for any taxable year 20 shall be deemed to be an overpayment of tax by the taxpayer to be cred- 21 ited or refunded without interest, in accordance with the provisions of 22 section 11-526 of this chapter. 23 (4) The number of full-time employees for the purposes of calculating 24 an industrial business zone tax credit shall be the average number of 25 full-time employees, calculated on a weekly basis, employed in the 26 eligible premises by the eligible business in the fifty-two week period 27 immediately following relocation. 28 (5) The credit allowed under this subdivision must be taken by the 29 taxpayer in the taxable year in which such fifty-two week period ends. 30 (6) For the purposes of calculating entire net income in the taxable 31 year that an industrial business zone tax credit is allowed, a taxpayer 32 must add back the amount of the credit allowed under this subdivision, 33 to the extent of any relocation costs deducted in the current taxable 34 year or a prior taxable year in calculating federal taxable income. 35 (7) The credit allowed under this subdivision shall not be granted for 36 an eligible business for more than one relocation. Notwithstanding the 37 foregoing, an industrial business zone tax credit allowed under this 38 subdivision shall not be granted if the eligible business receives bene- 39 fits pursuant to chapter six-B or six-C of title twenty-two of the code 40 of the preceding municipality, through a grant program administered by 41 the business relocation assistance corporation, or through the Staten 42 Island city printers relocation fund grant. 43 (8) The commissioner of finance is authorized to promulgate rules and 44 regulations and to prescribe forms necessary to effectuate the purposes 45 of this subdivision. 46 The commissioner of finance is empowered to promulgate rules and regu- 47 lations and to prescribe the form of application to be used. 48 (B) Definitions: When used in this section, "Employment Opportunity" 49 means the creation of a full time position of gainful employment for an 50 industrial or commercial employee and the actual hiring of such employee 51 for the said position. 52 "Industrial Employee" means one engaged in the manufacture or assembl- 53 ing of tangible goods or the processing of raw materials. 54 "Commercial Employee" means one engaged in the buying, selling or 55 otherwise providing of goods or services other than on a retail basis.S. 8474 363 1 "Retail" means the selling or otherwise disposing of tangible goods 2 directly to the ultimate user or consumer. 3 "Full Time Position" means the hiring of an industrial or commercial 4 employee in a position of gainful employment where the number of hours 5 worked by such employee is not less than thirty hours during any given 6 work week. 7 "Employment Opportunity Relocation Costs" means the costs incurred by 8 the taxpayer in moving furniture, files, papers and office equipment 9 into the city from a location outside the state; the costs incurred by 10 the taxpayer in the moving from a location outside the state; the costs 11 of installation of telephones and other communications equipment 12 required as a result of the relocation to the city from a location 13 outside the state; the cost incurred in the purchase of office furniture 14 and fixtures required as a result of the relocation to the city from a 15 location outside the state; and the cost of renovation of the premises 16 to be occupied as a result of the relocation provided, however, that 17 such renovation costs shall be allowable only to the extent that they do 18 not exceed seventy-five cents per square foot of the total area utilized 19 by the taxpayer in the occupied premises. 20 (2) The credit allowed under this section for any taxable year shall 21 be deemed to be an overpayment of tax by the taxpayer to be credited or 22 refunded without interest, in accordance with the provisions of section 23 11-526 of this chapter. 24 (o) Biotechnology credit. (a)(1) A taxpayer that is a qualified emerg- 25 ing technology company, engages in biotechnologies, and meets the eligi- 26 bility requirements of this subdivision, shall be allowed a credit 27 against the tax imposed by this subchapter. The amount of credit shall 28 be equal to the sum of the amounts specified in subparagraphs three, 29 four and five of this paragraph, subject to the limitations in subpara- 30 graph seven of this paragraph and paragraph (b) of this subdivision. For 31 the purposes of this subdivision, "qualified emerging technology compa- 32 ny" shall mean a company located in city: (A) whose primary products or 33 services are classified as emerging technologies and whose total annual 34 product sales are ten million dollars or less; or (B) a company that has 35 research and development activities in city and whose ratio of research 36 and development funds to net sales equals or exceeds the average ratio 37 for all surveyed companies classified as determined by the National 38 Science Foundation in the most recent published results from its Survey 39 of Industry Research and Development, or any comparable successor survey 40 as determined by the department, and whose total annual product sales 41 are ten million dollars or less. For the purposes of this subdivision, 42 the definition of research and development funds shall be the same as 43 that used by the National Science Foundation in the aforementioned 44 survey. For the purposes of this subdivision, "biotechnologies" shall 45 mean the technologies involving the scientific manipulation of living 46 organisms, especially at the molecular and/or the sub-molecular genetic 47 level, to produce products conducive to improving the lives and health 48 of plants, animals, and humans; and the associated scientific research, 49 pharmacological, mechanical, and computational applications and services 50 connected with these improvements. Activities included with such appli- 51 cations and services shall include, but not be limited to, alternative 52 mRNA splicing, DNA sequence amplification, antigenetic switching bioaug- 53 mentation, bioenrichment, bioremediation, chromosome walking, cytogenet- 54 ic engineering, DNA diagnosis, fingerprinting, and sequencing, electro- 55 poration, gene translocation, genetic mapping, site-directedS. 8474 364 1 mutagenesis, bio-transduction, bio-mechanical and bio-electrical engi- 2 neering, and bio-informatics. 3 (2) An eligible taxpayer shall (A) have no more than one hundred full- 4 time employees, of which at least seventy-five percent are employed in 5 the city, (B) have a ratio of research and development funds to net 6 sales, as referred to in section thirty-one hundred two-e of the public 7 authorities law, which equals or exceeds six percent during the calendar 8 year ending with or within the taxable year for which the credit is 9 claimed, and (C) have gross revenues, along with the gross revenues of 10 its "affiliates" and "related members" not exceeding twenty million 11 dollars for the calendar year immediately preceding the calendar year 12 ending with or within the taxable year for which the credit is claimed. 13 For the purposes of this subdivision, "affiliates" shall mean those 14 corporations that are members of the same affiliated group, as defined 15 in section fifteen hundred four of the internal revenue code, as the 16 taxpayer. For the purposes of this subdivision, "related members" shall 17 mean a person, corporation, or other entity, including an entity that is 18 treated as a partnership or other pass-through vehicle for purposes of 19 federal taxation, whether such person, corporation or entity is a 20 taxpayer or not, where one such person, corporation or entity, or set of 21 related persons, corporations or entities, directly or indirectly owns 22 or controls a controlling interest in another entity. Such entity or 23 entities may include all taxpayers under chapters six, eleven and seven- 24 teen of this title, and subchapters two and three of this chapter. A 25 controlling interest shall mean, in the case of a corporation, either 26 thirty percent or more of the total combined voting power of all classes 27 of stock of such corporation, or thirty percent or more of the capital, 28 profits or beneficial interest in such voting stock of such corporation; 29 and in the case of a partnership, association, trust or other entity, 30 thirty percent or more of the capital, profits or beneficial interest in 31 such partnership, association, trust or other entity. 32 (3) An eligible taxpayer shall be allowed a credit for eighteen per 33 centum of the cost or other basis for federal income tax purposes of 34 research and development property that is acquired by the taxpayer by 35 purchase as defined in section 179(d) of the internal revenue code and 36 placed in service during the calendar year that ends with or within the 37 taxable year for which the credit is claimed. Provided, however, for the 38 purposes of this paragraph only, an eligible taxpayer shall be allowed a 39 credit for such percentage of the (A) cost or other basis for federal 40 income tax purposes for property used in the testing or inspection of 41 materials and products, (B) the costs or expenses associated with quali- 42 ty control of the research and development, (C) fees for use of sophis- 43 ticated technology facilities and processes, (D) fees for the production 44 or eventual commercial distribution of materials and products resulting 45 from the activities of an eligible taxpayer as long as such activities 46 fall under activities relating to biotechnologies. The costs, expenses 47 and other amounts for which a credit is allowed and claimed under this 48 paragraph shall not be used in the calculation of any other credit 49 allowed under this subchapter. For the purposes of this subdivision, 50 "research and development property" shall mean property that is used for 51 purposes of research and development in the experimental or laboratory 52 sense. Such purposes shall not be deemed to include the ordinary testing 53 or inspection of materials or products for quality control, efficiency 54 surveys, management studies, consumer surveys, advertising, promotions, 55 or research in connection with literary, historical or similar projects.S. 8474 365 1 (4) An eligible taxpayer shall be allowed a credit for nine per centum 2 of qualified research expenses paid or incurred by the taxpayer in the 3 calendar year ending with or within the taxable year for which the cred- 4 it is claimed. For the purposes of this subdivision, "qualified research 5 expenses" shall mean expenses associated with in-house research and 6 processes, and costs associated with the dissemination of the results of 7 the products that directly result from such research and development 8 activities; provided, however, that such costs shall not include adver- 9 tising or promotion through media. In addition, costs associated with 10 the preparation of patent applications, patent application filing fees, 11 patent research fees, patent examinations fees, patent post allowance 12 fees, patent maintenance fees, and grant application expenses and fees 13 shall qualify as qualified research expenses. In no case shall the cred- 14 it allowed under this paragraph apply to expenses for litigation or the 15 challenge of another entity's intellectual property rights, or for 16 contract expenses involving outside paid consultants. 17 (5) An eligible taxpayer shall be allowed a credit for qualified high- 18 technology training expenditures as described in this paragraph paid or 19 incurred by the taxpayer during the calendar year that ends with or 20 within the taxable year for which the credit is claimed. 21 (A) The amount of credit shall be one hundred percent of the training 22 expenses described in subparagraph (C) of this paragraph, subject to a 23 limitation of no more than four thousand dollars per employee per calen- 24 dar year for such training expenses. 25 (B) Qualified high-technology training shall include a course or 26 courses taken and satisfactorily completed by an employee of the taxpay- 27 er at an accredited, degree granting post-secondary college or universi- 28 ty in city that (i) directly relates to biotechnology activities, and 29 (ii) is intended to upgrade, retrain or improve the productivity or 30 theoretical awareness of the employee. Such course or courses may 31 include, but are not limited to, instruction or research relating to 32 techniques, meta, macro, or micro-theoretical or practical knowledge 33 bases or frontiers, or ethical concerns related to such activities. Such 34 course or courses shall not include classes in the disciplines of 35 management, accounting or the law or any class designed to fulfill the 36 discipline specific requirements of a degree program at the associate, 37 baccalaureate, graduate or professional level of these disciplines. 38 Satisfactory completion of a course or courses shall mean the earning 39 and granting of credit or equivalent unit, with the attainment of a 40 grade of "B" or higher in a graduate level course or courses, a grade of 41 "C" or higher in an undergraduate level courses or courses, or a similar 42 measure of competency for a course that is not measured according to a 43 standard grade formula. 44 (C) Qualified high-technology training expenditures shall include 45 expenses for tuition and mandatory fees, software required by the insti- 46 tution, fees for textbooks or other literature required by the institu- 47 tion offering the course or courses, minus applicable scholarships and 48 tuition or fee waivers not granted by the taxpayer or any affiliates of 49 the taxpayer, that are paid or reimbursed by the taxpayer. Qualified 50 high-technology expenditures do not include room and board, computer 51 hardware or software not specifically assigned for such course or cours- 52 es, late-charges, fines or membership dues and similar expenses. Such 53 qualified expenditures shall not be eligible for the credit provided by 54 this section unless the employee for whom the expenditures are disbursed 55 is continuously employed by the taxpayer in a full-time, full-year posi- 56 tion primarily located at a qualified site during the period of suchS. 8474 366 1 coursework and lasting through at least one hundred eighty days after 2 the satisfactory completion of the qualifying course-work. Qualified 3 high-technology training expenditures shall not include expenses for 4 in-house or shared training outside of a city higher education institu- 5 tion or the use of consultants outside of credit granting courses, 6 whether such consultants function inside of such higher education insti- 7 tution or not. 8 (D) If a taxpayer relocates from an academic business incubator facil- 9 ity partnered with an accredited post-secondary education institution 10 located within city, which provides space and business support services 11 to taxpayers, to another site, the credit provided in this subdivision 12 shall be allowed for all expenditures referenced in subparagraph (C) of 13 this paragraph paid or incurred in the two preceding calendar years that 14 the taxpayer was located in such an incubator facility for employees of 15 the taxpayer who also relocate from said incubator facility to such city 16 site and are employed and primarily located by the taxpayer in city. 17 Such expenditures in the two preceding years shall be added to the 18 amounts otherwise qualifying for the credit provided by this subdivision 19 that were paid or incurred in the calendar year that the taxpayer relo- 20 cates from such a facility. Such expenditures shall include expenses 21 paid for an eligible employee who is a full-time, full-year employee of 22 said taxpayer during the calendar year that the taxpayer relocated from 23 an incubator facility notwithstanding (i) that such employee was 24 employed full or part-time as an officer, staff-person or paid intern of 25 the taxpayer when such taxpayer was located at such incubator facility 26 or (ii) that such employee was not continuously employed when such 27 taxpayer was located at the incubator facility during the one hundred 28 eighty day period referred to in subparagraph (C) of this paragraph, 29 provided such employee received wages or equivalent income for at least 30 seven hundred fifty hours during any twenty-four month period when the 31 taxpayer was located at the incubator facility. Such expenditures shall 32 include payments made to such employee after the taxpayer has relocated 33 from the incubator facility for qualified expenditures if such payments 34 are made to reimburse an employee for expenditures paid by the employee 35 during such two preceding years. The credit provided under this para- 36 graph shall be allowed in any taxable year that the taxpayer qualifies 37 as an eligible taxpayer. 38 (E) For purposes of this subdivision the term "academic year" shall 39 mean the annual period of sessions of a post-secondary college or 40 university. 41 (F) For the purposes of this subdivision the term "academic incubator 42 facility" shall mean a facility providing low-cost space, technical 43 assistance, support services and educational opportunities, including 44 but not limited to central services provided by the manager of the 45 facility to the tenants of the facility, to an entity located in city. 46 Such entity's primary activity must be in biotechnologies, and such 47 entity must be in the formative stage of development. The academic incu- 48 bator facility and the entity must act in partnership with an accredited 49 post-secondary college or university located in city. An academic incu- 50 bator facility's mission shall be to promote job creation, entrepreneur- 51 ship, technology transfer, and provide support services to incubator 52 tenants, including, but not limited to, business planning, management 53 assistance, financial-packaging, linkages to financing services, and 54 coordinating with other sources of assistance. 55 (6) An eligible taxpayer may claim credits under this subdivision for 56 three consecutive years. In no case shall the credit allowed by thisS. 8474 367 1 subdivision to a taxpayer exceed two hundred fifty thousand dollars per 2 calendar year for eligible expenditures made during such calendar year. 3 (7) The credit allowed under this subdivision for any taxable year 4 shall not reduce the tax due for such year to less than the amount 5 computed in subdivision (a) of this section. Provided, however, if the 6 amount of credit allowed under this subdivision for any taxable year 7 reduces the tax to such amount, any amount of credit not deductible in 8 such taxable year shall be treated as an overpayment of tax to be cred- 9 ited or refunded in accordance with the provisions of section 11-526 of 10 this chapter; provided, however, that notwithstanding the provisions of 11 section 11-528 of this chapter, no interest shall be paid thereon. 12 (8) The credit allowed under this subdivision shall only be allowed 13 for taxable years beginning on or after January first, two thousand ten 14 and before January first, two thousand nineteen. 15 (b)(1) The percentage of the credit allowed to a taxpayer under this 16 subdivision in any calendar year shall be: 17 (A) If the average number of individuals employed full time by a 18 taxpayer in the city during the calendar year that ends with or within 19 the taxable year which the credit is claimed is at least one hundred 20 five percent of the taxpayer's base year employment, one hundred 21 percent, except that in no case shall the credit allowed under this 22 clause exceed two hundred fifty thousand dollars per calendar year. 23 Provided, however, the increase in base year employment shall not apply 24 to a taxpayer allowed a credit under this subdivision that was (I) 25 located outside of the city, (II) not doing business, or (III) did not 26 have any employees, in the year preceding the first year that the credit 27 is claimed. Any such taxpayer shall be eligible for one hundred percent 28 of the credit for the first calendar year that ends with or within the 29 taxable year for which the credit is claimed, provided that such taxpay- 30 er locates in the city, begins doing business in the city or hires 31 employees in the city during such calendar year and is otherwise eligi- 32 ble for the credit pursuant to the provisions of this subdivision. 33 (B) If the average number of individuals employed full time by a 34 taxpayer in the city during the calendar year that ends with or within 35 the taxable year for which the credit is claimed is less than one 36 hundred five percent of the taxpayer's base year employment, fifty 37 percent, except that in no case shall the credit allowed under this 38 clause exceed one hundred twenty five thousand dollars per calendar 39 year. In the case of an entity located in city receiving space and busi- 40 ness support services by an academic incubator facility, if the average 41 number of individuals employed full time by such entity in the city 42 during the calendar year in which the credit allowed under this subdivi- 43 sion is claimed is less than one hundred five percent of the taxpayer's 44 base year employment, the credit shall be zero. 45 (2) For the purposes of this subdivision, "base year employment" means 46 the average number of individuals employed full-time by the taxpayer in 47 the city in the year preceding the first calendar year that ends with or 48 within the taxable year for which the credit is claimed. 49 (3) For the purposes of this subdivision, average number of individ- 50 uals employed full-time shall be computed by adding the number of such 51 individuals employed by the taxpayer at the end of each quarter during 52 each calendar year or other applicable period and dividing the sum so 53 obtained by the number of such quarters occurring within such calendar 54 year or other applicable period. 55 (4) Notwithstanding anything contained in this section to the contra- 56 ry, the credit provided by this subdivision shall be allowed against theS. 8474 368 1 taxes authorized by this chapter for the taxable year after reduction by 2 all other credits permitted by this chapter. 3 (p) Beer production credit. (1) A taxpayer subject to tax under this 4 chapter, that is registered as a distributor under article eighteen of 5 the tax law, and that produces sixty million or fewer gallons of beer in 6 this state in the taxable year, shall be allowed a credit against the 7 tax imposed by this chapter in the amount specified in paragraph two of 8 this subdivision. Provided, however, that no credit shall be allowed for 9 any beer produced in excess of fifteen million five hundred thousand 10 gallons in the taxable year. Notwithstanding anything in this title to 11 the contrary, if a partnership is allowed a credit under this subdivi- 12 sion, a taxpayer that is a partner in such partnership shall not be 13 allowed a credit under this subdivision for any taxable year that 14 includes the last day of the taxable year for which the partnership is 15 allowed such credit. 16 (2) The amount of the credit per taxpayer per taxable year for each 17 gallon of beer produced in the city on or after January first, two thou- 18 sand seventeen shall be determined as follows: 19 (i) for the first five hundred thousand gallons of beer produced in 20 the city in the taxable year, the credit shall equal twelve cents per 21 gallon; and 22 (ii) for each gallon of beer produced in the city in the taxable year 23 in excess of five hundred thousand gallons, the credit shall equal three 24 and eighty-six one hundredths cents per gallon. The credit allowed under 25 this subdivision for any taxable year shall be treated as an overpayment 26 of tax to be credited or refunded in accordance with the provisions of 27 section 11-526 of this chapter; provided, however, that notwithstanding 28 the provisions of section 11-528 of this chapter, no interest shall be 29 paid thereon. 30 (q) Credit for the provision of child care. In addition to any other 31 credit allowed under this section, a taxpayer whose application for a 32 credit authorized by section 11-144 of this title has been approved by 33 the department of finance shall be allowed a credit against the tax 34 imposed by this chapter. The amount of the credit shall be determined as 35 provided in such section. To the extent the amount of the credit allowed 36 by this subdivision exceeds the amount of tax due pursuant to this chap- 37 ter, as calculated without such credit, such excess amount shall be 38 treated as an overpayment of tax to be credited or refunded in accord- 39 ance with the provisions of section 11-526 of this chapter, provided, 40 however, that notwithstanding the requirements of section 11-528 of this 41 chapter to the contrary, no interest shall be paid thereon. 42 § 11-504 Taxable years to which tax applies; tax for taxable years 43 beginning prior to and ending after January first, nineteen hundred 44 sixty-six. (a) General. The tax imposed by section 11-503 of this 45 chapter, with any modification permitted by subdivision (b) of this 46 section, is imposed for each taxable year beginning with taxable years 47 ending on or after January first, nineteen hundred sixty-six. 48 (b) Alternate methods for determining tax for taxable years ending on 49 or after January first, nineteen hundred sixty-six. (1) The tax for any 50 taxable year ending on or after January first, nineteen hundred sixty- 51 six and before December thirty-first, nineteen hundred sixty-six, shall 52 be an amount equal to the tax which would have been imposed had section 53 11-503 of this chapter been in effect for the entire taxable year, 54 multiplied by the number of months, or major portions thereof, in such 55 taxable year which occur after December thirty-first, nineteen hundredS. 8474 369 1 sixty-five and divided by the number of months, or major portions there- 2 of, in such taxable year. 3 (2) In lieu of the method of computation of tax prescribed in para- 4 graph one of this subdivision, if the taxpayer maintained adequate 5 records for the portion of any taxable year ending on or after January 6 first, nineteen hundred sixty-six, and before December thirty-first, 7 nineteen hundred sixty-six, which falls within the calendar year nine- 8 teen hundred sixty-six, the tax for such taxable year at the election of 9 the taxpayer may be computed on the basis of the unincorporated business 10 taxable income which the taxpayer would have reported had he or she 11 filed a federal income tax return for a taxable year beginning January 12 first, nineteen hundred sixty-six and ending with the close of such 13 taxable year ending before December thirty-first, nineteen hundred 14 sixty-six. Such taxable year beginning January first, nineteen hundred 15 sixty-six and ending before December thirty-first, nineteen hundred 16 sixty-six shall be deemed, unless clearly indicated otherwise, to be the 17 taxable year of the taxpayer. For purposes of this paragraph, the unin- 18 corporated business exemptions allowable under section 11-510 of this 19 chapter, the credit allowable under subdivision (b) of section 11-503 of 20 this chapter and any net operating loss deduction as modified pursuant 21 to subdivision (b) of section 11-507 of this chapter shall each be 22 reduced by the same part of such exemptions, credit, or net operating 23 loss deduction, as the case may be, as the number of months, or major 24 portions thereof, in the taxable year occurring before January first, 25 nineteen hundred sixty-six is of the number of months, or major portions 26 thereof, in such taxable year. Except as provided in paragraph two, the 27 tax for such period ending before December thirty-first, nineteen 28 hundred sixty-six, shall be computed in accordance with the other 29 provisions of this chapter. 30 § 11-505 Unincorporated business taxable income. The unincorporated 31 business taxable income of an unincorporated business shall be the 32 excess of its unincorporated business entire net income allocated to the 33 city, less the amount of: 34 (1) Its deductions under section 11-509 of this chapter not subject to 35 allocation; and 36 (2) Its unincorporated business exemptions under section 11-510 of 37 this chapter. 38 § 11-506 Unincorporated business gross income. (a) (1) General. 39 Unincorporated business gross income of an unincorporated business means 40 the sum of the items of income and gain of the business, of whatever 41 kind and in whatever form paid, includible in gross income for the taxa- 42 ble year for federal income tax purposes, including income and gain from 43 any property employed in the business, or from liquidation of the busi- 44 ness, or from collection of installment obligations of the business, or 45 from the sale or other disposition by an unincorporated entity of an 46 interest in another unincorporated entity if and to the extent such 47 income or gain is attributable to a trade, business, profession or occu- 48 pation carried on in whole or in part in the city by such other unincor- 49 porated entity, with the modifications specified in this section. 50 (2) The character of a partner's distributive share of gross income, 51 gains, losses and deductions of an unincorporated entity shall be deter- 52 mined as if such gross income, gains, losses and deductions were real- 53 ized directly by such partner regardless of how the interest in the 54 unincorporated entity was acquired and regardless of whether the 55 distributive share is proportionate to the partner's capital interest in 56 the unincorporated entity, provided, however, this paragraph shall notS. 8474 370 1 apply to payments to a partner treated as occurring between the unincor- 2 porated entity and one who is not a partner under section seven hundred 3 seven of the internal revenue code, and provided, further, this para- 4 graph shall not affect the determination of whether gross income, gains, 5 losses or deductions of an unincorporated entity are subject to the tax 6 imposed by this chapter as realized from an unincorporated business. 7 (b) Modifications increasing federal gross income. There shall be 8 added to federal gross income of the business the following items 9 attributable to the business: 10 (1) Interest income on obligations of any state other than this state, 11 or of a political subdivision of any such other state unless created by 12 compact or agreement to which this state is a party. 13 (2) Interest or dividend income on obligations or securities of any 14 authority, commission, or instrumentality of the United States, which 15 the laws of the United States exempt from federal income tax but not 16 from state or local income taxes. 17 (3) In the case of a taxpayer who has exercised the election permitted 18 by subdivision (b) of section 11-509 of this chapter, if the property to 19 which such election relates was sold or otherwise disposed of during the 20 taxable year, the amount required by such subdivision to be added to 21 federal gross income. 22 (4) The entire amount allowable as an exclusion or deduction for stock 23 transfer taxes imposed by article twelve of the tax law in determining 24 federal gross income but only to the extent that such taxes are incurred 25 and paid in market making transactions. 26 (5) The amount allowed as an exclusion or deduction for sales and use 27 taxes imposed by section eleven hundred seven of the tax law in deter- 28 mining federal gross income but only such portion of such exclusion or 29 deduction which is not in excess of the amount of the credit allowed 30 pursuant to subdivision (d) of section 11-503 of this chapter. 31 (6) The amount allowed as an exclusion or deduction as rent in deter- 32 mining federal gross income but only such portion of such exclusion or 33 deduction which is not in excess of the amount of the credit allowed 34 pursuant to subdivision (e) of section 11-503 of this chapter. 35 (7) The amount allowed as an exclusion or deduction in determining 36 federal gross income but only such portion of such exclusion or 37 deduction which is not in excess of the amount of the credit allowed 38 pursuant to subdivision (f) of section 11-503 of this chapter. 39 (8) For taxable years beginning after December thirty-first, nineteen 40 hundred eighty-one, except with respect to property which is a qualified 41 mass commuting vehicle described in subparagraph (D) of paragraph eight 42 of subsection (f) of section one hundred sixty-eight of the internal 43 revenue code, relating to qualified mass commuting vehicles, any amount 44 which would properly be includible for federal income tax purposes had 45 the taxpayer not made the election permitted pursuant to such paragraph 46 eight as it was in effect for agreements entered into prior to January 47 first, nineteen hundred eighty-four. 48 (9) Upon the disposition of property to which subdivision (o) of 49 section 11-507 of this chapter applies, the amount, if any, by which the 50 aggregate of the amounts described in such subdivision fifteen attribut- 51 able to such property exceeds the aggregate of the amounts described in 52 subdivision (n) of section 11-507 of this chapter attributable to such 53 property. 54 (10) The amount allowed as an exclusion or deduction for sales and use 55 taxes imposed by section eleven hundred seven of the tax law in deter- 56 mining federal gross income, but only such portion of such exclusion orS. 8474 371 1 deduction which is not in excess of the amount of the credit allowed 2 pursuant to subdivision (g) of section 11-503 of this chapter. 3 (12) The amount allowed as an exclusion or deduction for sales and use 4 taxes imposed by section eleven hundred seven of the tax law, or for any 5 interest imposed in connection therewith, in determining federal gross 6 income, but only such portion of such exclusion or deduction which is 7 not in excess of the amount of the credit allowed pursuant to subdivi- 8 sion (k) of section 11-503 of this chapter. 9 (13) Notwithstanding any other provision of this chapter to the 10 contrary, the amount allowed as an exclusion or deduction in determining 11 federal gross income of any loss, including but not limited to, losses 12 from notional principal contracts, losses, other than as a dealer, from 13 the holding, sale, disposition, assumption, offset or termination of a 14 position in, property, as defined in paragraph one of subdivision (c) of 15 section 11-502 of this chapter, or other substantially similar losses 16 from ordinary and routine trading or investment activity to the extent 17 determined by the commissioner of finance, realized in connection with 18 activities described in paragraph two of subdivision (c) of section 19 11-502 of this chapter if, and to the extent that, such activities are 20 not deemed an unincorporated business carried on by the taxpayer pursu- 21 ant to the provisions of subdivision (c) of section 11-502 of this chap- 22 ter. 23 (14) Notwithstanding any other provision of this chapter to the 24 contrary, in the case of a taxpayer that is an unincorporated entity 25 described in subparagraph (B) of paragraph four of subdivision (c) of 26 section 11-502 of this chapter, the amount allowed as an exclusion or 27 deduction in determining federal gross income of any loss realized from 28 the sale or other disposition of an interest in another unincorporated 29 entity if, and to the extent that, such loss is attributable to activ- 30 ities of such other unincorporated entity not deemed an unincorporated 31 business carried on by the taxpayer pursuant to the provisions of subdi- 32 vision (c) of section 11-502 of this chapter. 33 (15) Notwithstanding any other provision of this chapter to the 34 contrary, the amount allowed as an exclusion or deduction in determining 35 federal gross income of any loss realized from the holding, leasing or 36 managing of real property if, and to the extent that, such holding, 37 leasing or managing of real property is not deemed an unincorporated 38 business carried on by the taxpayer pursuant to the provisions of subdi- 39 vision (d) of section 11-502 of this chapter. 40 (16) Notwithstanding any other provision of this chapter to the 41 contrary, the amount allowed as an exclusion or deduction in determining 42 federal gross income of any loss realized from the provision by an 43 owner, lessee or fiduciary holding, leasing or managing real property of 44 the service of parking, garaging or storing of motor vehicles on a 45 monthly or longer term basis to tenants at such real property if, and to 46 the extent that, the provision of such services to such tenants is not 47 deemed an unincorporated business carried on by the taxpayer pursuant to 48 the provisions of subdivision (d) of section 11-502 of this chapter. 49 (17) For taxable years beginning in two thousand nineteen and two 50 thousand twenty, the amount of the increase in the federal interest 51 deduction allowed pursuant to section 163(j)(10) of the internal revenue 52 code. 53 (18) Notwithstanding any other provision of this chapter to the 54 contrary, for taxable years beginning before January first, two thousand 55 twenty-one, the amount of increase in the federal deduction allowedS. 8474 372 1 pursuant to any amendment to section 461(l) of the internal revenue code 2 made after March first, two thousand twenty. 3 (c) Modifications reducing federal gross income. There shall be 4 subtracted from federal gross income of the business the following items 5 attributable to the business: 6 (1) Interest income on obligations of the United States and its 7 possessions to the extent includible in gross income for federal income 8 tax purposes; 9 (2) Interest or dividend income on obligations or securities of any 10 authority, commission or instrumentality of the United States to the 11 extent includible in gross income for federal income tax purposes but 12 exempt from state or local income taxes under the laws of the United 13 States; 14 (3) Interest or dividend income on obligations or securities to the 15 extent exempt from income tax under the laws of the city or this state 16 authorizing the issuance of such obligations or securities but includi- 17 ble in gross income for federal income tax purposes; 18 (3-a) Fifty percent of dividends to the extent includible in gross 19 income for federal income tax purposes and not subtracted under para- 20 graph two or three of this subdivision, provided, however, that there 21 shall be no subtraction pursuant to this paragraph for any portion of a 22 dividend from stock with respect to which a dividend deduction would be 23 disallowed by subsection (c) of section two hundred forty-six of the 24 internal revenue code if the unincorporated business were a corporation; 25 (4) The amount of any refund or credit for overpayment of income taxes 26 imposed by the city, this state or any other taxing jurisdiction, or the 27 tax imposed by article thirteen-A of the tax law, to the extent properly 28 included in gross income for federal tax purposes; 29 (5) With respect to gain derived from the sale or other disposition of 30 any property acquired prior to January first, nineteen hundred sixty- 31 six, except property described in subsections one and four of section 32 twelve hundred twenty-one of the internal revenue code, the difference 33 between: 34 (a) the amount of gain included in federal gross income with respect 35 to each such property, and 36 (b) the amount of gain, if smaller than the amount described in 37 subparagraph (a) of this paragraph, that would be included in federal 38 gross income with respect to each such property if the federal adjusted 39 basis of such property on the date of the sale or other disposition had 40 been equal to its fair market value on January first, nineteen hundred 41 sixty-six, or the date of its sale or other disposition prior to January 42 first, nineteen hundred sixty-six, plus or minus all adjustments to 43 basis made with respect to such property for federal income tax purposes 44 for periods on and after January first, nineteen hundred sixty-six; 45 provided, however, that the total modification provided by this subpara- 46 graph shall not exceed the taxpayer's net gain from the sale or other 47 disposition of all such property. 48 (6) For taxable years beginning after December thirty-first, nineteen 49 hundred eighty-one, except with respect to property which is a qualified 50 mass commuting vehicle described in subparagraph (D) of paragraph eight 51 of subsection (f) of section one hundred sixty-eight of the internal 52 revenue code, relating to qualified mass commuting vehicles, any amount 53 properly includible in federal gross income solely as a result of an 54 election made pursuant to the provisions of such paragraph eight as it 55 was in effect for agreements entered into prior to January first, nine- 56 teen hundred eighty-four.S. 8474 373 1 (7) Upon the disposition of property to which subdivision (o) of 2 section 11-507 of this chapter applies, the amount, if any, by which the 3 aggregate of the amounts described in subdivision (n) of section 11-507 4 of this chapter attributable to such property exceeds the aggregate of 5 the amounts described in subdivision (o) of section 11-507 of this chap- 6 ter attributable to such property. 7 (8) Notwithstanding any other provision of this chapter to the contra- 8 ry, the amount of any income or gain, to the extent includible in gross 9 income for federal income tax purposes, realized from the holding, leas- 10 ing or managing of real property if, and to the extent that, such hold- 11 ing, leasing or managing of real property is not deemed an unincorporat- 12 ed business carried on by the taxpayer pursuant to the provisions of 13 subdivision (d) of section 11-502 of this chapter. 14 (9) Notwithstanding any other provision of this chapter to the contra- 15 ry, the amount of any income or gain, to the extent includible in gross 16 income for federal income tax purposes, including but not limited to, 17 dividends, interest, payments with respect to securities loans, income 18 from notional principal contracts, or income and gains, other than as a 19 dealer, from the holding, sale, disposition, assumption, offset or 20 termination of a position in, property, as defined in paragraph one of 21 subdivision (c) of section 11-502 of this chapter, or other substantial- 22 ly similar income from ordinary and routine trading or investment activ- 23 ity to the extent determined by the commissioner of finance, realized in 24 connection with activities described in paragraph two of subdivision (c) 25 of section 11-502 of this chapter if, and to the extent that, such 26 activities are not deemed an unincorporated business carried on by the 27 taxpayer pursuant to the provisions of subdivision (c) of section 11-502 28 of this chapter. 29 (10) Notwithstanding any other provision of this chapter to the 30 contrary, in the case of a taxpayer that is an unincorporated entity 31 described in subparagraph (B) of paragraph four of subdivision (c) of 32 section 11-502 of this chapter, the amount of any income or gain, to the 33 extent includible in gross income for federal income tax purposes, real- 34 ized from the sale or other disposition of an interest in another unin- 35 corporated entity if, and to the extent that, such income or gain is 36 attributable to activities of such other unincorporated entity not 37 deemed an unincorporated business carried on by the taxpayer pursuant to 38 the provisions of subdivision (c) of section 11-502 of this chapter. 39 (11) Notwithstanding any other provision of this chapter to the 40 contrary, the amount of any income or gain, to the extent includible in 41 gross income for federal income tax purposes, realized from the 42 provision by an owner, lessee or fiduciary holding, leasing or managing 43 real property of the service of parking, garaging or storing of motor 44 vehicles on a monthly or longer term basis to tenants at such real prop- 45 erty if, and to the extent that, the provision of such services to such 46 tenants is not deemed an unincorporated business pursuant to the 47 provisions of subdivision (d) of section 11-502 of this chapter. 48 (12) The amount of any grant received through either the COVID-19 49 pandemic small business recovery grant program, pursuant to section 50 sixteen-ff of the New York state urban development corporation act, or 51 the small business resilience grant program administered by the depart- 52 ment of small business services, to the extent the amount of either such 53 grant is included in federal taxable income. 54 (d) Upon the disposition of property to which subdivisions (t) and (u) 55 of section 11-507 of this chapter apply, the amount of any gain or lossS. 8474 374 1 includible in entire net income shall be adjusted to reflect the modifi- 2 cations provided in such subdivisions attributable to such property. 3 (e) Related members expense add back. (1) Definitions. (A) Related 4 member. "Related member" means a related person as defined in subpara- 5 graph (c) of paragraph three of subsection (b) of section four hundred 6 sixty-five of the internal revenue code, except that "fifty percent" 7 shall be substituted for "ten percent". 8 (B) Effective rate of tax. "Effective rate of tax" means, as to any 9 city, the maximum statutory rate of tax imposed by the city on or meas- 10 ured by a related member's net income multiplied by the apportionment 11 percentage, if any, applicable to the related member under the laws of 12 said jurisdiction. For purposes of this definition, the effective rate 13 of tax as to any city is zero where the related member's net income tax 14 liability in said city is reported on a combined or consolidated return 15 including both the taxpayer and the related member where the reported 16 transactions between the taxpayer and the related member are eliminated 17 or offset. Also, for purposes of this definition, when computing the 18 effective rate of tax for a city in which a related member's net income 19 is eliminated or offset by a credit or similar adjustment that is 20 dependent upon the related member either maintaining or managing intan- 21 gible property or collecting interest income in such city, the maximum 22 statutory rate of tax imposed by such city shall be decreased to reflect 23 the statutory rate of tax that applies to the related member as effec- 24 tively reduced by such credit or similar adjustment. 25 (C) Royalty payments. Royalty payments are payments directly connected 26 to the acquisition, use, maintenance or management, ownership, sale, 27 exchange, or any other disposition of licenses, trademarks, copyrights, 28 trade names, trade dress, service marks, mask works, trade secrets, 29 patents and any other similar types of intangible assets as determined 30 by the commissioner of finance, and include amounts allowable as inter- 31 est deductions under section one hundred sixty-three of the internal 32 revenue code to the extent such amounts are directly or indirectly for, 33 related to or in connection with the acquisition, use, maintenance or 34 management, ownership, sale, exchange or disposition of such intangible 35 assets. 36 (D) Valid business purpose. A valid business purpose is one or more 37 business purposes, other than the avoidance or reduction of taxation, 38 which alone or in combination constitute the primary motivation for some 39 business activity or transaction, which activity or transaction changes 40 in a meaningful way, apart from tax effects, the economic position of 41 the taxpayer. The economic position of the taxpayer includes an increase 42 in the market share of the taxpayer, or the entry by the taxpayer into 43 new business markets. 44 (2) Royalty expense add backs. (A) For the purpose of computing unin- 45 corporated business entire net income, a taxpayer must add back royalty 46 payments directly or indirectly paid, accrued, or incurred in connection 47 with one or more direct or indirect transactions with one or more 48 related members during the taxable year to the extent deductible in 49 calculating federal taxable income. 50 (B) Exceptions. (i) The adjustment required in this subdivision shall 51 not apply to the portion of the royalty payment that the taxpayer estab- 52 lishes, by clear and convincing evidence of the type and in the form 53 specified by the commissioner of finance, meets all of the following 54 requirements: (I) the related member was subject to tax in this city or 55 another city within the United States or a foreign nation or some combi- 56 nation thereof on a tax base that included the royalty payment paid,S. 8474 375 1 accrued or incurred by the taxpayer; (II) the related member during the 2 same taxable year directly or indirectly paid, accrued or incurred such 3 portion to a person that is not a related member; and (III) the trans- 4 action giving rise to the royalty payment between the taxpayer and the 5 related member was undertaken for a valid business purpose. 6 (ii) The adjustment required in this subdivision shall not apply if 7 the taxpayer establishes, by clear and convincing evidence of the type 8 and in the form specified by the commissioner of finance, that: (I) the 9 related member was subject to tax on or measured by its net income in 10 this city or another city within the United States, or some combination 11 thereof; (II) the tax base for said tax included the royalty payment 12 paid, accrued or incurred by the taxpayer; and (III) the aggregate 13 effective rate of tax applied to the related member in those jurisdic- 14 tions is no less than eighty percent of the statutory rate of tax that 15 applied to the taxpayer under section 11-503 of this chapter for the 16 taxable year. 17 (iii) The adjustment required in this subdivision shall not apply if 18 the taxpayer establishes, by clear and convincing evidence of the type 19 and in the form specified by the commissioner of finance, that: (I) the 20 royalty payment was paid, accrued or incurred to a related member organ- 21 ized under the laws of a country other than the United States; (II) the 22 related member's income from the transaction was subject to a comprehen- 23 sive income tax treaty between such country and the United States; (III) 24 the related member was subject to tax in a foreign nation on a tax base 25 that included the royalty payment paid, accrued or incurred by the 26 taxpayer; (IV) the related member's income from the transaction was 27 taxed in such country at an effective rate of tax at least equal to that 28 imposed by this city; and (V) the royalty payment was paid, accrued or 29 incurred pursuant to a transaction that was undertaken for a valid busi- 30 ness purpose and using terms that reflect an arm's length relationship. 31 (iv) The adjustment required in this subdivision shall not apply if 32 the taxpayer and the commissioner of finance agree in writing to the 33 application or use of alternative adjustments or computations. The 34 commissioner of finance may, in his or her discretion, agree to the 35 application or use of alternative adjustments or computations when he or 36 she concludes that in the absence of such agreement the income of the 37 taxpayer would not be properly reflected. 38 (f) Upon the disposition of property to which subdivisions (w) and (x) 39 of section 11-507 of this chapter apply, the amount of any gain or loss 40 includible in unincorporated business gross income shall be adjusted to 41 reflect the modifications provided in such subdivisions attributable to 42 such property. 43 § 11-507 Unincorporated business deductions. The unincorporated busi- 44 ness deductions of an unincorporated business means the items of loss 45 and deduction directly connected with or incurred in the conduct of the 46 business, which are allowable for federal income tax purposes for the 47 taxable year, including losses and deductions connected with any proper- 48 ty employed in the business, with the following modifications: 49 (a) A deduction shall be allowed for charitable contributions of the 50 unincorporated business, to the extent that such contributions would be 51 deductible for federal income tax purposes if made by a corporation, but 52 not in excess of five per centum of the amount by which the unincorpo- 53 rated business gross income exceeds the sum of (A) the unincorporated 54 business deductions computed without the benefit of any deduction for 55 charitable contributions and (B) the deduction allowed under subdivisionS. 8474 376 1 (b) of section 11-509 of this chapter, where the election permitted by 2 such subdivision has been exercised. 3 (b) (1) A deduction shall be allowed for net operating losses incurred 4 by the unincorporated business, except as otherwise provided by para- 5 graph two of this subdivision, in an amount computed in the same manner 6 as the net operating loss deduction which would be allowed for the taxa- 7 ble year for federal income tax purposes if the unincorporated business 8 were an individual taxpayer, but determined solely by reference to the 9 unincorporated business gross income and unincorporated business 10 deductions, allocated to the city, of the unincorporated business; 11 provided, however, that such net operating loss deduction which would be 12 allowed for the taxable year for federal income tax purposes shall for 13 purposes of this paragraph be determined as if the unincorporated busi- 14 ness had elected under section one hundred seventy-two of the internal 15 revenue code to relinquish the entire carryback period with respect to 16 net operating losses, except with respect to the first ten thousand 17 dollars of each of such losses, sustained during taxable years ending 18 after June thirtieth, nineteen hundred eighty-nine. Such deduction shall 19 not include any net operating loss sustained during any taxable year 20 beginning prior to January first, nineteen hundred sixty-six and for the 21 purposes of this paragraph a net operating loss shall be determined 22 without regard to any deductions allowed pursuant to subdivision (b) of 23 section 11-509 of this chapter and any net operating loss for a taxable 24 year beginning in nineteen hundred eighty-one shall be computed without 25 regard to the deduction allowed with respect to recovery property under 26 section one hundred sixty-eight of the internal revenue code; in lieu of 27 such deduction, a taxpayer shall be allowed for such taxable year with 28 respect to such property the depreciation deduction allowable under 29 section one hundred sixty-seven of such internal revenue code as such 30 section was in full force and effect on December thirty-first, nineteen 31 hundred eighty. 32 (2) In the case of a partnership, no net operating loss carryback or 33 carryover to any taxable year shall be allowed unless one or more of the 34 partners during such taxable year were persons having a proportionate 35 interest or interests, amounting to at least eighty percent of all such 36 interests, in the unincorporated business gross income and unincorporat- 37 ed business deductions of the partnership which sustained the loss for 38 which a carryback or carryover is claimed. In such event, the carryback 39 or carryover allowable on account of such loss shall not exceed the 40 percentage of the amount otherwise allowable, determined by dividing (A) 41 the sum of the proportionate interests in the unincorporated business 42 gross income and unincorporated business deductions of the partnership, 43 for the year to which the loss is carried back or carried over, attrib- 44 utable to such partners, by (B) the sum of such proportionate interests 45 owned by all partners for such taxable year. The amount by which the 46 carryback or carryover otherwise allowable exceeds the amount allowable 47 pursuant to the preceding sentence shall not be a carryback or carryover 48 to any other taxable year. 49 (3) Notwithstanding any other provision of this chapter to the contra- 50 ry, for taxable years beginning before January first, two thousand twen- 51 ty-one, any amendment to section one hundred seventy-two of the internal 52 revenue code made after March first, two thousand twenty shall not apply 53 to this chapter. 54 (c) No deduction shall be allowed, except as provided in section 55 11-509 of this chapter for amounts paid or incurred to a proprietor or 56 partner for services or for use of capital.S. 8474 377 1 (d) No deduction shall be allowed for income taxes imposed by the 2 city, this state or any other taxing jurisdiction, or the tax imposed by 3 article thirteen-A of the tax law. 4 (e) No deduction shall be allowed for (A) interest on indebtedness 5 incurred or continued to purchase or carry obligations or securities the 6 interest on which is exempt from tax under this chapter; (B) expenses 7 paid or incurred for the production or collection of such income or the 8 management, conservation or maintenance of property held for the 9 production of such income; or (C) the amortizable bond premium on any 10 bond the interest income from which is so exempt. 11 (f) No deduction shall be allowed in respect of the excess of net 12 long-term capital gain over net short-term capital loss, but capital 13 losses incurred in the unincorporated business shall be treated as ordi- 14 nary losses and shall be allowed in full. 15 (g) In the case of a taxpayer who has exercised the election permitted 16 by subdivision (b) of section 11-509 of this chapter, no deduction shall 17 be allowed for expenditures with reference to the property to which such 18 election relates, or for depreciation of such property, except as 19 permitted by said subdivision. 20 (h) A deduction shall be allowed, to the extent not allowable for 21 federal income tax purposes, for (A) interest on indebtedness incurred 22 or continued to purchase or carry obligations or securities the interest 23 on which is subject to tax under this chapter but exempt from federal 24 income tax; (B) ordinary and necessary expenses paid or incurred during 25 the taxable year for the production or collection of such income or the 26 management, conservation or maintenance of property held for the 27 production of such income; and (C) the amortizable bond premium for the 28 taxable year on any bond the interest on which is subject to tax under 29 this chapter but exempt from federal income tax. 30 (i) At the election of the taxpayer, a deduction shall be allowed for 31 expenditures paid or incurred during the taxable year for the 32 construction, reconstruction, erection or improvement of industrial 33 waste treatment facilities and air pollution control facilities. 34 (1) (A) The term "industrial waste treatment facilities" shall mean 35 facilities for the treatment, neutralization or stabilization of indus- 36 trial waste, as the term "industrial waste" is defined in section 37 17-0105 of the environmental conservation law, from a point immediately 38 preceding the point of such treatment, neutralization or stabilization 39 to the point of disposal, including the necessary pumping and transmit- 40 ting facilities, but excluding such facilities installed for the primary 41 purpose of salvaging materials which are usable in the manufacturing 42 process or are marketable. 43 (B) The term "air pollution control facilities" shall mean facilities 44 which remove, reduce, or render less noxious air contaminants emitted 45 from an air contamination source, as the terms "air contaminant" and 46 "air contamination source" are defined in section 19-0107 of the envi- 47 ronmental conservation law, from a point immediately preceding the point 48 of such removal, reduction or rendering to the point of discharge of 49 air, meeting emission standards as established by the air pollution 50 control board, but excluding such facilities installed for the primary 51 purpose of salvaging materials which are usable in the manufacturing 52 process or are marketable and excluding those facilities which rely for 53 their efficacy on dilution, dispersion or assimilation of air contam- 54 inants in the ambient air after emission. 55 (2) However, such deduction shall be allowed only (A) with respect to 56 tangible property which is depreciable, pursuant to section one hundredS. 8474 378 1 sixty-seven of the internal revenue code, having a situs in the city and 2 used in the taxpayer's trade or business, the construction, recon- 3 struction, erection or improvement of which, in the case of industrial 4 waste treatment facilities, is initiated on or after January first, 5 nineteen hundred sixty-six, and only for expenditures paid or incurred 6 prior to January first, nineteen hundred seventy-two, or which, in the 7 case of air pollution control facilities, is initiated on or after Janu- 8 ary first, nineteen hundred sixty-six, and 9 (B) on condition that such facilities have been certified by the state 10 commissioner of environmental conservation or his or her designated 11 representative, in the same manner as provided in either section 17-0707 12 or 19-0309 of the environmental conservation law, as applicable, as 13 complying with the provision of the environmental conservation law, the 14 sanitary code and regulations, permits or orders promulgated pursuant 15 thereto, and 16 (C) on condition that for the taxable year and all succeeding taxable 17 years, no deduction for such expenditures or for depreciation of the 18 same property allowed for federal income tax purposes shall be allowed 19 under this chapter, except to the extent that the basis of the property 20 may be attributable to factors other than such expenditures, or in case 21 a deduction is allowable pursuant to this subdivision, for only a part 22 of such expenditures, on condition that any deduction allowed for feder- 23 al income tax purposes for such expenditures or for depreciation of the 24 same property be proportionately reduced in computing unincorporated 25 business deductions for the taxable year and all succeeding taxable 26 years, and 27 (D) where the election provided for in subdivision (b) of section 28 11-509 of this chapter has not been exercised in respect to the same 29 property. 30 (3) (A) If expenditures in respect to an industrial waste treatment 31 facility or an air pollution control facility have been deducted as 32 provided herein and if within ten years from the end of the taxable year 33 in which such deduction was allowed such property or any part thereof is 34 used for the primary purpose of salvaging materials which are usable in 35 the manufacturing process or are marketable, the taxpayer shall report 36 such change of use in its return for the first taxable year during which 37 it occurs, and the commissioner of finance may recompute the tax for the 38 year or years for which such deduction was allowed and any carryback or 39 carryover year, and may assess any additional tax resulting from such 40 recomputation within the time fixed by paragraph eight of subdivision 41 (c) of section 11-523 of this chapter. 42 (B) If a deduction is allowed as herein provided for expenditures paid 43 or incurred during any taxable year on the basis of a temporary certif- 44 icate of compliance issued pursuant to the public health law, and if the 45 taxpayer fails to obtain a permanent certificate of compliance upon 46 completion of the facilities with respect to which such temporary 47 certificate was issued, the taxpayer shall report such failure in its 48 report for the taxable year during which such facilities are completed, 49 and the commissioner of finance may recompute the tax for the year or 50 years for which such deduction was allowed and any carryback or carry- 51 over year, and may assess any additional tax resulting from such recom- 52 putation within the time fixed by paragraph eight of subdivision (c) of 53 section 11-523 of this chapter. 54 (4) In any taxable year when property is sold or otherwise disposed 55 of, with respect to which a deduction has been allowed pursuant to this 56 subdivision, such deduction shall be disregarded in computing gain orS. 8474 379 1 loss, and the gain or loss on the sale or other disposition of such 2 property shall be the gain or loss allowable for federal income tax 3 purposes for such taxable year. 4 (j) In the case of mines, oil and gas wells and other natural depos- 5 its, no deduction of any allowance for percentage depletion pursuant to 6 section six hundred thirteen or section six hundred thirteen A of the 7 internal revenue code of nineteen hundred fifty-four, as amended, shall 8 be allowed. However, an allowance for depletion with respect to such 9 property shall be deductible in the amount which would be allowable 10 under section six hundred eleven of such internal revenue code if such 11 deduction were computed without reference to such section six hundred 12 thirteen or section six hundred thirteen A of such code. With respect to 13 the computation of depletion pursuant to this section, the basis for 14 such computation for taxable years beginning in nineteen hundred seven- 15 ty-two shall be the federal basis. For subsequent taxable years, the 16 basis of such computation shall be reduced only by the deduction for the 17 allowance for depletion deductible pursuant to this section. In any 18 taxable year when any such property is sold or otherwise disposed of, 19 with respect to which a deduction has been allowed pursuant to this 20 subdivision, the gain or loss thereon entering into the computation of 21 federal taxable income shall be disregarded in computing unincorporated 22 business taxable income and there shall be added to or subtracted from 23 federal gross income, so modified, the gain or loss upon such sale or 24 other disposition. In computing such gain or loss, the basis of the 25 property sold or disposed of shall be adjusted to reflect the deduction 26 allowed with respect to such property pursuant to this subdivision. 27 (k) A deduction shall be allowed for that portion of wages and sala- 28 ries paid or incurred for the taxable year for which a deduction is not 29 allowed pursuant to the provisions of section two hundred eighty-C of 30 the internal revenue code. 31 (l) For taxable years beginning after December thirty-first, nineteen 32 hundred eighty-one, except with respect to property which is a qualified 33 mass commuting vehicle described in subparagraph (D) of paragraph eight 34 of subsection (f) of section one hundred sixty-eight of the internal 35 revenue code, relating to qualified mass commuting vehicles, a deduction 36 shall be allowed for any amount which the taxpayer could have excluded 37 for purposes of this chapter had it not made the election provided for 38 in such paragraph eight as it was in effect for agreements entered into 39 prior to January first, nineteen hundred eighty-four. 40 (m) For taxable years beginning after December thirty-first, nineteen 41 hundred eighty-one, except with respect to property which is a qualified 42 mass commuting vehicle described in subparagraph (D) of paragraph eight 43 of subsection (f) of section one hundred sixty-eight of the internal 44 revenue code, relating to qualified mass commuting vehicles, no 45 deduction shall be allowed for any amount deductible for federal income 46 tax purposes solely as a result of an election made pursuant to the 47 provisions of such paragraph eight as it was in effect for agreements 48 entered into prior to January first, nineteen hundred eighty-four. 49 (n) In the case of property placed in service in taxable years begin- 50 ning before nineteen hundred ninety-four, for taxable years beginning 51 after December thirty-first, nineteen hundred eighty-one, except with 52 respect to property subject to the provisions of section two hundred 53 eighty-F of the internal revenue code and property subject to the 54 provisions of section one hundred sixty-eight of the internal revenue 55 code which is placed in service in this state in taxable years beginning 56 after December thirty-first, nineteen hundred eighty-four, no deductionS. 8474 380 1 shall be allowed for the amount allowable as a deduction determined 2 under section one hundred sixty-eight of the internal revenue code. 3 (o) In the case of property placed in service in taxable years begin- 4 ning before nineteen hundred ninety-four, for taxable years beginning 5 after December thirty-first, nineteen hundred eighty-one, except with 6 respect to property subject to the provisions of section two hundred 7 eighty-F of the internal revenue code and property subject to the 8 provisions of section one hundred sixty-eight of the internal revenue 9 code which is placed in service in this state in taxable years beginning 10 after December thirty-first, nineteen hundred eighty-four, and provided 11 a deduction has not been disallowed pursuant to subdivision (m) of this 12 section, a taxpayer shall be allowed with respect to property which is 13 subject to the provisions of section one hundred sixty-eight of the 14 internal revenue code the depreciation deduction allowable under section 15 one hundred sixty-seven of the internal revenue code as such section 16 would have applied to property placed in service on December thirty- 17 first, nineteen hundred eighty. 18 (p) Notwithstanding any other provision of this chapter to the contra- 19 ry, no deduction shall be allowed for interest, depreciation or any 20 other expense directly or indirectly attributable to the holding, leas- 21 ing or managing of real property or to income or gain therefrom if, and 22 to the extent that, such holding, leasing or managing of real property 23 is not deemed an unincorporated business carried on by the taxpayer 24 pursuant to the provisions of subdivision (d) of section 11-502 of this 25 chapter. 26 (q) Notwithstanding any other provision of this chapter to the contra- 27 ry, no deduction shall be allowed for any expenses directly or indirect- 28 ly attributable to activities described in paragraph two of subdivision 29 (c) of section 11-502 of this chapter if, and to the extent that, such 30 activities are not deemed an unincorporated business carried on by the 31 taxpayer pursuant to the provisions of subdivision (c) of section 11-502 32 of this chapter. 33 (r) Notwithstanding any other provision of this chapter to the contra- 34 ry, in the case of a taxpayer that is an unincorporated entity described 35 in subparagraph (B) of paragraph four of subdivision (c) of section 36 11-502 of this chapter, no deduction shall be allowed for any losses or 37 expenses directly or indirectly attributable to the sale or other dispo- 38 sition of an interest in another unincorporated entity if, and to the 39 extent that, such losses or expenses are attributable to activities of 40 such other unincorporated entity not deemed an unincorporated business 41 carried on by the taxpayer pursuant to the provisions of subdivision (c) 42 of section 11-502 of this chapter. 43 (s) Notwithstanding any other provision of this chapter to the contra- 44 ry, no deduction shall be allowed for interest, depreciation or any 45 other expense directly or indirectly attributable to the provision by an 46 owner, lessee or fiduciary holding, leasing or managing real property of 47 the service of parking, garaging or storing of motor vehicles on a 48 monthly or longer term basis to tenants at such real property if, and to 49 the extent that, the provision of such services to such tenants is not 50 deemed an unincorporated business pursuant to the provisions of subdivi- 51 sion (d) of section 11-502 of this chapter. 52 (t) For taxable years ending after September tenth, two thousand one, 53 in the case of qualified property described in paragraph two of 54 subsection k of section one hundred sixty-eight of the internal revenue 55 code, other than qualified New York Liberty Zone property described in 56 paragraph two of subsection b of section fourteen hundred L of theS. 8474 381 1 internal revenue code, without regard to clause (i) of subparagraph (C) 2 of such paragraph, no deduction shall be allowed for the amount allow- 3 able as a deduction under section one hundred sixty-seven of the inter- 4 nal revenue code. 5 (u) For taxable years ending after September tenth, two thousand one, 6 in the case of qualified property described in paragraph two of 7 subsection k of section one hundred sixty-eight of the internal revenue 8 code other than qualified New York Liberty Zone property described in 9 paragraph two of subsection b of section fourteen hundred L of the 10 internal revenue code, without regard to clause (i) of subparagraph (C) 11 of such paragraph, a deduction shall be allowed with respect to such 12 property equal to the depreciation deduction allowable under section one 13 hundred sixty-seven of the internal revenue code as such section would 14 have applied to such property had it been acquired by the taxpayer on 15 September tenth, two thousand one, provided, however, that for taxable 16 years beginning on or after January first, two thousand four, in the 17 case of a passenger motor vehicle or a sport utility vehicle subject to 18 the provisions of subdivision (w) of this section, the limitation under 19 clause (i) of subparagraph (A) of paragraph one of subdivision (a) of 20 section two hundred eighty-F of the internal revenue code applicable to 21 the amount allowed as a deduction under this paragraph shall be deter- 22 mined as of the date such vehicle was placed in service and not as of 23 September tenth, two thousand one. 24 (v) For taxable years beginning on or after January first, two thou- 25 sand four, in the case of a taxpayer that is not an eligible farmer as 26 defined in subsection (n) of section six hundred six of the tax law, no 27 deduction shall be allowed for the amounts allowable as a deduction 28 under sections one hundred seventy-nine, one hundred sixty-seven and one 29 hundred sixty-eight of the internal revenue code with respect to a sport 30 utility vehicle that is not a passenger automobile as defined in para- 31 graph five of subsection (d) of section two hundred eighty-F of the 32 internal revenue code. 33 (w) For taxable years beginning on or after January first, two thou- 34 sand four, in the case of a taxpayer that is not an eligible farmer as 35 defined in subsection (n) of section six hundred six of the tax law, a 36 deduction shall be allowed with respect to a sport utility vehicle that 37 is not a passenger automobile as defined in paragraph five of subsection 38 (d) of section two hundred eighty-F of the internal revenue code equal 39 to the amounts allowable as a deduction under sections one hundred 40 seventy-nine, one hundred sixty-seven and one hundred sixty-eight of the 41 internal revenue code, determined as if such sport utility vehicle were 42 a passenger automobile as defined in such paragraph five. 43 § 11-508 Allocation to the city. (a) General; allocation of business 44 income. If an unincorporated business is carried on both within and 45 without the city, as determined under regulations of the commissioner of 46 finance, there shall be allocated to the city, in the manner provided in 47 subdivision (b), (c) or (d) of this section, a fair and equitable 48 portion of its business income. For taxable years beginning before July 49 first, nineteen hundred ninety-six, if the unincorporated business has 50 no regular place of business outside the city, all of such business 51 income shall be allocated to the city. 52 (b) (1) Allocation by taxpayer's books. For taxable years beginning 53 before January first, two thousand five, the portion allocable to the 54 city may be determined from the books of the business if the methods 55 used in keeping such books are approved by the commissioner of finance 56 as fairly and equitably reflecting the income from the city.S. 8474 382 1 (2)(i) If a taxpayer determines the portion of business income to be 2 allocated to the city using the method prescribed in paragraph one of 3 this subdivision on a timely filed original return with respect to each 4 of the two taxable years, each of which must consist of twelve months, 5 immediately preceding the taxpayer's first taxable year beginning on or 6 after January first, two thousand five, the taxpayer may make a one-time 7 election to continue to use that method for taxable years beginning on 8 or after January first, two thousand five and before January first, two 9 thousand twelve. Such election shall be made by using the method 10 prescribed in paragraph one of this subdivision on an original timely 11 filed return with respect to the first taxable year beginning on or 12 after January first, two thousand five and before January first, two 13 thousand six. Such election may not be made, or if made, shall be deemed 14 revoked as of the beginning of the taxable year if, for either of the 15 two taxable years immediately preceding the year in which the election 16 is made, the commissioner of finance has determined the methods used in 17 keeping such books do not fairly and equitably reflect the income from 18 the city. 19 (ii) (A) A taxpayer that has made the election provided for in subpar- 20 agraph (i) of this paragraph may revoke it by filing an original or 21 amended return using an allocation method permitted by this section 22 other than the method prescribed in paragraph one of this subdivision 23 unless the commissioner of finance has determined that such method does 24 not fairly and equitably reflect the income from the city. 25 (B) The election provided for in subparagraph (i) of this paragraph 26 shall be deemed to have been revoked as of the beginning of the taxable 27 year if, for any taxable year during which the election is intended to 28 be in effect, the commissioner of finance has determined that the meth- 29 ods used in keeping the taxpayer's books do not fairly and equitably 30 reflect the income from the city. 31 (C) In the case of a taxpayer that is a partnership or other unincor- 32 porated entity, the election provided for in subparagraph (i) of this 33 paragraph shall be deemed to have been revoked as of the beginning of 34 the taxable year unless one or more of the persons having a propor- 35 tionate interest or interests, amounting to more than fifty percent of 36 all such interests, in the taxpayer's unincorporated business gross 37 income and unincorporated business deductions for such taxable year were 38 persons having a proportionate interest or interests, amounting to more 39 than fifty percent of all such interests, in the taxpayer's unincorpo- 40 rated business gross income and unincorporated business deductions at 41 the end of the taxpayer's last taxable year beginning before January 42 first, two thousand five. For purposes of this clause, a transfer of an 43 ownership interest in unincorporated business gross income or unincorpo- 44 rated business deductions upon the death of a partner or owner to such 45 deceased partner's or owner's estate shall be disregarded but transfers 46 by such decedent's estate shall not be disregarded. 47 (D) Once the election provided for in subparagraph (i) of this para- 48 graph has been revoked by the taxpayer pursuant to clause (A) or deemed 49 revoked pursuant to clauses (B) or (C) of this subparagraph, the taxpay- 50 er shall be barred from using the method prescribed in paragraph one of 51 this subdivision for the taxable year in which the election has been 52 revoked or deemed revoked and any subsequent taxable year. 53 (c) Allocation by formula. If subdivision (b) does not apply to the 54 taxpayer, the portion allocable to the city shall be determined by 55 multiplying (A) the business income by (B) a business allocation 56 percentage to be determined by adding together the percentages computedS. 8474 383 1 under paragraphs one, two and three of this subdivision, and dividing 2 the result by the number of percentages; provided, however, that for 3 taxable years beginning on or after July first, nineteen hundred nine- 4 ty-six, a taxpayer that is a "manufacturing business," as defined in 5 subdivision (g) of this section, may determine its business allocation 6 percentage as provided in such subdivision (g): 7 (1) Property percentage. The percentage computed by dividing (A) the 8 average of the value, at the beginning and end of the taxable year, of 9 real and tangible personal property connected with the unincorporated 10 business and located within the city, by (B) the average of the value, 11 at the beginning and end of the taxable year, of all real and tangible 12 personal property connected with the unincorporated business and located 13 both within and without the city. For this purpose, for taxable years 14 beginning before January first, two thousand five, real property shall 15 include real property rented to the unincorporated business and, for 16 this purpose, for taxable years beginning on and after January first, 17 two thousand five, real and tangible personal property shall include 18 real and tangible personal property rented to the unincorporated busi- 19 ness and the value of such real and tangible personal property rented to 20 the unincorporated business shall mean the product of (i) eight and (ii) 21 the gross rents payable for the rental of such property during the taxa- 22 ble year. 23 (2) Payroll percentage. The percentage computed by dividing (A) the 24 total wages, salaries and other personal service compensation paid or 25 incurred during the taxable year to employees in connection with the 26 unincorporated business carried on within the city, by (B) the total of 27 all wages, salaries and other personal service compensation paid or 28 incurred during the taxable year to employees in connection with the 29 unincorporated business carried on both within and without the city. 30 (3) Gross income percentage. The percentage computed by dividing (A) 31 the gross sales or charges for services performed by or through an agen- 32 cy located within the city, by (B) the total of all gross sales or 33 charges for services performed within and without the city. The sales or 34 charges to be allocated to the city shall include all sales negotiated 35 or consummated, and charges for services performed, by an employee, 36 agent, agency or independent contractor chiefly situated at, connected 37 by contract or otherwise with, or sent out from, offices of the unincor- 38 porated business, or other agencies, situated within the city; provided, 39 however, that for taxable years beginning on or after July first, nine- 40 teen hundred ninety-six, sales of tangible personal property shall not 41 be allocated to the city as provided in this paragraph, but shall be 42 allocated to the city only where shipments are made to points within the 43 city, and provided, further, that: 44 (A) for taxable years beginning on or after July first, two thousand 45 five, for taxpayers having gross receipts for the taxable year, deter- 46 mined without regard to any deductions, of less than one hundred thou- 47 sand dollars, charges for services performed shall be allocated to the 48 city to the extent that the services are performed within the city; 49 (B) for taxable years beginning on or after July first, two thousand 50 six, for taxpayers having gross receipts for the taxable year, deter- 51 mined without regard to any deductions, of less than three hundred thou- 52 sand dollars, charges for services performed shall be allocated to the 53 city to the extent that the services are performed within the city; and 54 (C) for taxable years beginning on or after July first, two thousand 55 seven, for all other taxpayers, charges for services performed shall beS. 8474 384 1 allocated to the city to the extent that the services are performed 2 within the city. 3 (d) Other allocation methods. The portion allocable to the city shall 4 be determined in accordance with rules and regulations of the commis- 5 sioner of finance if it shall appear to the commissioner of finance that 6 the income from the city is not fairly and equitably reflected under the 7 provisions of either subdivision (b) or subdivision (c) of this section. 8 (e) Special rules for real estate. Income and deductions from the 9 rental of real property, and gain and loss from the sale, exchange or 10 other disposition of real property, shall not be subject to allocation 11 under subdivision (b), (c), or (d) of this section, but shall be consid- 12 ered as entirely derived from or connected with the state, other than 13 this state, in which such property is located or, if such property is 14 located in this state, the political subdivision thereof. To the extent 15 that anything in this subdivision is inconsistent with any provision of 16 subdivision (d) of section 11-502, subdivision (c) of section 11-506 or 17 subdivision (p) of section 11-507 of this chapter, the provisions of 18 such subdivisions shall take precedence over the provisions of this 19 subdivision. 20 (e-1) Special rules for publishers and broadcasters. (1) Notwithstand- 21 ing anything in paragraph three of subdivision (c) of this section to 22 the contrary and except as provided in paragraph four of this subdivi- 23 sion, in the case of a taxpayer engaged in the business of publishing 24 newspapers or periodicals, there shall be allocated to the city, for 25 purposes of such paragraph three, the gross sales or charges for 26 services arising from sales of subscriptions to, and advertising 27 contained in, such newspapers or periodicals, to the extent that such 28 newspapers or periodicals are delivered to points within the city. 29 (2) Notwithstanding anything in paragraph three of subdivision (c) of 30 this section to the contrary and except as provided in paragraph four of 31 this subdivision, in the case of a taxpayer engaged in the business of 32 broadcasting radio or television programs, whether through the public 33 airwaves or by cable, direct or indirect satellite transmission, or any 34 other means of transmission, there shall be allocated to the city, for 35 purposes of such paragraph three, a portion of the gross sales or charg- 36 es for services arising from the sale of subscriptions to such programs 37 or from the broadcasting of such programs and of commercial messages in 38 connection therewith, such portion to be determined according to the 39 number of listeners or viewers within and without the city. 40 (3) Notwithstanding anything in this section, other than subdivision 41 (e) of this section, to the contrary, in the case of a taxpayer that is 42 substantially engaged, in the aggregate, in any combination of the busi- 43 nesses referred to in paragraphs one, two and four of this subdivision, 44 the portion of business income allocable to the city shall be determined 45 in accordance with the provisions of subdivision (c) of this section, as 46 modified by paragraphs one, two and four of this subdivision, unless the 47 commissioner of finance determines that the business income from the 48 city is not fairly and equitably reflected under the provisions of such 49 subdivision (c), in which event the provisions of subdivision (d) of 50 this section shall apply in determining the portion of business income 51 allocable to the city and the provisions of subdivision (b) of this 52 section shall not apply. For purposes of this subdivision, a taxpayer 53 shall be deemed to be substantially engaged in a business or businesses 54 referred to in such paragraphs one and two if more than ten percent of 55 the taxpayer's gross receipts for the taxable year are attributable to 56 such business or businesses.S. 8474 385 1 (4) Notwithstanding anything in paragraph one or two of this subdivi- 2 sion to the contrary, for taxable years beginning on or after January 3 first, two thousand two, in the case of a taxpayer engaged in the busi- 4 ness of publishing newspapers or periodicals, or broadcasting radio or 5 television programs, whether through the public airwaves or by cable, 6 direct or indirect satellite transmission, or any other means of trans- 7 mission, there shall be allocated to the city, for purposes of paragraph 8 three of subdivision (c) of this section, the gross sales or charges to 9 subscribers located in the city for subscriptions to such newspapers, 10 periodicals, or program services. For purposes of this paragraph, a 11 subscriber shall be deemed located in the city if, in the case of news- 12 papers and periodicals, the mailing address for the subscription is 13 within the city and, in the case of program services, the billing 14 address for the subscription is within the city. For purposes of this 15 clause, "subscriber" shall mean a member of the general public who 16 receives such newspapers, periodicals or program services and does not 17 further distribute them. 18 (e-2) Rules for receipts from certain services to investment compa- 19 nies. (1) For taxable years beginning on or after January first, two 20 thousand one, for purposes of paragraph three of subdivision (c) of this 21 section, the portion of receipts received from an investment company 22 arising from the sale of management, administration or distribution 23 services to such investment company determined in accordance with para- 24 graph two of this subdivision shall be deemed to arise from services 25 performed within the city, such portion referred to herein as the Staten 26 Island city portion. 27 (2) The Staten Island city portion shall be the product of the total 28 of such receipts from the sale of such services and a fraction. The 29 numerator of that fraction is the sum of the monthly percentages, as 30 defined hereinafter, determined for each month of the investment compa- 31 ny's taxable year for federal income tax purposes which taxable year 32 ends within the taxable year of the taxpayer, but excluding any month 33 during which the investment company had no outstanding shares. The 34 monthly percentage for each such month is determined by dividing the 35 number of shares in the investment company which are owned on the last 36 day of the month by shareholders that are domiciled in the city by the 37 total number of shares in the investment company outstanding on that 38 date. The denominator of the fraction is the number of such monthly 39 percentages. 40 (3)(A) For purposes of this subdivision the term "domicile", in the 41 case of an individual shall have the meaning ascribed to it under chap- 42 ter seventeen of this title; an estate or trust is domiciled in the city 43 if it is a city resident estate or trust as defined in paragraph three 44 of subdivision (b) of section 11-1705 of the code of the proceeding 45 municipality; a business entity is domiciled in the city if the location 46 of the actual seat of management or control is in the city. It shall be 47 presumed that the domicile of a shareholder, with respect to any month, 48 is his, her or its mailing address on the records of the investment 49 company as of the last day of such month. 50 (B) For purposes of this subdivision, the term "investment company" 51 means a regulated investment company, as defined in section eight 52 hundred fifty-one of the internal revenue code, and a partnership to 53 which subdivision (a) of section seven thousand seven hundred four of 54 the internal revenue code applies, by virtue of paragraph three of 55 subdivision (c) of section seven thousand seven hundred four of such 56 code, and that meets the requirements of subdivision (b) of sectionS. 8474 386 1 eight hundred fifty-one of such code. The provisions of this subpara- 2 graph shall be applied to the taxable year for federal income tax 3 purposes of the business entity that is asserted to constitute an 4 investment company that ends within the taxable year of the taxpayer. 5 (C) For purposes of this subdivision, the term "receipts from an 6 investment company" includes amounts received directly from an invest- 7 ment company as well as amounts received from the shareholders in such 8 investment company in their capacity as such. 9 (D) For purposes of this subdivision, the term "management services" 10 means the rendering of investment advice to an investment company, 11 making determinations as to when sales and purchases of securities are 12 to be made on behalf of an investment company, or the selling or 13 purchasing of securities constituting assets of an investment company, 14 and related activities, but only where such activity or activities are 15 performed pursuant to a contract with the investment company entered 16 into pursuant to subdivision (a) of section fifteen of the federal 17 investment company act of nineteen hundred forty, as amended. 18 (E) For purposes of this subdivision, the term "distribution services" 19 means the services of advertising, servicing investor accounts, includ- 20 ing redemptions, marketing shares or selling shares of an investment 21 company, but, in the case of advertising, servicing investor accounts, 22 including redemptions, or marketing shares, only where such service is 23 performed by a person who is, or was, in the case of a closed end compa- 24 ny, also engaged in the service of selling such shares. In the case of 25 an open end company, such service of selling shares must be performed 26 pursuant to a contract entered into pursuant to subdivision (b) of 27 section fifteen of the federal investment company act of nineteen 28 hundred forty, as amended. 29 (F) For purposes of this subdivision, the term "administration 30 services" includes clerical, accounting, bookkeeping, data processing, 31 internal auditing, legal and tax services performed for an investment 32 company but only if the provider of such service or services during the 33 taxable year in which such service or services are sold also sells 34 management or distribution services, as defined in this subdivision, to 35 such investment company. 36 (e-3) Rules for receipts for services performed by registered securi- 37 ties or commodities brokers or dealers. (1) For taxable years beginning 38 after two thousand eight, in the case of a taxpayer which is a regis- 39 tered securities or commodities broker or dealer, for purposes of para- 40 graph three of subdivision (c) of this section, the receipts specified 41 in subparagraphs (A) through (G) of this paragraph shall be deemed to 42 arise from services performed within the city to the extent set forth in 43 such subparagraphs. 44 (A) Receipts constituting brokerage commissions derived from the 45 execution of securities or commodities purchase or sales orders for the 46 accounts of customers shall be deemed to arise from services performed 47 at the mailing address in the records of the taxpayer of the customer 48 who is responsible for paying such commissions. 49 (B) Receipts constituting margin interest earned on behalf of broker- 50 age accounts shall be deemed to arise from services performed at the 51 mailing address in the records of the taxpayer of the customer who is 52 responsible for paying such margin interest. 53 (C) Gross income, including any accrued interest or dividends, from 54 principal transactions for the purchase or sale of stocks, bonds, 55 foreign exchange and other securities or commodities, including futures 56 and forward contracts, options and other types of securities or commod-S. 8474 387 1 ities derivatives contracts, shall be deemed to arise from services 2 performed within the city either (i) to the extent that production cred- 3 its are awarded to branches, offices or employees of the taxpayer within 4 the city as a result of such principal transactions or (ii) if the 5 taxpayer so elects, to the extent that the gross proceeds from such 6 principal transactions, determined without deduction for any cost 7 incurred by the taxpayer to acquire the securities or commodities, are 8 generated from sales of securities or commodities to customers within 9 the city based upon the mailing addresses of such customers in the 10 records of the taxpayer. For purposes of clause (ii) of this subpara- 11 graph, the taxpayer shall separately calculate such gross income from 12 principal transactions by type of security or commodity. For purposes of 13 this subparagraph, gross income from principal transactions shall be 14 determined after the deduction of any cost incurred by the taxpayer to 15 acquire the securities or commodities. For purposes of this subdivision, 16 the term "production credits" means credits granted pursuant to the 17 internal accounting system used by the taxpayer to measure the amount of 18 revenue that should be awarded to a particular branch or office or 19 employee of the taxpayer which is based, at least in part, on the 20 branch's, the office's or the employee's particular activities. Upon 21 request, the taxpayer shall be required to furnish a detailed explana- 22 tion of such internal accounting system to the department. 23 (D) (i) Receipts constituting fees earned by the taxpayer for advisory 24 services to a customer in connection with the underwriting of securities 25 for such customer, such customer being the entity which is contemplating 26 issuing or is issuing securities, or fees earned by the taxpayer for 27 managing an underwriting shall be deemed to arise from services 28 performed at the mailing address in the records of the taxpayer of such 29 customer who is responsible for paying such fees. 30 (ii) Receipts constituting the primary spread or selling concession 31 from underwritten securities shall be deemed to arise from services 32 performed within the city to the extent that production credits are 33 awarded to branches, offices or employees of the taxpayer within the 34 city as a result of the sale of the underwritten securities. 35 (iii) The term "primary spread" means the difference between the price 36 paid by the taxpayer to the issuer of the securities being marketed and 37 the price received from the subsequent sale of the underwritten securi- 38 ties at the initial public offering price, less any selling concession 39 and any fees paid to the taxpayer for advisory services or any manager's 40 fees, if such fees are not paid by the customer to the taxpayer sepa- 41 rately. The term "public offering price" means the price agreed upon by 42 the taxpayer and the issuer at which the securities are to be offered to 43 the public. The term "selling concession" means the amount paid to the 44 taxpayer for participating in the underwriting of a security where the 45 taxpayer is not the lead underwriter. 46 (E) Receipts constituting interest earned by the taxpayer on loans and 47 advances made by the taxpayer to an entity affiliated with the taxpayer 48 shall be deemed to arise from services performed at the principal place 49 of business of such affiliated entity. For purposes of this subpara- 50 graph, an entity shall be considered affiliated with the taxpayer if 51 such entity and the taxpayer have eighty percent or more common direct 52 or indirect, actual or beneficial ownership. 53 (F) Receipts constituting account maintenance fees shall be deemed to 54 arise from services performed at the mailing address in the records of 55 the taxpayer of the customer who is responsible for paying such account 56 maintenance fees.S. 8474 388 1 (G) Receipts constituting fees for management or advisory services, 2 including fees for advisory services in relation to merger or acquisi- 3 tion activities, but excluding fees paid for services described in para- 4 graph one of subdivision (e-2) of this section, shall be deemed to arise 5 from services performed at the mailing address in the records of the 6 taxpayer of the customer who is responsible for paying such fees. 7 (2) For purposes of this subdivision, the term "securities" shall have 8 the same meaning as in paragraph two of subdivision (c) of section four 9 hundred seventy-five of the internal revenue code and the term "commod- 10 ities" shall have the same meaning as in paragraph two of subdivision 11 (e) of section four hundred seventy-five of such code. The term "regis- 12 tered securities or commodities broker or dealer" means a broker or 13 dealer registered as such by the securities and exchange commission or 14 the commodities futures trading commission, and shall include an OTC 15 derivatives dealer as defined under regulations of the securities and 16 exchange commission at title seventeen, part two hundred forty, section 17 3b-12 of the code of federal regulations (17 CFR 240.3b-12). 18 (3) If the taxpayer receives any of the receipts enumerated in para- 19 graph one of this subdivision as a result of a securities correspondent 20 relationship such taxpayer has with another registered securities or 21 commodities broker or dealer with the taxpayer acting in this relation- 22 ship as the clearing firm, such receipts shall be deemed to arise from 23 services performed within the city to the extent set forth in each of 24 the subparagraphs in paragraph one of this subdivision. The amount of 25 such receipts shall exclude the amount the taxpayer is required to pay 26 to the correspondent firm for such correspondent relationship. If the 27 taxpayer receives any of the receipts enumerated in paragraph one of 28 this subdivision as a result of a securities correspondent relationship 29 such taxpayer has with another registered securities or commodities 30 broker or dealer with the taxpayer acting in this relationship as the 31 introducing firm, such receipts shall be deemed to arise from services 32 performed within the city to the extent set forth in each of the subpar- 33 agraphs in paragraph one of this subdivision. 34 (4) If, for purposes of subparagraph (A), (B), (F), or (G) of para- 35 graph one of this subdivision, and clause (i) of subparagraph (C) of 36 paragraph one of this subdivision, the taxpayer is unable from its 37 records to determine the mailing address of the customer, the receipts 38 described in any of such subparagraphs and such clause shall be deemed 39 to arise from services performed at the branch or office of the taxpayer 40 that generates the transaction for the customer that generated such 41 receipts. 42 (f) Allocation of investment income. (1) The investment income of an 43 unincorporated business shall be allocated to the city by multiplying 44 such investment income by an investment allocation percentage to be 45 determined as follows: 46 (A) multiply the amount of its investment capital invested in each 47 stock, bond or other security, other than governmental securities, 48 during the period covered by its return by the issuer's allocation 49 percentage, determined as provided in paragraph two of this subdivision, 50 of the issuer or obligor thereof: 51 (B) add together the products so obtained; and 52 (C) divide the sum so obtained by the total of its investment capital 53 invested during such period in stocks, bonds and other securities; 54 provided, however, that in case any investment capital is invested in 55 any stock, bond or other security during only a portion of the period 56 covered by the return, only such portion of such capital shall be takenS. 8474 389 1 into account; and provided, further, that if a taxpayer's investment 2 allocation percentage is zero, interest received on bank accounts shall 3 be allocated in the manner provided in subdivision (b), (c) or (d) of 4 this section. 5 (2) (A) In the case of an issuer or obligor subject to tax under 6 subchapter two or three-A of chapter six of this title, or subject to 7 tax as a utility corporation under chapter eleven of this title, the 8 issuer's allocation percentage shall be the percentage of the appropri- 9 ate measure which is required to be allocated within the city on the 10 report or reports, if any, required of the issuer or obligor under chap- 11 ter six or eleven of this title for the preceding year. The appropriate 12 measure referred to in this subparagraph shall be: in the case of an 13 issuer or obligor subject to subchapter two of chapter six of this 14 title, entire capital; and in the case of an issuer or obligor subject 15 to chapter eleven of this title as a utility corporation, gross income. 16 (B) In the case of an issuer or obligor subject to tax under part four 17 of subchapter three of chapter six of this title, the issuer's allo- 18 cation percentage shall be determined as follows: 19 (i) In the case of a banking corporation described in paragraphs one 20 through eight of subdivision (a) of section 11-640 of this title which 21 is organized under the laws of the United States, this state or any 22 other state of the United States, the issuer's allocation percentage 23 shall be its alternative entire net income allocation percentage, as 24 defined in subdivision (c) of section 11-642 of this title, for the 25 preceding year. In the case of such a banking corporation whose alterna- 26 tive entire net income for the preceding year is derived exclusively 27 from business carried on within the city, its issuer's allocation 28 percentage shall be one hundred percent. 29 (ii) In the case of a banking corporation described in paragraph two 30 of subdivision (a) of section 11-640 of this title which is organized 31 under the laws of a country other than the United States, the issuer's 32 allocation percentage shall be determined by dividing (I) the amount 33 described in clause (i) of subparagraph (A) of paragraph two of subdivi- 34 sion (a) of section 11-642 of this title with respect to such issuer or 35 obligor for the preceding year, by (II) the gross income of such issuer 36 or obligor from all sources within and without the United States, for 37 such preceding year, whether or not included in alternative entire net 38 income for such year. 39 (iii) In the case of an issuer or obligor described in paragraph nine 40 of subdivision (a) or in paragraph two of subdivision (d) of section 41 11-640 of this title, the issuer's allocation percentage shall be deter- 42 mined by dividing the portion of the entire capital of the issuer or 43 obligor allocable to the city for the preceding year by the entire capi- 44 tal, wherever located, of the issuer or obligor for the preceding year. 45 (C) Provided, however, that if a report or reports for the preceding 46 year are not filed, or if filed do not contain information which would 47 permit the determination of such issuer's allocation percentage, then 48 the issuer's allocation percentage to be used shall, at the discretion 49 of the commissioner of finance, be either (i) the issuer's allocation 50 percentage derived from the most recently filed report or reports of the 51 issuer or obligor or (ii) a percentage calculated, by the commissioner 52 of finance, reasonably to indicate the degree of economic presence in 53 the city of the issuer or obligor during the preceding year. 54 (3) For purposes of this subdivision, investment capital shall be 55 determined by taking the average value of the gross assets included 56 therein, less liabilities deductible therefrom pursuant to theS. 8474 390 1 provisions of subdivision (h) of section 11-501 of this chapter. The 2 value of investment capital which consists of marketable securities 3 shall be the fair market value thereof and the value of investment capi- 4 tal other than marketable securities shall be the value thereof shown on 5 the books and records of the unincorporated business in accordance with 6 generally accepted accounting principles. 7 (g) Special rules for manufacturing businesses. (1) For taxable years 8 beginning on or after July first, nineteen hundred ninety-six and before 9 January first, two thousand eleven, a manufacturing business may elect 10 to determine its business allocation percentage by adding together the 11 percentages determined under paragraphs one, two and three of subdivi- 12 sion (c) of this section and an additional percentage equal to the 13 percentage determined under paragraph three of subdivision (c) of this 14 section, and dividing the result by the number of percentages so added 15 together. 16 (2) An election under this subdivision must be made on a timely filed 17 (determined with regard to extensions granted) original return for the 18 taxable year. Once made for a taxable year, such election shall be irre- 19 vocable for that taxable year. A separate election must be made for each 20 taxable year. A manufacturing business that has failed to make an 21 election as provided in this paragraph shall be required to determine 22 its business allocation percentage without regard to the provisions of 23 this subdivision. Notwithstanding anything in this paragraph to the 24 contrary, the commissioner of finance may permit a manufacturing busi- 25 ness to make or revoke an election under this subdivision, upon such 26 terms and conditions as the commissioner may prescribe, where the 27 commissioner determines that such permission should be granted in the 28 interests of fairness and equity due to a change in circumstances 29 resulting from an audit adjustment. 30 (3) As used in this subdivision, the term "manufacturing business" 31 means an unincorporated business primarily engaged in the manufacturing 32 and sale thereof of tangible personal property; and the term "manufac- 33 turing" includes the process, including the assembly process (i) of 34 working raw materials into wares suitable for use or (ii) which gives 35 new shapes, new qualities or new combinations to matter which already 36 has gone through some artificial process, by the use of machinery, 37 tools, appliances and other similar equipment. An unincorporated busi- 38 ness shall be deemed to be primarily engaged in the activities described 39 in the preceding sentence if more than fifty percent of its gross 40 receipts for the taxable year are attributable to such activities. 41 (h) Notwithstanding subdivision (d) of this section, if it shall 42 appear to the commissioner of finance that any business or investment 43 allocation percentage determined pursuant to this section does not prop- 44 erly reflect the activity, business, or income of a taxpayer within the 45 city, the commissioner of finance shall be authorized in his or her 46 discretion, in the case of a business allocation percentage, to adjust 47 it by (1) excluding one or more of the factors therein; (2) including 48 one or more factors, such as expenses, purchases, contract values, minus 49 subcontract values; (3) excluding one or more assets in computing such 50 allocation percentage, provided the income therefrom is also excluded in 51 determining unincorporated business entire net income, or (4) any other 52 similar or different method calculated to effect a fair and proper allo- 53 cation of the income reasonably attributable to the city, and in the 54 case of an investment allocation percentage, to adjust it by excluding 55 one or more assets in computing such percentage; provided the income 56 therefrom is also excluded in determining unincorporated business entireS. 8474 391 1 net income. The commissioner of finance from time to time shall publish 2 all rulings of general public interest with respect to any application 3 of the provisions of this subdivision. 4 (i) Notwithstanding subdivision (c) of this section, but subject to 5 subdivision (g) of this section, the business allocation percentage 6 shall be computed in the manner set forth in this subdivision. 7 (1) For taxable years beginning in two thousand nine, the business 8 allocation percentage shall be determined by adding together the follow- 9 ing percentages: 10 (A) the product of thirty percent and the percentage determined under 11 paragraph one of subdivision (c) of this section, 12 (B) the product of thirty percent and the percentage determined under 13 paragraph two of subdivision (c) of this section, and 14 (C) the product of forty percent and the percentage determined under 15 paragraph three of subdivision (c) of this section. 16 (2) For taxable years beginning in two thousand ten, the business 17 allocation percentage shall be determined by adding together the follow- 18 ing percentages: 19 (A) the product of twenty-seven percent and the percentage determined 20 under paragraph one of subdivision (c) of this section, 21 (B) the product of twenty-seven percent and the percentage determined 22 under paragraph two of subdivision (c) of this section, and 23 (C) the product of forty-six percent and the percentage determined 24 under paragraph three of subdivision (c) of this section. 25 (3) For taxable years beginning in two thousand eleven, the business 26 allocation percentage shall be determined by adding together the follow- 27 ing percentages: 28 (A) the product of twenty-three and one-half percent and the percent- 29 age determined under paragraph one of subdivision (c) of this section, 30 (B) the product of twenty-three and one-half percent and the percent- 31 age determined under paragraph two of subdivision (c) of this section, 32 and 33 (C) the product of fifty-three percent and the percentage determined 34 under paragraph three of subdivision (c) of this section. 35 (4) For taxable years beginning in two thousand twelve, the business 36 allocation percentage shall be determined by adding together the follow- 37 ing percentages: 38 (A) the product of twenty percent and the percentage determined under 39 paragraph one of subdivision (c) of this section, 40 (B) the product of twenty percent and the percentage determined under 41 paragraph two of subdivision (c) of this section, and 42 (C) the product of sixty percent and the percentage determined under 43 paragraph three of subdivision (c) of this section. 44 (5) For taxable years beginning in two thousand thirteen, the business 45 allocation percentage shall be determined by adding together the follow- 46 ing percentages: 47 (A) the product of sixteen and one-half percent and the percentage 48 determined under paragraph one of subdivision (c) of this section, 49 (B) the product of sixteen and one-half percent and the percentage 50 determined under paragraph two of subdivision (c) of this section, and 51 (C) the product of sixty-seven percent and the percentage determined 52 under paragraph three of subdivision (c) of this section. 53 (6) For taxable years beginning in two thousand fourteen, the business 54 allocation percentage shall be determined by adding together the follow- 55 ing percentages:S. 8474 392 1 (A) the product of thirteen and one-half percent and the percentage 2 determined under paragraph one of subdivision (c) of this section, 3 (B) the product of thirteen and one-half percent and the percentage 4 determined under paragraph two of subdivision (c) of this section, and 5 (C) the product of seventy-three percent and the percentage determined 6 under paragraph three of subdivision (c) of this section. 7 (7) For taxable years beginning in two thousand fifteen, the business 8 allocation percentage shall be determined by adding together the follow- 9 ing percentages: 10 (A) the product of ten percent and the percentage determined under 11 paragraph one of subdivision (c) of this section, 12 (B) the product of ten percent and the percentage determined under 13 paragraph two of subdivision (c) of this section, and 14 (C) the product of eighty percent and the percentage determined under 15 paragraph three of subdivision (c) of this section. 16 (8) For taxable years beginning in two thousand sixteen, the business 17 allocation percentage shall be determined by adding together the follow- 18 ing percentages: 19 (A) the product of six and one-half percent and the percentage deter- 20 mined under paragraph one of subdivision (c) of this section, 21 (B) the product of six and one-half percent and the percentage deter- 22 mined under paragraph two of subdivision (c) of this section, and 23 (C) the product of eighty-seven percent and the percentage determined 24 under paragraph three of subdivision (c) of this section. 25 (9) For taxable years beginning in two thousand seventeen, the busi- 26 ness allocation percentage shall be determined by adding together the 27 following percentages: 28 (A) the product of three and one-half percent and the percentage 29 determined under paragraph one of subdivision (c) of this section, 30 (B) the product of three and one-half percent and the percentage 31 determined under paragraph two of subdivision (c) of this section, and 32 (C) the product of ninety-three percent and the percentage determined 33 under paragraph three of subdivision (c) of this section. 34 (10) For taxable years beginning after two thousand seventeen, the 35 business allocation percentage shall be the percentage determined under 36 paragraph three of subdivision (c) of this section. 37 (11) The commissioner shall promulgate rules necessary to implement 38 the provisions of this subdivision under such circumstances where any of 39 the percentages to be determined under paragraph one, two or three of 40 subdivision (c) of this section cannot be determined because the taxpay- 41 er has no property, payroll or gross receipts from sales or services 42 within or without the city. 43 § 11-509 Deductions not subject to allocation. (a) In computing 44 unincorporated business taxable income, there shall be allowed, without 45 allocation under section 11-508 of this chapter, deductions for reason- 46 able compensation for taxable years beginning before January first, two 47 thousand seven, not in excess of five thousand dollars, and for taxable 48 years beginning on or after January first, two thousand seven, not in 49 excess of ten thousand dollars, for personal services of the proprietor 50 and each partner actively engaged in the unincorporated business, but 51 the aggregate of such deductions shall not exceed twenty per centum of 52 the unincorporated business taxable income computed without the benefit 53 of any deductions under this subdivision or the unincorporated business 54 exemptions under section 11-510 of this chapter. 55 (b) Subject to the conditions provided in paragraphs three and four of 56 this subdivision at the election of the taxpayer there shall also beS. 8474 393 1 allowed, without allocation under section 11-508 of this chapter, either 2 or both of the items set forth in paragraphs one and two of this subdi- 3 vision, except that only one of the items shall be allowed with respect 4 to any one item of property. 5 (1) Depreciation with respect to any property such as described in 6 paragraphs three or four of this subdivision, and subject to the condi- 7 tions provided therein, not exceeding twice the depreciation allowed 8 with respect to the same property for federal income tax purposes. Such 9 deduction shall be allowed only upon condition that no deduction shall 10 be allowed pursuant to section 11-507 of this chapter for depreciation 11 of the same property, and the total of all deductions allowed pursuant 12 to this paragraph in any taxable year or years with respect to any prop- 13 erty shall not exceed its cost or other basis and, in the case of an 14 unincorporated business carried on both within and without this city, 15 with respect to property described in paragraph four of this subdivi- 16 sion, such total shall not exceed its cost or other basis multiplied by 17 (A) the percentage of the excess of the taxpayer's unincorporated busi- 18 ness gross income over its unincorporated business deductions allocated 19 to this city, or (B) the percentage of the taxpayer's business income 20 allocated to this city, whichever is applicable, which percentage shall 21 be determined under section 11-508 of this chapter for the first year 22 such depreciation is deducted. 23 (2) Expenditures paid or incurred during the taxable year for the 24 construction, reconstruction, erection or acquisition of any property 25 such as described in paragraph three or four of this subdivision, and 26 subject to the conditions provided therein, which is used or to be used 27 for purposes of research or development in the experimental or laborato- 28 ry sense. Such purposes shall not be deemed to include the ordinary 29 testing or inspection of materials or products for quality control, 30 efficiency surveys, management studies, consumer surveys, advertising, 31 promotions or research in connection with literary, historical or simi- 32 lar projects. Such deduction shall be allowed only on condition that, in 33 the case of an unincorporated business carried on both within and with- 34 out this city, with respect to property described in paragraph four of 35 this subdivision, such deduction does not exceed the expenditures multi- 36 plied by (A) the percentage of the excess of the taxpayer's unincorpo- 37 rated business gross income over its unincorporated business deductions 38 allocated to this city, or (B) the percentage of the taxpayer's business 39 income allocated to this city, whichever is applicable, which percentage 40 shall be determined under section 11-508 of this chapter for the first 41 year such depreciation is deducted, and that, for the taxable year and 42 all succeeding taxable years, no deduction shall be allowed pursuant to 43 section 11-507 of this chapter on account of such expenditures or on 44 account of depreciation of the same property, except to the extent that 45 its basis may be attributable to factors other than such expenditures, 46 or in case a deduction is allowable pursuant to this paragraph for only 47 a part of such expenditures, on condition that any deduction allowable 48 for federal income tax purposes on account of such expenditures or on 49 account of depreciation of the same property shall be proportionately 50 reduced in determining the deductions allowable pursuant to section 51 11-507 of this chapter for the taxable year and all succeeding taxable 52 years. With respect to property which is used or to be used for research 53 and development only in part, or during only part of its useful life, 54 the deduction allowable pursuant to this paragraph shall be limited to a 55 proportionate part of the expenditures relating thereto. If a deduction 56 shall have been allowed pursuant to this paragraph for all or part ofS. 8474 394 1 such expenditures with respect to any property, and such property is 2 used for purposes other than research and development to a greater 3 extent than originally reported, the taxpayer shall report such use in 4 the taxpayer's return for the first taxable year during which it occurs, 5 and the commissioner of finance may recompute the tax for the year or 6 years for which such deduction was allowed, and may assess any addi- 7 tional tax resulting from such recomputation within the time fixed by 8 subdivision (c) of section 11-523 of this chapter. 9 (3) For purposes of this paragraph, such deduction shall be allowed 10 only with respect to tangible property which is depreciable pursuant to 11 section one hundred sixty-seven of the internal revenue code, having a 12 situs in the city and used in the taxpayer's trade or business, (A) 13 constructed, reconstructed or erected after December thirty-first, nine- 14 teen hundred sixty-five, pursuant to a contract which was, on or before 15 December thirty-first, nineteen hundred sixty-seven, and at all times 16 thereafter, binding on the taxpayer or, property, the physical 17 construction, reconstruction or erection of which began on or before 18 December thirty-first, nineteen hundred sixty-seven or which began after 19 such date pursuant to an order placed on or before December thirty- 20 first, nineteen hundred sixty-seven, and then only with respect to that 21 portion of the basis thereof or the expenditure relating thereto which 22 is properly attributable to such construction, reconstruction or 23 erection after December thirty-first, nineteen hundred sixty-five, or 24 (B) acquired after December thirty-first, nineteen hundred sixty-five, 25 pursuant to a contract which was, on or before December thirty-first, 26 nineteen hundred sixty-seven, and at all times thereafter, binding on 27 the taxpayer or pursuant to an order placed on or before December thir- 28 ty-first, nineteen hundred sixty-seven, by purchase as defined in 29 section one hundred seventy-nine (d) of the internal revenue code, if 30 the original use of such property commenced with the taxpayer, commenced 31 in the city and commenced after December thirty-first, nineteen hundred 32 sixty-five or (C) acquired, constructed, reconstructed, or erected 33 subsequent to December thirty-first, nineteen hundred sixty-seven, if 34 such acquisition, construction, reconstruction or erection is pursuant 35 to a plan of the taxpayer which was in existence December thirty-first, 36 nineteen hundred sixty-seven and not thereafter substantially modified, 37 and such acquisition, construction, reconstruction or erection would 38 qualify under the rules in paragraph four, five or six of subsection (h) 39 of section forty-eight of the internal revenue code provided all refer- 40 ences in such paragraphs four, five and six to the dates October nine, 41 nineteen hundred sixty-six, and October ten, nineteen hundred sixty-six, 42 shall be read as December thirty-first, nineteen hundred sixty-seven. A 43 taxpayer shall be allowed a deduction under subparagraph (A), (B) or (C) 44 of this paragraph only if the tangible property shall be delivered or 45 the construction, reconstruction or erection shall be completed on or 46 before December thirty-first, nineteen hundred sixty-nine, except in the 47 case of tangible property which is acquired, constructed, reconstructed 48 or erected pursuant to a contract which was, on or before December thir- 49 ty-first, nineteen hundred sixty-seven, and at all times thereafter, 50 binding on the taxpayer. However, for any taxable year beginning on or 51 after January first, nineteen hundred sixty-eight, a taxpayer shall not 52 be allowed a deduction under paragraph one of this subdivision with 53 respect to tangible personal property leased to any other person or 54 corporation, provided, any contract or agreement to lease or rent or for 55 a license to use such property shall be considered a lease. With 56 respect to property which a taxpayer uses for purposes other than leas-S. 8474 395 1 ing for part of a taxable year and leases for a part of a taxable year, 2 a deduction under paragraph one of this subdivision may be taken in 3 proportion to the part of the year such property is used by the taxpay- 4 er. 5 (4) For purposes of this paragraph, such deductions shall be allowed 6 only with respect to tangible property which is depreciable pursuant to 7 section one hundred sixty-seven of the internal revenue code, having a 8 situs in this city and used in the taxpayer's trade or business, (A) the 9 construction, reconstruction, or erection of which is completed after 10 December thirty-first, nineteen hundred sixty-seven, and then only with 11 respect to that portion of the basis thereof or the expenditures relat- 12 ing thereto which is properly attributable to such construction, recon- 13 struction or erection after December thirty-first, nineteen hundred 14 sixty-three, or (B) acquired after December thirty-first, nineteen 15 hundred sixty-seven, by purchase as defined in section one hundred 16 seventy-nine (d) of the internal revenue code, if the original use of 17 such property commenced with the taxpayer, commenced in this city and 18 commenced after December thirty-first, nineteen hundred sixty-five. 19 Provided, however, a deduction under paragraph one of this subdivision 20 shall be allowed with respect to property described in this paragraph 21 only on condition that such property shall be principally used by the 22 taxpayer in the production of goods by manufacturing; processing; assem- 23 bling; refining; mining; extracting; farming; agriculture; horticulture; 24 floriculture; viticulture or commercial fishing, provided, manufacturing 25 shall mean the process of working raw materials into wares suitable for 26 use or which gives new shapes, new qualities or new combinations to 27 matter which already has gone through some artificial process by the use 28 of machinery, tools, appliances, and other similar equipment. Property 29 used in the production of goods shall include machinery, equipment or 30 other tangible property which is principally used in the repair and 31 service of other machinery, equipment or other tangible property used 32 principally in the production of goods and shall include all facilities 33 used in the manufacturing operation, including storage of material to be 34 used in manufacturing and of the products that are manufactured. At the 35 option of the taxpayer, air and water pollution control facilities which 36 qualify for elective deductions under subdivision (i) of section 11-507 37 of this chapter may be treated, for purposes of this paragraph, as 38 tangible property principally used in the production of goods by manu- 39 facturing; processing; assembling; refining; mining; extracting; farm- 40 ing; agriculture; horticulture; floriculture; viticulture or commercial 41 fishing, in which event, a deduction shall not be allowed under subdivi- 42 sion (i) of section 11-507 of this chapter. However, for any taxable 43 year beginning on or after January first, nineteen hundred sixty-eight, 44 a taxpayer shall not be allowed a deduction under paragraph one of this 45 subdivision with respect to tangible personal property leased to any 46 other person or corporation, provided, any contract or agreement to 47 lease or rent or for a license to use such property shall be considered 48 a lease. With respect to property which a taxpayer uses for purposes 49 other than leasing for part of a taxable year and leases for a part of a 50 taxable year, a deduction under paragraph one shall be allowed in 51 proportion to the part of the year such property is used by the taxpay- 52 er. 53 (5) If the deductions allowable for any taxable year pursuant to this 54 subdivision exceed the taxpayer's unincorporated business taxable 55 income, determined without the allowance of such deductions, the excess 56 may be carried over to the following taxable year or years and may beS. 8474 396 1 deducted, without allocation under section 11-508 of this chapter, in 2 computing unincorporated business taxable income for such year or years. 3 (6) In any taxable year when property is sold or otherwise disposed 4 of, with respect to which a deduction has been allowed pursuant to para- 5 graph one or two of this subdivision, the basis of such property shall 6 be adjusted to reflect the deductions so allowed, and if the basis as so 7 adjusted is lower than the adjusted basis of the same property for 8 federal income tax purposes, there shall be added to federal gross 9 income the amount of the difference between such adjusted bases. 10 § 11-510 Unincorporated business exemptions. In computing unincorpo- 11 rated business taxable income, there shall be allowed, without allo- 12 cation under section 11-508 of this chapter: 13 (a) an unincorporated business exemption of five thousand dollars, 14 prorated for taxable years of less than twelve months under regulations 15 of the commissioner of finance; 16 (b) if a partner in an unincorporated business is taxable under this 17 chapter or under any local law imposed pursuant to section one of chap- 18 ter seven hundred seventy-two of the laws of nineteen hundred sixty-six, 19 an exemption for the amount of the partner's proportionate interest in 20 the excess of the unincorporated business gross income over the 21 deductions allowed under sections 11-507 and 11-509 of this chapter, but 22 this exemption shall be limited to the amount which is included in the 23 partner's unincorporated business taxable income allocable to the city, 24 or included in a corporate partner's net income allocable to the city, 25 provided, however, no such exemption shall be allowed to an unincorpo- 26 rated business for any taxable year of the unincorporated business 27 beginning after June thirtieth, nineteen hundred ninety-four. 28 § 11-511 Declarations of estimated tax. (a) Requirement of declara- 29 tion. Except as provided in subdivision (j) of this section, every 30 unincorporated business shall make a declaration of its estimated tax 31 for the taxable year, containing such information as the commissioner of 32 finance may prescribe by regulations or instruction, if: (1) for taxable 33 years beginning after nineteen hundred eighty-six but before nineteen 34 hundred ninety-six, its unincorporated business taxable income can 35 reasonably be expected to exceed fifteen thousand dollars; (2) for taxa- 36 ble years beginning in nineteen hundred ninety-six, its unincorporated 37 business taxable income can reasonably be expected to exceed twenty 38 thousand dollars; (3) for taxable years beginning after nineteen hundred 39 ninety-six but before two thousand nine, its estimated tax can reason- 40 ably be expected to exceed one thousand eight hundred dollars; and (4) 41 for taxable years beginning after two thousand eight, its estimated tax 42 can reasonably be expected to exceed three thousand four hundred 43 dollars. 44 (b) Definition of estimated tax. The term "estimated tax" means the 45 amount which an unincorporated business estimates to be its tax under 46 this chapter for the taxable year, less the amount which it estimates to 47 be the sum of any credits allowable against the tax other than the cred- 48 it allowable under subdivision (c) of section 11-503 of this chapter. 49 (c) Time for filing declaration. Except as hereinafter provided, a 50 declaration of estimated tax required under this section shall be filed 51 on or before April fifteenth of the taxable year provided, however, that 52 if the requirements of subdivision (a) of this section are first met: 53 (1) after April first and before June second of the taxable year, the 54 declaration shall be filed on or before June fifteenth, or 55 (2) after June first and before September second of the taxable year, 56 the declaration shall be filed on or before September fifteenth, orS. 8474 397 1 (3) after September first of the taxable year, the declaration shall 2 be filed on or before January fifteenth of the succeeding year. 3 (d) Filing of declarations on or before January fifteenth. 4 (1) A declaration of estimated tax by an unincorporated business 5 having an estimated unincorporated business taxable income from farming, 6 including oyster farming, for the taxable year which is at least two- 7 thirds of its total estimated unincorporated business taxable income for 8 the taxable year may be filed at any time on or before January fifteenth 9 of the succeeding year. 10 (2) For taxable years beginning before nineteen hundred ninety-seven, 11 a declaration of estimated tax under this section of forty dollars or 12 less for the taxable year may be filed at any time on or before January 13 fifteenth of the succeeding year under regulations of the commissioner 14 of finance. 15 (e) Amendments of declaration. An unincorporated business may amend a 16 declaration under regulations of the commissioner of finance. 17 (f) Return as declaration or amendment. If on or before February 18 fifteenth of the succeeding taxable year an unincorporated business 19 subject to the estimated tax requirements of this section files its 20 return for the taxable year for which the declaration is required, and 21 pays on or before such date the full amount of the tax shown to be due 22 on the return: 23 (1) such return shall be considered as its declaration if no declara- 24 tion was required to be filed during the taxable year, but is otherwise 25 required to be filed on or before January fifteenth of the succeeding 26 year, and 27 (2) such return shall be considered as the amendment permitted by 28 subdivision (e) of this section to be filed on or before January 29 fifteenth if the tax shown on the return is greater than the estimated 30 tax shown in a declaration previously made. 31 (g) Fiscal year. This section shall apply to a taxable year other 32 than a calendar year by the substitution of the months of such fiscal 33 year for the corresponding months specified in this section. 34 (h) Short taxable year. An unincorporated business subject to the 35 estimated tax requirements of this section and having a taxable year of 36 less than twelve months shall make a declaration in accordance with 37 regulations of the commissioner of finance. 38 (i) Declaration of unincorporated business under a disability. The 39 declaration of estimated tax for an unincorporated business which is 40 unable to make a declaration for any reason shall be made and filed by 41 the committee, fiduciary or other person charged with the care of the 42 property of such unincorporated business, other than a receiver in 43 possession of only a part of such property, or by his or her duly 44 authorized agent. 45 (j) Declaration of estimated tax for taxable years beginning prior to 46 July thirteenth, nineteen hundred sixty-six. Notwithstanding subdivision 47 (c) of this section, no declaration of estimated tax required by subdi- 48 vision (a) of this section need be filed until September twelfth, nine- 49 teen hundred sixty-six. 50 § 11-512 Payments of estimated tax. (a) General. The estimated tax 51 with respect to which a declaration is required shall be paid as 52 follows: 53 (1) If the declaration is filed on or before April fifteenth of the 54 taxable year, the estimated tax shall be paid in four equal install- 55 ments. The first installment shall be paid at the time of the filing of 56 the declaration, and the second, third and fourth installments shall beS. 8474 398 1 paid on the following June fifteenth, September fifteenth, and January 2 fifteenth, respectively. 3 (2) If the declaration is filed after April fifteenth and not after 4 June fifteenth of the taxable year, and is not required to be filed on 5 or before April fifteenth of the taxable year, the estimated tax shall 6 be paid in three equal installments. The first installment shall be 7 paid at the time of the filing of the declaration, and the second and 8 third installments shall be paid on the following September fifteenth 9 and January fifteenth, respectively. 10 (3) If the declaration is filed after June fifteenth and not after 11 September fifteenth of the taxable year, and is not required to be filed 12 on or before June fifteenth of the taxable year, the estimated tax shall 13 be paid in two equal installments. The first installment shall be paid 14 at the time of the filing of the declaration, and the second shall be 15 paid on the following January fifteenth. 16 (4) If the declaration is filed after September fifteenth of the taxa- 17 ble year, and is not required to be filed on or before September 18 fifteenth of the taxable year, the estimated tax shall be paid in full 19 at the time of the filing of the declaration. 20 (5) If the declaration is filed after the time prescribed therefor, or 21 after the expiration of any extension of time therefor, paragraphs two, 22 three and four of this subdivision shall not apply, and there shall be 23 paid at the time of such filing all installments of estimated tax paya- 24 ble at or before such time, and the remaining installments shall be paid 25 at the times at which, and in the amounts in which, they would have been 26 payable if the declaration had been filed when due. 27 (b) Amendments of declaration. If any amendment of a declaration is 28 filed, the remaining installments, if any, shall be ratably increased or 29 decreased, as the case may be, to reflect any increase or decrease in 30 the estimated tax by reason of such amendment, and if any amendment is 31 made after September fifteenth of the taxable year, any increase in the 32 estimated tax by reason thereof shall be paid at the time of making such 33 amendment. 34 (c) Application to short taxable year. This section shall apply to a 35 taxable year of less than twelve months in accordance with regulations 36 of the commissioner of finance. 37 (d) Fiscal year. This section shall apply to a taxable year other 38 than a calendar year by the substitution of the months of such fiscal 39 year for the corresponding months specified in this section. 40 (e) Installments paid in advance. An unincorporated business may elect 41 to pay any installment of its estimated tax prior to the date prescribed 42 for the payment thereof. 43 (f) Cross reference. For unincorporated businesses with taxable years 44 beginning prior to July thirteenth, nineteen hundred sixty-six, see 45 subdivision (j) of section 11-511 of this chapter. 46 (g) Taxpayers with credit relating to stock transfer tax. The portion 47 of an overpayment attributable to a credit allowable pursuant to subdi- 48 vision (c) of section 11-503 of this chapter may not be credited against 49 any payment due under this section. 50 § 11-513 Accounting periods and methods. (a) Accounting periods. A 51 taxpayer's taxable year under this chapter shall be the same as the 52 taxpayer's taxable year for federal income tax purposes. 53 (b) Accounting methods. A taxpayer's method of accounting under this 54 chapter shall be the same as the taxpayer's method of accounting for 55 federal income tax purposes. In the absence of any method of accounting 56 for federal income tax purposes, unincorporated business taxable incomeS. 8474 399 1 shall be computed under such method as in the opinion of the commission- 2 er of finance clearly reflects income. 3 (c) Change of accounting period or method. (1) If a taxpayer's taxa- 4 ble year or method of accounting is changed for federal income tax 5 purposes, the taxable year or method of accounting for purposes of this 6 chapter shall be similarly changed. 7 (2) If a taxpayer's method of accounting is changed, other than from 8 an accrual to an installment method, any additional tax which results 9 from adjustments determined to be necessary solely by reason of the 10 change shall not be greater than if such adjustments were ratably allo- 11 cated and included for the taxable year of the change and the preceding 12 taxable years, not in excess of two, beginning after January first, 13 nineteen hundred sixty-six, during which the taxpayer used the method of 14 accounting from which the change is made. 15 (3) If a taxpayer's method of accounting is changed from an accrual 16 to an installment method, any additional tax for the year of such change 17 of method and for any subsequent year, which is attributable to the 18 receipt of installment payments properly accrued in a prior year, shall 19 be reduced by the portion of tax for any prior taxable year attributable 20 to the accrual of such installment payments, in accordance with regu- 21 lations of the commissioner of finance. 22 § 11-514 Returns, payment of tax. (a) General. An unincorporated 23 business income tax return shall be made and filed, and the balance of 24 any tax shown on the face of such return, not previously paid as 25 installments of estimated tax, shall be paid, on or before the fifteenth 26 day of the fourth month following the close of a taxable year, except 27 that in the case of an unincorporated business classified as a partner- 28 ship for federal income tax purposes, such return shall be made and 29 filed and such balance shall be paid on or before the fifteenth day of 30 the third month following the close of a taxable year for taxable years 31 beginning on or after January first, two thousand sixteen, by or for 32 every: 33 (1) unincorporated business, for taxable years beginning after nine- 34 teen hundred eighty-six but before nineteen hundred ninety-seven, having 35 unincorporated business gross income, determined for purposes of this 36 subdivision without any deduction for the cost of goods sold or services 37 performed, of more than ten thousand dollars, or having any amount of 38 unincorporated business taxable income; 39 (2) partnership, for taxable years beginning after nineteen hundred 40 ninety-six, having unincorporated business gross income, determined for 41 purposes of this subdivision without any deduction for the cost of goods 42 sold or services performed, of more than twenty-five thousand dollars, 43 or having unincorporated business taxable income of more than fifteen 44 thousand dollars; 45 (3) unincorporated business other than a partnership, for taxable 46 years beginning after nineteen hundred ninety-six, having unincorporated 47 business gross income, determined for purposes of this subdivision with- 48 out any deduction for the cost of goods sold or services performed, of 49 more than seventy-five thousand dollars, or having unincorporated busi- 50 ness taxable income of more than thirty-five thousand dollars; and 51 (4) unincorporated business, for taxable years beginning after two 52 thousand eight, having unincorporated business gross income, determined 53 for purposes of this subdivision without any deduction for the cost of 54 goods sold or services performed, of more than ninety-five thousand 55 dollars.S. 8474 400 1 (b) Decedents. The return for any deceased individual shall be made 2 and filed by his or her executor, administrator, or other person charged 3 with his or her property. If a final return of a decedent is for a 4 fractional part of a year, the due date of such return shall be the 5 fifteenth day of the fourth month following the close of the twelve- 6 month period which began with the first day of such fractional part of 7 the year. 8 (c) Individuals under a disability. The return for an individual who 9 is unable to make a return by reason of minority or other disability 10 shall be made and filed by such individual's guardian, committee, fidu- 11 ciary or other person charged with the care of his or her person or 12 property, other than a receiver in possession of only a part of his or 13 her property, or by such individual's duly authorized agent. 14 (d) Estates and trusts. The return for an estate or trust shall be 15 made and filed by the fiduciary. 16 (e) Joint fiduciaries. If two or more fiduciaries are acting jointly, 17 the return may be made by any one of them. 18 (f) Returns for taxable years ending prior to December thirty-first, 19 nineteen hundred sixty-six. With respect to taxable years ending prior 20 to December thirty-first, nineteen hundred sixty-six, the returns 21 required to be made and filed pursuant to this section shall be made and 22 filed on or before the fifteenth day of the fourth month following the 23 close of such taxable year or September twelfth, nineteen hundred 24 sixty-six, whichever is later. 25 (g) Taxpayers with credit relating to stock transfer tax. Subdivision 26 (a) of this section shall apply to a taxpayer which has a right to a 27 credit pursuant to subdivision (c) of section 11-503 of this chapter, 28 except that the tax, or balance thereof, payable to the commissioner of 29 finance in full pursuant to subdivision (a) of this section, at the time 30 the report is required to be filed, shall be calculated and paid at such 31 time as if the credit provided for in subdivision (c) of section 11-503 32 of this chapter were not allowed. 33 § 11-515 Time and place for filing returns and paying tax. A person 34 required to make and file a return under this chapter shall, without 35 assessment, notice or demand, pay any tax due thereon to the commission- 36 er of finance on or before the date fixed for filing such return, deter- 37 mined without regard to any extension of time for filing the return. 38 The commissioner of finance shall prescribe by regulation the place for 39 filing any return, declaration, statement, or other document required 40 pursuant to this chapter and for payment of any tax. 41 § 11-516 Signing of returns and other documents. (a) General. Any 42 return, declaration, statement or other document required to be made 43 pursuant to this chapter shall be signed in accordance with regulations 44 or instructions prescribed by the commissioner of finance. The fact 45 that an individual's name is signed to a return, declaration, statement, 46 or other document, shall be prima facie evidence for all purposes that 47 the return, declaration, statement or other document was actually signed 48 by such individual. 49 (b) Partnerships. Any return, statement or other document required of 50 a partnership shall be signed by one or more partners. The fact that a 51 partner's name is signed to a return, statement, or other document, 52 shall be prima facie evidence for all purposes that such partner is 53 authorized to sign on behalf of the partnership. 54 (c) Certifications. The making or filing of any return, declaration, 55 statement or other document or copy thereof required to be made or filed 56 pursuant to this chapter, including a copy of a federal return, shallS. 8474 401 1 constitute a certification by the person making or filing such return, 2 declaration, statement or other document or copy thereof that the state- 3 ments contained therein are true and that any copy filed is a true copy. 4 § 11-517 Extensions of time. (a) General. The commissioner of 5 finance may grant a reasonable extension of time for payment of tax or 6 estimated tax, or any installment, or for filing any return, declara- 7 tion, statement, or other document required pursuant to this chapter, on 8 such terms and conditions as it may require. Except for a taxpayer who 9 is outside the United States, no such extension for filing any return, 10 declaration, statement or other document, shall exceed six months. 11 (b) Furnishing of security. If any extension of time is granted for 12 payment of any amount of tax, the commissioner of finance may require 13 the taxpayer to furnish a bond or other security in an amount not 14 exceeding twice the amount for which the extension of time for payment 15 is granted, on such terms and conditions as the commissioner of finance 16 may require. 17 § 11-518 Requirements concerning returns, notices, records and state- 18 ments. (a) General. The commissioner of finance may prescribe regu- 19 lations as to the keeping of records, the content and forms of returns 20 and statements, and the filing of copies of federal income tax returns 21 and determinations. The commissioner of finance may require any person, 22 by regulation or notice served upon such person, to make such returns, 23 render such statements, or keep such records, as the commissioner of 24 finance may deem sufficient to show whether or not such person is liable 25 under this chapter for tax or for collection of tax. 26 (b) Notice of qualification as receiver, etc. Every receiver, trustee 27 in bankruptcy, assignee for benefit of creditors, or other like fiduci- 28 ary shall give notice of his or her qualification as such to the commis- 29 sioner of finance, as may be required by regulation. 30 § 11-519 Report of change in federal or New York state taxable 31 income. If the amount of a taxpayer's federal or New York state taxable 32 income reported on his or her federal or New York state income tax for 33 any taxable year is changed or corrected by the United States internal 34 revenue service or the New York state tax commission or other competent 35 authority, or as the result of a renegotiation of a contract or subcon- 36 tract with the United States or the state of New York, or if a taxpayer, 37 pursuant to subsection (d) of section sixty-two hundred thirteen of the 38 internal revenue code, executes a notice of waiver of the restrictions 39 provided in subsection (a) of said section, or if a taxpayer, pursuant 40 to subsection (f) of section six hundred eighty-one of the tax law, 41 executes a notice or waiver of the restrictions provided in subsection 42 (c) of such section of the tax law, the taxpayer shall report such 43 change or correction in federal or New York state taxable income or such 44 execution of such notice of waiver and the changes or corrections of the 45 taxpayer's federal or New York state taxable income on which it is 46 based, within ninety days after the final determination of such change, 47 correction, or renegotiation, or such execution of such notice of waiv- 48 er, or as otherwise required by the commissioner of finance, and shall 49 concede the accuracy of such determination or state wherein it is erro- 50 neous. Any taxpayer filing an amended federal or New York state income 51 tax return shall also file within ninety days thereafter an amended 52 return under this chapter, and shall give such information as the 53 commissioner of finance may require. The commissioner of finance may by 54 regulation prescribe such exceptions to the requirements of this section 55 as the commissioner deems appropriate.S. 8474 402 1 § 11-519.1 Report of change of state sales and compensating use tax 2 liability. Where the state tax commission changes or corrects a taxpay- 3 er's sales and compensating use tax liability with respect to the 4 purchase or use of items for which a sales or compensating use tax cred- 5 it against the tax imposed by this chapter was claimed, the taxpayer 6 shall report such change or correction to the commissioner of finance 7 within ninety days of the final determination of such change or 8 correction, or as required by the commissioner of finance, and shall 9 concede the accuracy of such determination or state wherein it is erro- 10 neous. Any taxpayer filing an amended return or report relating to the 11 purchase or use of such items shall also file within ninety days there- 12 after a copy of such amended return or report with the commissioner of 13 finance. 14 § 11-520 Change of election. Any election expressly authorized by 15 this chapter, other than the election authorized by section 11-506 of 16 this chapter, may be changed on such terms and conditions as the commis- 17 sioner of finance may prescribe by regulation. 18 § 11-521 Notice of deficiency. (a) General. If upon examination of a 19 taxpayer's return under this chapter the commissioner of finance deter- 20 mines that there is a deficiency of income tax, the commissioner may 21 mail a notice of deficiency to the taxpayer. If a taxpayer fails to file 22 a return required under this chapter, the commissioner of finance is 23 authorized to estimate the taxpayer's city unincorporated business taxa- 24 ble income and tax thereon, from any information in the commissioner's 25 possession, and to mail a notice of deficiency to the taxpayer. A notice 26 of deficiency shall be mailed by certified or registered mail to the 27 taxpayer at his or her last known address in or out of the city. If the 28 taxpayer is deceased or under a legal disability, a notice of deficiency 29 may be mailed to his or her last known address in or out of the city, 30 unless the commissioner of finance has received notice of the existence 31 of a fiduciary relationship with respect to the taxpayer. 32 (b) Notice of deficiency as assessment. After ninety days from the 33 mailing of a notice of deficiency or, if the commissioner of finance has 34 established a conciliation procedure pursuant to section 11-124 of this 35 title and the taxpayer has requested a conciliation conference in 36 accordance therewith, after ninety days from the mailing of the concil- 37 iation decision or the date of the commissioner's confirmation of the 38 discontinuance of the conciliation proceeding, such notice shall be an 39 assessment of the amount of tax specified therein, together with the 40 interest, additions to tax and penalties stated in such notice, except 41 only for any such tax or other amounts as to which the taxpayer has 42 within such ninety day period filed with the tax appeals tribunal a 43 petition under section 11-529 of this chapter. If the notice of defi- 44 ciency or conciliation decision is addressed to a person outside of the 45 United States, such period shall be one hundred fifty days instead of 46 ninety days. 47 (c) Restrictions on assessment and levy. No assessment of a deficiency 48 in tax and no levy or proceeding in court for its collection shall be 49 made, begun or prosecuted, except as otherwise provided in section 50 11-534 of this chapter, until a notice of deficiency has been mailed to 51 the taxpayer, nor until the expiration of the time for filing a petition 52 with the tax appeals tribunal contesting such notice, nor, if a petition 53 with respect to the taxable year has been both served upon the commis- 54 sioner of finance and filed with the tax appeals tribunal, until the 55 decision of the tax appeals tribunal has become final. For exception inS. 8474 403 1 the case of judicial review of the decision of the tax appeals tribunal, 2 see subdivision (c) of section 11-530 of this chapter. 3 (d) Exceptions for mathematical errors. If a mathematical error 4 appears on a return, including an overstatement of the amount paid as 5 estimated tax, the commissioner of finance shall notify the taxpayer 6 that an amount of tax in excess of that shown upon the return is due, 7 and that such excess has been assessed. 8 Such notice shall not be considered as a notice of deficiency for the 9 purposes of this section, subdivision (f) of section 11-527 of this 10 chapter, limiting credits or refunds after petition to the tax appeals 11 tribunal, or subdivision (b) of section 11-529 of this chapter, author- 12 izing the filing of a petition with the tax appeals tribunal based on a 13 notice of deficiency, nor shall such assessment or collection be prohib- 14 ited by the provisions of subdivision (c) of this section. 15 (e) Exception where change in federal or New York state taxable income 16 is not reported. 17 (1) If the taxpayer fails to comply with section 11-519 of this chap- 18 ter in not reporting a change or correction increasing or decreasing the 19 taxpayer's federal or New York state taxable income as reported on the 20 taxpayer's federal or New York state return or in not reporting a change 21 or correction which is treated in the same manner as if it were a defi- 22 ciency for federal or New York state income tax purposes or in not 23 filing an amended return or in not reporting the execution of a notice 24 of waiver described in such section, instead of the mode and time of 25 assessment provided for in subdivision (b) of this section, the commis- 26 sioner of finance may assess a deficiency based upon such changed or 27 corrected federal or New York state taxable income by mailing to the 28 taxpayer a notice of additional tax due specifying the amount of the 29 deficiency, and such deficiency, together with the interest, additions 30 to tax and penalties stated in such notice, shall be deemed assessed on 31 the date such notice is mailed unless within thirty days after the mail- 32 ing of such notice a report of the federal or New York state change or 33 correction or an amended return, where such return was required by 34 section 11-519 of this chapter, is filed accompanied by a statement 35 showing wherein such federal or New York state determination and such 36 notice of additional tax due are erroneous. 37 (2) Such notice shall not be considered as a notice of deficiency for 38 the purposes of this section, subdivision (f) of section 11-527 of this 39 chapter, limiting credits or refunds after petition to the tax appeals 40 tribunal, or subdivision (b) of section 11-529 of this chapter, author- 41 izing the filing of a petition with the tax appeals tribunal based on a 42 notice of deficiency, nor shall such assessment or collection thereof be 43 prohibited by the provisions of subdivision (c) of this section. 44 (3) If the taxpayer is deceased or under a legal disability, a notice 45 of additional tax due may be mailed to his or her last known address in 46 or out of the city, unless the commissioner of finance has received 47 notice of the existence of a fiduciary relationship with respect to the 48 taxpayer. 49 (f) Waiver of restrictions. The taxpayer shall at any time, whether or 50 not a notice of deficiency has been issued, have the right to waive the 51 restrictions on assessment and collection of the whole or any part of 52 the deficiency by a signed notice in writing filed with the commissioner 53 of finance. 54 (g) Deficiency defined. For purposes of this chapter, a deficiency 55 means the amount of the tax imposed by this chapter, less (i) the amount 56 shown as the tax upon the taxpayer's return, whether the return was madeS. 8474 404 1 or the tax computed by the taxpayer or by the commissioner of finance, 2 and less, (ii) the amounts previously assessed, or collected without 3 assessment, as a deficiency and plus (iii) the amount of any rebates. 4 For the purpose of this definition, the tax imposed by this chapter and 5 the tax shown on the return shall both be determined without regard to 6 payments on account of estimated tax; and a rebate means so much of an 7 abatement, credit, refund or other repayment, whether or not erroneous, 8 made on the ground that the amounts entering into the definition of a 9 deficiency showed a balance in favor of the taxpayer. 10 (h) Exception where change or correction of sales and compensating use 11 tax liability is not reported. (1) If a taxpayer fails to comply with 12 section 11-519.1 of this chapter in not reporting a change or correction 13 of his or her sales and compensating use tax liability or in not filing 14 a copy of an amended return or report relating to his or her sales and 15 compensating use tax liability, instead of the mode and time of assess- 16 ment provided for in subdivision (b) of this section, the commissioner 17 of finance may assess a deficiency based upon such changed or corrected 18 sales and compensating use tax liability, as same relates to credits 19 claimed under this chapter by mailing to the taxpayer a notice of addi- 20 tional tax due specifying the amount of the deficiency, and such defi- 21 ciency, together with the interest, additions to tax and penalties stat- 22 ed in such notice, shall be deemed assessed on the date such notice is 23 mailed unless within thirty days after the mailing of such notice a 24 report of the state change or correction or a copy of an amended return 25 or report, where such copy was required by section 11-519.1 of this 26 chapter, is filed accompanied by a statement showing where such state 27 determination and such notice of additional tax due are erroneous. 28 (2) Such notice shall not be considered as a notice of deficiency for 29 the purposes of this section, subdivision (f) of section 11-527 of this 30 chapter, limiting credits or refunds after petition to the tax appeals 31 tribunal, or subdivision (b) of section 11-529 of this chapter, author- 32 izing the filing of a petition with the tax appeals tribunal based on a 33 notice of deficiency, nor shall such assessment or the collection there- 34 of be prohibited by the provisions of subdivision (c) of this section. 35 (3) If the taxpayer is deceased or under a legal disability, a notice 36 of additional tax due may be mailed to his or her last known address in 37 or out of the city, and such notice shall be sufficient for purposes of 38 this chapter. If the commissioner of finance has received notice that a 39 person is acting for the taxpayer in a fiduciary capacity, a copy of 40 such notice shall also be mailed to the fiduciary named in such notice. 41 § 11-522 Assessment. (a) Assessment date. The amount of tax which a 42 return shows to be due, or the amount of tax which a return would have 43 shown to be due but for a mathematical error, shall be deemed to be 44 assessed on the date of filing of the return, including any amended 45 return showing an increase of tax. In the case of a return properly 46 filed without computation of tax, the tax computed by the commissioner 47 of finance shall be deemed to be assessed on the date on which payment 48 is due. If a notice of deficiency has been mailed, the amount of the 49 deficiency shall be deemed to be assessed on the date specified in 50 subdivision (b) of section 11-521 of this chapter if no petition is both 51 served on the commissioner of finance and filed with the tax appeals 52 tribunal, or if a petition is filed, then upon the date when a decision 53 of the tax appeals tribunal establishing the amount of the deficiency 54 becomes final. 55 If an amended return or report filed pursuant to section 11-519 of 56 this chapter concedes the accuracy of a federal or New York stateS. 8474 405 1 adjustment, change or correction, any deficiency in tax under this chap- 2 ter resulting therefrom shall be deemed to be assessed on the date of 3 filing such report or amended return, and such assessment shall be time- 4 ly notwithstanding section 11-523 of this chapter. 5 If a report or amended return or report filed pursuant to section 6 11-519.1 of this chapter concedes the accuracy of a state change or 7 correction of sales and compensating use tax liability, any deficiency 8 in tax under this chapter resulting therefrom shall be deemed assessed 9 on the date of filing such report, and such assessment shall be timely 10 notwithstanding section 11-523 of this chapter. 11 If a notice of additional tax due, as prescribed in subdivision (e) of 12 section 11-521 of this chapter has been mailed, the amount of the defi- 13 ciency shall be deemed to be assessed on the date specified in such 14 subdivision unless within thirty days after the mailing of such notice a 15 report of the federal or New York state change or correction or an 16 amended return, where such return was required by section 11-519 of this 17 chapter is filed accompanied by a statement showing wherein such federal 18 or New York state determination and such notice of additional tax due 19 are erroneous. 20 If a notice of additional tax due, as prescribed in subdivision (h) of 21 section 11-521 of this chapter, has been mailed, the amount of the defi- 22 ciency shall be deemed to be assessed on the date specified in such 23 subdivision unless within thirty days after the mailing of such notice a 24 report of the state change or correction, or a copy of an amended return 25 or report, where such copy was required by section 11-519.1 of this 26 chapter, is filed accompanied by a statement showing wherein such state 27 determination and such notice of additional tax due are erroneous. 28 Any amount paid as a tax or in respect of a tax, other than amounts 29 paid as estimated income tax, shall be deemed to be assessed upon the 30 date of receipt of payment, notwithstanding any other provisions. 31 (b) Other assessment powers. If the mode or time for the assessment of 32 any tax under this chapter, including interest, additions to tax and 33 assessable penalties, is not otherwise provided for, the commissioner of 34 finance may establish the same by regulations. 35 (c) Estimated income tax. No unpaid amount of estimated tax under 36 section one hundred sixteen shall be assessed. 37 (d) Supplemental assessment. The commissioner of finance may, at any 38 time within the period prescribed for assessment, make a supplemental 39 assessment, subject to the provisions of section 11-521 of this chapter 40 where applicable, whenever it is ascertained that any assessment is 41 imperfect or incomplete in any material respect. 42 (e) Cross-reference. For assessment in case of jeopardy, see section 43 11-534 of this chapter. 44 § 11-523 Limitations on assessment. (a) General. Except as otherwise 45 provided in this section, any tax under this chapter shall be assessed 46 within three years after the return was filed, whether or not such 47 return was filed on or after the date prescribed. 48 (b) Time return deemed filed. For purposes of this section a return 49 of tax filed before the last day prescribed by law or by regulations 50 promulgated pursuant to law for the filing thereof, shall be deemed to 51 be filed on such last day. 52 (c) Exceptions. (1) Assessment at any time. The tax may be assessed 53 at any time if: 54 (A) no return is filed, 55 (B) a false or fraudulent return is filed with intent to evade tax,S. 8474 406 1 (C) the taxpayer fails to comply with section 11-519 of this chapter 2 in not reporting a change or correction increasing or decreasing the 3 taxpayer's federal or New York state taxable income as reported on the 4 taxpayer's federal or New York state income tax return, or the execution 5 of a notice of waiver and the changes or corrections on which it is 6 based or in not reporting a change or correction which is treated in the 7 same manner as if it were a deficiency for federal or New York state 8 income tax purposes, or in not filing an amended return, or 9 (D) the taxpayer fails to file a report or amended return or report 10 required under section 11-519.1 of this chapter, in respect of a change 11 or correction of sales and compensating use tax liability, relating to 12 the purchase or use of items for which a sales or compensating use tax 13 credit against the tax imposed by this chapter was claimed. 14 (2) Extension by agreement. Where, before the expiration of the time 15 prescribed in this section for the assessment of tax, both the commis- 16 sioner of finance and the taxpayer have consented in writing to its 17 assessment after such time, the tax may be assessed at any time prior to 18 the expiration of the period agreed upon. The period so agreed upon may 19 be extended by subsequent agreements in writing made before the expira- 20 tion of the period previously agreed upon. 21 (3) Report of changed or corrected federal or New York state income. 22 If the taxpayer shall, pursuant to section 11-519 of this chapter, 23 report a change or correction or file an amended return increasing or 24 decreasing federal or New York state taxable income or report the 25 execution of a notice of waiver and the changes and corrections on which 26 it is based, or a change or correction which is treated in the same 27 manner as if it were a deficiency for federal or New York state income 28 tax purposes, the assessment, if not deemed to have been made upon the 29 filing of the report or amended return, may be made at any time within 30 two years after such report or amended return was filed. The amount of 31 such assessment of tax shall not exceed the amount of the increase in 32 city tax attributable to such federal or New York state change or 33 correction. The provisions of this paragraph shall not affect the time 34 within which or the amount for which an assessment may otherwise be 35 made. 36 (4) Deficiency attributable to net operating loss carryback. If a 37 deficiency is attributable to the application to the taxpayer of a net 38 operating loss carryback, it may be assessed at any time that a defi- 39 ciency for the taxable year of the loss may be assessed. 40 (5) Recovery of erroneous refund. An erroneous refund shall be 41 considered an underpayment of tax on the date made, and an assessment of 42 a deficiency arising out of an erroneous refund may be made at any time 43 within two years from the making of the refund, except that the assess- 44 ment may be made within five years from the making of the refund if it 45 appears that any part of the refund was induced by fraud or misrepresen- 46 tation of a material fact. 47 (6) Request for prompt assessment. If a return is required for a 48 decedent or for his or her estate during the period of administration, 49 the tax shall be assessed within eighteen months after written request 50 therefor, made after the return is filed, by the executor, administrator 51 or other person representing the estate of such decedent, but not more 52 than three years after the return was filed, except as otherwise 53 provided in this subdivision and subdivision (d) of this section. 54 (7) Report on use of certain property. Under the circumstances 55 described in paragraph two of subdivision (b) of section 11-509 of this 56 chapter, the tax may be assessed within three years after the filing ofS. 8474 407 1 a return reporting that property has been used for purposes other than 2 research and development to a greater extent than originally reported. 3 (8) Report concerning waste treatment facility. Under the circum- 4 stances described in paragraph (i) of section 11-507 of this chapter, 5 the tax may be assessed within three years after the filing of the 6 return containing the information required by such paragraph. 7 (9) Report of changed or corrected sales and compensating use tax 8 liability. If the taxpayer files a report or amended return or report 9 required under section 11-519.1 of this chapter, in respect of a change 10 or correction of sales and compensating use tax liability, the assess- 11 ment, if not deemed to have been made upon the filing of the report, may 12 be made at any time within two years after such report or amended return 13 or report was filed. The amount of such assessment of tax shall not 14 exceed the amount of the increase in city tax attributable to such state 15 change or correction. The provisions of this paragraph shall not affect 16 the time within which or the amount for which an assessment may other- 17 wise be made. 18 (d) Omission of income on return. The tax may be assessed at any time 19 within six years after the return was filed if (1) a taxpayer omits from 20 his or her city unincorporated business gross income an amount properly 21 includible therein which is in excess of twenty-five per centum of the 22 amount of city unincorporated business gross income stated in the 23 return, or (2) an estate or trust omits income from its return in an 24 amount in excess of twenty-five percent of its income determined as if 25 it were an individual. 26 For purposes of this subdivision there shall not be taken into account 27 any amount which is omitted in the return if such amount is disclosed in 28 the return, or in a statement attached to the return, in a manner 29 adequate to apprise the commissioner of finance of the nature and amount 30 of such item. 31 (e) Suspension of running of period of limitation. The running of the 32 period of limitations on assessment or collection of tax or other 33 amount, or of a transferee's liability, shall, after the mailing of a 34 notice of deficiency, be suspended for the period during which the 35 commissioner of finance is prohibited under subdivision (c) of section 36 11-521 of this chapter from making the assessment or from collecting by 37 levy. 38 § 11-524 Interest on underpayment. (a) General. If any amount of tax 39 is not paid on or before the last date prescribed in this chapter for 40 payment, interest on such amount at the underpayment rate set by the 41 commissioner of finance pursuant to section 11-537 of this chapter, or, 42 if no rate is set, at the rate of seven and one-half percent per annum 43 shall be paid for the period from such last date to the date paid, 44 whether or not any extension of time for payment was granted. Interest 45 under this subdivision shall not be paid if the amount thereof is less 46 than one dollar. 47 (b) Exception as to estimated tax. This section shall not apply to 48 any failure to pay estimated tax under section 11-512 of this chapter. 49 (c) Exception for mathematical error. No interest shall be imposed on 50 any underpayment of tax due solely to mathematical error if the taxpayer 51 files a return within the time prescribed in this chapter, including any 52 extension of time, and pays the amount of underpayment within three 53 months after the due date of such return, as it may be extended. 54 (d) Suspension of interest on deficiencies. If a waiver of 55 restrictions on assessment of a deficiency has been filed by the taxpay- 56 er, and if notice and demand by the commissioner of finance for paymentS. 8474 408 1 of such deficiency is not made within thirty days after the filing of 2 such waiver, interest shall not be imposed on such deficiency for the 3 period beginning immediately after such thirtieth day and ending with 4 the date of notice and demand. 5 (e) Tax reduced by carryback. If the amount of tax for any taxable 6 year is reduced by reason of a carryback of a net operating loss, such 7 reduction in tax shall not affect the computation of interest under this 8 section for the period ending with the filing date for the taxable year 9 in which the net operating loss arises. Such filing date shall be deter- 10 mined without regard to extensions of time to file. 11 (f) Interest treated as tax. Interest under this section shall be 12 paid upon notice and demand and shall be assessed, collected and paid in 13 the same manner as tax. Any reference in this chapter to the tax 14 imposed by this chapter shall be deemed also to refer to interest 15 imposed by this section on such tax. 16 (g) Interest on penalties or additions to tax. Interest shall be 17 imposed under subdivision (a) of this section in respect of any assessa- 18 ble penalty or addition to tax only if such assessable penalty or addi- 19 tion to tax is not paid within ten days from the date of the notice and 20 demand therefor under subdivision (b) of section 11-532 of this chapter, 21 and in such case interest shall be imposed only for the period from such 22 date of the notice and demand to the date of payment. 23 (h) Payment within ten days after notice and demand. If notice and 24 demand is made for payment of any amount under subdivision (b) of 25 section 11-532 of this chapter, and if such amount is paid within ten 26 days after the date of such notice and demand, interest under this 27 section on the amount so paid shall not be imposed for the period after 28 the date of such notice and demand. 29 (i) Limitation on assessment and collection. Interest prescribed 30 under this section may be assessed and collected at any time during the 31 period within which the tax or other amount to which such interest 32 relates may be assessed and collected, respectively. 33 (j) Interest on erroneous refund. Any portion of tax or other amount 34 which has been erroneously refunded, and which is recoverable by the 35 commissioner of finance, shall bear interest at the underpayment rate 36 set by the commissioner of finance pursuant to section 11-537 of this 37 chapter, or, if no rate is set, at the rate of seven and one-half 38 percent per annum from the date of the payment of the refund, but only 39 if it appears that any part of the refund was induced by fraud or a 40 misrepresentation of a material fact. 41 (k) Satisfaction by credits. If any portion of a tax is satisfied by 42 credit of an overpayment, then no interest shall be imposed under this 43 section on the portion of the tax so satisfied for any period during 44 which, if the credit had not been made, interest would have been allow- 45 able with respect to such overpayment. 46 § 11-525 Additions to tax and civil penalties. (a) (1) Failure to 47 file tax return. (A) In case of failure to file a tax return under this 48 chapter on or before the prescribed date, determined with regard to any 49 extension of time for filing, unless it is shown that such failure is 50 due to reasonable cause and not due to willful neglect, there shall be 51 added to the amount required to be shown as tax on such return five 52 percent of the amount of such tax if the failure is for not more than 53 one month, with an additional five percent for each additional month or 54 fraction thereof during which such failure continues, not exceeding 55 twenty-five percent in the aggregate.S. 8474 409 1 (B) In the case of a failure to file a tax return within sixty days of 2 the date prescribed for filing of such return, determined with regard to 3 any extension of time for filing, unless it is shown that such failure 4 is due to reasonable cause and not due to willful neglect, the addition 5 to tax under subparagraph (A) of this paragraph shall not be less than 6 the lesser of one hundred dollars or one hundred percent of the amount 7 required to be shown as tax on such return. 8 (C) For purposes of this paragraph, the amount of tax required to be 9 shown on the return shall be reduced by the amount of any part of the 10 tax which is paid on or before the date prescribed for payment of the 11 tax and by the amount of any credit against the tax which may be claimed 12 upon the return. 13 (2) Failure to pay tax shown on return. In case of failure to pay the 14 amounts shown as tax on any return required to be filed under this chap- 15 ter on or before the prescribed date, determined with regard to any 16 extension of time for payment, unless it is shown that such failure is 17 due to reasonable cause and not due to willful neglect, there shall be 18 added to the amount shown as tax on such return one-half of one percent 19 of the amount of such tax if the failure is not for more than one month, 20 with an additional one-half of one percent for each additional month or 21 fraction thereof during which such failure continues, not exceeding 22 twenty-five percent in the aggregate. For the purpose of computing the 23 addition for any month, the amount of tax shown on the return shall be 24 reduced by the amount of any part of the tax which is paid on or before 25 the beginning of such month and by the amount of any credit against the 26 tax which may be claimed upon the return. If the amount of tax required 27 to be shown on a return is less than the amount shown as tax on such 28 return, this paragraph shall be applied by substituting such lower 29 amount. 30 (3) Failure to pay tax required to be shown on return. In case of 31 failure to pay any amount in respect of any tax required to be shown on 32 a return required to be filed under this chapter which is not so shown, 33 including an assessment made pursuant to subdivision (a) of section 34 11-522 of this chapter, within ten days of the date of a notice and 35 demand therefor, unless it is shown that such failure is due to reason- 36 able cause and not due to willful neglect, there shall be added to the 37 amount of tax stated in such notice and demand one-half of one percent 38 of such tax if the failure is not for more than one month, with an addi- 39 tional one-half of one percent for each additional month or fraction 40 thereof during which such failure continues, not exceeding twenty-five 41 percent in the aggregate. For the purpose of computing the addition for 42 any month, the amount of tax stated in the notice and demand shall be 43 reduced by the amount of any part of the tax which is paid before the 44 beginning of such month. 45 (4) Limitations on additions. (A) With respect to any return the 46 amount of the addition under paragraph one of this subdivision shall be 47 reduced by the amount of the addition under paragraph two of this subdi- 48 vision for any month to which an addition applies under both paragraphs 49 one and two of this subdivision. In any case described in subparagraph 50 (B) of paragraph one of this subdivision, the amount of the addition 51 under such paragraph one shall not be reduced below the amount provided 52 in such subparagraph. 53 (B) With respect to any return, the maximum amount of the addition 54 permitted under paragraph three of this subdivision shall be reduced by 55 the amount of the addition under paragraph one of this subdivision, 56 determined without regard to subparagraph (B) of such paragraph one,S. 8474 410 1 which is attributable to the tax for which the notice and demand is made 2 and which is not paid within ten days of such notice and demand. 3 (b) Deficiency due to negligence. (1) If any part of a deficiency is 4 due to negligence or intentional disregard of this chapter or rules or 5 regulations hereunder, but without intent to defraud, there shall be 6 added to the tax an amount equal to five percent of the deficiency. 7 (2) There shall be added to the tax, in addition to the amount deter- 8 mined under paragraph one of this subdivision, an amount equal to fifty 9 percent of the interest payable under subdivision (a) of section 11-524 10 with respect to the portion of the deficiency described in such para- 11 graph one which is attributable to the negligence or intentional disre- 12 gard referred to in such paragraph one, for the period beginning on the 13 last date prescribed by law for payment of such deficiency, determined 14 without regard to any extension, and ending on the date of the assess- 15 ment of the tax, or, if earlier, the date of the payment of the tax. 16 (3) If any payment is shown on a return made by a payor with respect 17 to dividends, patronage dividends and interest under subsection (a) of 18 section six thousand forty-two, subsection (a) of section six thousand 19 forty-four or subsection (a) of section six thousand forty-nine of the 20 internal revenue code of nineteen hundred fifty-four, respectively, and 21 the payee fails to include any portion of such payment in unincorporated 22 business gross income, as that term is defined in section 11-506, any 23 portion of a deficiency attributable to such failure shall be treated, 24 for purposes of this subdivision, as due to negligence in the absence of 25 clear and convincing evidence to the contrary. If any addition to tax is 26 imposed under this subdivision by reason of this paragraph, the amount 27 of the addition to tax imposed by paragraph one of this subdivision 28 shall be five percent of the portion of the deficiency which is attrib- 29 utable to the failure described in this paragraph. 30 (c) Failure to file declaration or underpayment of estimated tax. If 31 any taxpayer fails to file a declaration of estimated tax or fails to 32 pay all or any part of an installment of estimated tax, the taxpayer 33 shall be deemed to have made an underpayment of estimated tax. There 34 shall be added to the tax for the taxable year an amount at the under- 35 payment rate set by the commissioner of finance pursuant to section 36 11-537 of this chapter, or, if no rate is set, at the rate of seven and 37 one-half percent per annum upon the amount of the underpayment for the 38 period of the underpayment but not beyond the fifteenth day of the 39 fourth month following the close of the taxable year. The amount of the 40 underpayment shall be the excess of the amount of the installment which 41 would be required to be paid if the estimated tax were equal to ninety 42 percent of the tax shown on the return for the taxable year, or if no 43 return was filed, ninety percent of the tax for such year, over the 44 amount, if any, of the installment paid on or before the last day 45 prescribed for such payment. No underpayment shall be deemed to exist 46 with respect to a declaration or installment otherwise due on or after 47 the taxpayer's death. In any case in which there would be no underpay- 48 ment if this subdivision were applied by substituting "eighty percent" 49 for "ninety percent" where it appears in this subdivision, the addition 50 to tax under this subdivision shall be equal to seventy-five percent of 51 the amount otherwise determined under this subdivision. 52 (d) Exception to addition for underpayment of estimated tax. The addi- 53 tion to tax under subdivision (c) of this section with respect to any 54 underpayment of any installment shall not be imposed if the total amount 55 of all payments of estimated tax made on or before the last dateS. 8474 411 1 prescribed for the payment of such installment equals or exceeds which- 2 ever of the following is the lesser: 3 (1) The amount which would have been required to be paid on or before 4 such date if the estimated tax were whichever of the following is the 5 least: 6 (A) The tax shown on the return of the taxpayer for the preceding 7 taxable year, if a return showing a liability for tax was filed by the 8 taxpayer for the preceding taxable year and such preceding year was a 9 taxable year of twelve months, or 10 (B) An amount equal to the tax computed, at the rates applicable to 11 the taxable year, but otherwise on the basis of the facts shown on the 12 taxpayer's return for, and the law applicable to, the preceding taxable 13 year, or 14 (C) An amount equal to ninety percent of the tax for the taxable year 15 computed by placing on an annualized basis the unincorporated business 16 taxable income for the months in the taxable year ending before the 17 month in which the installment is required to be paid. For purposes of 18 this subparagraph, the unincorporated business taxable income shall be 19 placed on an annualized basis by: 20 (i) multiplying by twelve, or, in the case of a taxable year of less 21 than twelve months, the number of months in the taxable year, the unin- 22 corporated business taxable income for the months in the taxable year 23 ending before the month in which the installment is required to be paid, 24 and 25 (ii) dividing the resulting amount by the number of months in the 26 taxable year ending before the month in which such installment date 27 falls, or 28 (D)(i) If the base period percentage for any six consecutive months of 29 the taxable year equals or exceeds seventy percent, an amount equal to 30 ninety percent of the tax determined in the following manner: 31 (I) take the unincorporated business taxable income for all months 32 during the taxable year preceding the filing month, 33 (II) divide such amount by the base period percentage for all months 34 during the taxable year preceding the filing month, 35 (III) determine the tax on the amounts determined under subclause (II) 36 of this clause, and 37 (IV) multiply the tax determined under subclause (III) of this clause 38 by the base period percentage for the filing month and all months during 39 the taxable year preceding the filing month. 40 (ii) For purposes of clause (i) of this subparagraph: 41 (I) the base period percentage for any period of months shall be the 42 average percent which the unincorporated business taxable income for the 43 corresponding months in each of the three preceding years bears to the 44 unincorporated business taxable income for the three preceding taxable 45 years. The commissioner of finance may by regulations provide for the 46 determination of the base period percentage in the case of new unincor- 47 porated businesses and other similar circumstances, and 48 (II) the term "filing month" means the month in which the installment 49 is required to be paid; 50 (2) An amount equal to ninety percent of the tax computed, at the 51 rates applicable to the taxable year, on the basis of the actual unin- 52 corporated business taxable income for the months in the taxable year 53 ending before the month in which the installment is required to be paid. 54 (e)(1) Except as provided in paragraph two of this subdivision, 55 subparagraphs (A) and (B) of paragraph one of subdivision (d) of this 56 section shall not apply in the case of any taxpayer which had unincorpo-S. 8474 412 1 rated business taxable income, or the portion thereof allocated within 2 the city, of one million dollars or more for any taxable year during the 3 three taxable years immediately preceding the taxable year involved. 4 (2) The amount treated as the estimated tax under subparagraphs (A) 5 and (B) of paragraph one of subdivision (d) of this section shall in no 6 event be less than seventy-five percent of the tax shown on the return 7 for the taxable year beginning in nineteen hundred eighty-three or, if 8 no return was filed, seventy-five percent of the tax for such year. 9 (f) Deficiency due to fraud. (1) If any part of a deficiency is due to 10 fraud, there shall be added to the tax an amount equal to two times of 11 the deficiency. 12 (2) The addition to tax under this subdivision shall be in lieu of any 13 other addition to tax imposed by subdivision (a) or (b) of this section. 14 (g) Additional penalty. Any taxpayer who with fraudulent intent shall 15 fail to pay any tax, or to make, render, sign or certify any return or 16 declaration of estimated tax, or to supply any information within the 17 time required by or under this chapter shall be liable to a penalty of 18 not more than one thousand dollars, in addition to any other amounts 19 required under this chapter, to be imposed, assessed and collected by 20 the commissioner of finance. The commissioner of finance shall have the 21 power, in his or her discretion, to waive, reduce or compromise any 22 penalty under this subdivision. 23 (h) Additions treated as tax. The additions to tax and penalties 24 provided by this section shall be paid upon notice and demand and shall 25 be assessed, collected and paid in the same manner as taxes, and any 26 reference in this chapter to tax or tax imposed by this chapter, shall 27 be deemed also to refer to the additions to tax and penalties provided 28 by this section. For purposes of section 11-521, this subdivision shall 29 not apply to: 30 (1) any addition to tax under subdivision (a) of this section except 31 as to that portion attributable to a deficiency; 32 (2) any addition to tax under subdivision (c) of this section; and 33 (3) any additional penalties under subdivisions (g) and (k) of this 34 section. 35 (i) Determination of deficiency. For purposes of subdivisions (b) and 36 (c) of this section, the amounts shown as the tax by the taxpayer upon 37 his or her return shall be taken into account in determining the amount 38 of the deficiency only if such return was filed on or before the last 39 day prescribed for the filing of such return, determined with regard to 40 any extension of time for such filing. 41 (j) Substantial understatement of liability. If there is a substantial 42 understatement of tax for any taxable year, there shall be added to the 43 tax an amount equal to ten percent of the amount of any underpayment 44 attributable to such understatement. For purposes of this subdivision, 45 there is a substantial understatement of tax for any taxable year if the 46 amount of the understatement for the taxable year exceeds the greater of 47 ten percent of the tax required to be shown on the return for the taxa- 48 ble year, or five thousand dollars. For purposes of the this subdivi- 49 sion, the term "understatement" means the excess of the amount of the 50 tax required to be shown on the return for the taxable year, over the 51 amount of the tax imposed which is shown on the return, reduced by any 52 rebate, within the meaning of subdivision (g) of section 11-521 of this 53 chapter. The amount of such understatement shall be reduced by that 54 portion of the understatement which is attributable to the tax treatment 55 of any item by the taxpayer if there is or was substantial authority for 56 such treatment, or any item with respect to which the relevant factsS. 8474 413 1 affecting the item's tax treatment are adequately disclosed in the 2 return or in a statement attached to the return. The commissioner of 3 finance may waive all or any part of the addition to tax provided by 4 this subdivision on a showing by the taxpayer that there was reasonable 5 cause for the understatement, or part thereof, and that the taxpayer 6 acted in good faith. 7 (k) Aiding or assisting in the giving of fraudulent returns, reports, 8 statements or other documents. (1) Any person who, with the intent that 9 tax be evaded, shall, for a fee or other compensation or as an incident 10 to the performance of other services for which such person receives 11 compensation, aid or assist in, or procure, counsel, or advise the prep- 12 aration or presentation under, or in connection with any matter arising 13 under this chapter of any return, report, declaration, statement or 14 other document which is fraudulent or false as to any material matter, 15 or supply any false or fraudulent information, whether or not such 16 falsity or fraud is with the knowledge or consent of the person author- 17 ized or required to present such return, report, declaration, statement 18 or other document shall pay a penalty not exceeding ten thousand 19 dollars. 20 (2) For purposes of paragraph one of this subdivision, the term 21 "procures" includes ordering, or otherwise causing, a subordinate to do 22 an act, and knowing of, and not attempting to prevent, participation by 23 a subordinate in an act. The term "subordinate" means any other person, 24 whether or not a member, employee, or agent of the taxpayer involved, 25 over whose activities the person has direction, supervision, or control. 26 (3) For purposes of paragraph one of this subdivision, a person 27 furnishing typing, reproducing, or other mechanical assistance with 28 respect to a document shall not be treated as having aided or assisted 29 in the preparation of such document by reason of such assistance. 30 (4) The penalty imposed by this subdivision shall be in addition to 31 any other penalty provided by law. 32 (l) False or fraudulent document penalty. Any taxpayer that submits a 33 false or fraudulent document to the department shall be subject to a 34 penalty of one hundred dollars per document submitted, or five hundred 35 dollars per tax return submitted. Such penalty shall be in addition to 36 any other penalty or addition provided by law. 37 § 11-526 Overpayment. (a) General. The commissioner of finance, 38 within the applicable period of limitations, may credit an overpayment 39 of tax and interest on such overpayment against any liability in respect 40 of any tax imposed by this title, on the person who made overpayment, 41 and the balance shall be refunded. Such credit of an overpayment shall 42 be applied before such overpayment, or any portion thereof, is paid to 43 the state commissioner of taxation and finance pursuant to section one 44 hundred seventy-one-m of the tax law. 45 (b) Credits against estimated tax. The commissioner of finance may 46 prescribe regulations providing for the crediting against the estimated 47 tax for any taxable year of the amount determined to be an overpayment 48 of the tax for a preceding taxable year. If any overpayment of tax is 49 so claimed as a credit against estimated tax for the succeeding taxable 50 year, such amount shall be considered as a payment of the tax for the 51 succeeding taxable year, whether or not claimed as a credit in the 52 declaration of estimated tax for such succeeding taxable year, and no 53 claim for credit or refund of such overpayment shall be allowed for the 54 taxable year for which the overpayment arises.S. 8474 414 1 (c) Rule where no tax liability. If there is no tax liability for a 2 period in respect of which an amount is paid as tax, such amount shall 3 be considered an overpayment. 4 (d) Assessment and collection after limitation period. If any amount 5 of income tax is assessed or collected after the expiration of the peri- 6 od of limitations properly applicable thereto, such amount shall be 7 considered an overpayment. 8 (e) Notwithstanding any provision of law in article fifty-two of the 9 civil practice law and rules to the contrary, the procedures for the 10 enforcement of money judgments shall not apply to the department of 11 finance, or to any officer or employee of the department of finance, as 12 a garnishee, with respect to any amount of money to be refunded or cred- 13 ited to a taxpayer under this chapter. 14 § 11-527 Limitation on credit or refund. (a) General. Claim for credit 15 or refund of an overpayment of tax shall be filed by the taxpayer within 16 three years from the time the return was filed or two years from the 17 time the tax was paid, whichever of such periods expires the later, or 18 if no return was filed, within two years from the time the tax was paid. 19 If the claim is filed within the three year period, the amount of the 20 credit or refund shall not exceed the portion of the tax paid within the 21 three years immediately preceding the filing of the claim plus the peri- 22 od of any extension of time for filing the return. If the claim is not 23 filed within the three year period, but is filed within the two year 24 period, the amount of the credit or refund shall not exceed the portion 25 of the tax paid during the two years immediately preceding the filing of 26 the claim. Except as otherwise provided in this section, if no claim is 27 filed, the amount of a credit or refund shall not exceed the amount 28 which would be allowable if a claim had been filed on the date the cred- 29 it or refund is allowed. 30 (b) Extension of time by agreement. If an agreement under the 31 provisions of paragraph two of subdivision (c) of section 11-523 of this 32 chapter, extending the period for assessment of income tax, is made 33 within the period prescribed in subdivision (a) of this section for the 34 filing of a claim for credit or refund the period for filing a claim for 35 credit or refund, or for making credit or refund if no claims filed, 36 shall not expire prior to six months after the expiration of the period 37 within which an assessment may be made pursuant to the agreement or any 38 extension thereof. The amount of such credit or refund shall not exceed 39 the portion of the tax paid after the execution of the agreement and 40 before the filing of the claim or the making of the credit or refund, as 41 the case may be, plus the portion of the tax paid within the period 42 which would be applicable under subdivision (a) of this section if a 43 claim had been filed on the date the agreement was executed. 44 (c) Notice of change or correction of federal or New York state taxa- 45 ble income. If a taxpayer is required by section 11-519 of this chapter 46 to report a change or correction in federal or New York state taxable 47 income reported on the taxpayer's federal or New York state income tax 48 return, or to report a change or correction which is treated in the same 49 manner as if it were an overpayment for federal or New York state income 50 tax purposes, or to file an amended return with the commissioner of 51 finance, claim for credit or refund of any resulting overpayment of tax 52 shall be filed by the taxpayer within two years from the time the notice 53 of such change or correction or such amended return was required to be 54 filed with the commissioner of finance. If the report or amended return 55 required by section 11-519 of this chapter is not filed within the nine- 56 ty day period therein specified, no interest shall be payable on anyS. 8474 415 1 claim for credit or refund of the overpayment attributable to the feder- 2 al or New York state change or correction. The amount of such credit or 3 refund shall not exceed the amount of the reduction in tax attributable 4 to such federal or New York state change, correction or items amended on 5 the taxpayer's amended federal or New York state income tax return. This 6 subdivision shall not affect the time within which or the amount for 7 which a claim for credit or refund may be filed apart from this subdivi- 8 sion. 9 (d) Overpayment attributable to net operating loss carryback. A claim 10 for credit or refund of so much of an overpayment as is attributable to 11 the application to the taxpayer of a net operating loss carryback shall 12 be filed within three years from the time the return was due for the 13 taxable year of the loss, or within the period prescribed in subdivision 14 (b) of this section in respect of such taxable year, or within the peri- 15 od prescribed in subdivision (c) of this section, where applicable in 16 respect of the taxable year to which the net operating loss is carried 17 back, whichever expires the latest. 18 (e) Failure to file claim within prescribed period. No credit or 19 refund shall be allowed or made, except as provided in subdivision (f) 20 of this section or subdivision (d) of section 11-530 of this chapter 21 after the expiration of the applicable period of limitation specified in 22 this chapter unless a claim for credit or refund is filed by the taxpay- 23 er within such period. Any later credit shall be void and any later 24 refund erroneous. No period of limitations specified in any other law 25 shall apply to the recovery by a taxpayer of moneys paid in respect of 26 taxes under this chapter. 27 (f) Effect of petition to tax appeals tribunal. If a notice of defi- 28 ciency for a taxable year has been mailed to the taxpayer under section 29 11-521 of this chapter and if the taxpayer files a timely petition with 30 the tax appeals tribunal under section 11-529 of this chapter, the tax 31 appeals tribunal may determine that the taxpayer has made an overpayment 32 for such year, whether or not it also determines a deficiency for such 33 year. No separate claim for credit or refund for such year shall be 34 filed, and no credit or refund for such year shall be allowed or made, 35 except: 36 (1) as to overpayments determined by a decision of the tax appeals 37 tribunal which has become final; 38 (2) as to any amount collected in excess of an amount computed in 39 accordance with the decision of the tax appeals tribunal which has 40 become final; 41 (3) as to any amount collected after the period of limitation upon the 42 making of levy for collection has expired; and 43 (4) as to any amount claimed as a result of a change or correction 44 described in subdivision (c) of this section. 45 (g) Limit on amount of credit or refund. The amount of overpayment 46 determined under subdivision (f) of this section shall, when the deci- 47 sion of the tax appeals tribunal has become final, be credited or 48 refunded in accordance with subdivision (a) of section 11-526 of this 49 chapter and shall not exceed the amount of tax which the tax appeals 50 tribunal determines as part of its decision was paid: 51 (1) after the mailing of the notice of deficiency, or 52 (2) within the period which would be applicable under subdivision (a), 53 (b) or (c) of this section, if on the date of the mailing of the notice 54 of deficiency a claim has been filed, whether or not filed, stating the 55 grounds upon which the tax appeals tribunal finds that there is an over- 56 payment.S. 8474 416 1 (h) Early return. For purposes of this section, any return filed 2 before the last day prescribed for the filing thereof shall be consid- 3 ered as filed on such last day, determined without regard to any exten- 4 sion of time granted the taxpayer. 5 (i) Prepaid tax. For purposes of this section, any tax paid by the 6 taxpayer before the last day prescribed for its payment and any amount 7 paid by the taxpayer as estimated tax for a taxable year shall be deemed 8 to have been paid by the taxpayer on the fifteenth day of the fourth 9 month following the close of his or her taxable year with respect to 10 which such amount constitutes a credit or payment, except that for taxa- 11 ble years beginning on or after January first, two thousand sixteen, in 12 the case of a taxpayer classified as a partnership for federal income 13 tax purposes, such amount shall be deemed to have been paid on the 14 fifteenth day of the third month following the close of his or her taxa- 15 ble year with respect to which such amount constitutes a credit or 16 payment. 17 (j) Cross reference. For provision barring refund of overpayment cred- 18 ited against tax of a succeeding year, see subdivision (d) of section 19 11-526 of this chapter. 20 (k) Notice of change or correction of sales and compensating use tax 21 liability. If a taxpayer is required by section 11-519.1 of this chapter 22 to file a report or amended return or report in respect of a change or 23 correction of his or her sales and compensating use tax liability, claim 24 for credit or refund of any resulting overpayment of tax shall be filed 25 by the taxpayer within two years from the time such report or amended 26 return or report was required to be filed with the commissioner of 27 finance. The amount of such credit or refund shall be computed without 28 change of the allocation of income upon which the taxpayer's return, or 29 any additional assessment, was based, and shall not exceed the amount of 30 the reduction in tax attributable to such change or correction of sales 31 and compensating use tax liability. 32 This subdivision shall not affect the time within which or the amount 33 for which a claim for credit or refund may be filed apart from this 34 subdivision. 35 § 11-528 Interest on overpayment. (a) General. Notwithstanding the 36 provisions of section three-a of the general municipal law, interest 37 shall be allowed and paid as follows at the overpayment rate set by the 38 commissioner of finance pursuant to section 11-537 of this chapter, or, 39 if no rate is set, at the rate of six percent per annum upon any over- 40 payment in respect of the tax imposed by this chapter: 41 (1) from the date of the overpayment to the due date of an amount 42 against which a credit is taken; or 43 (2) from the date of the overpayment to a date, to be determined by 44 the commissioner of finance, preceding the date of a refund check by not 45 more than thirty days, whether or not such refund check is accepted by 46 the taxpayer after tender of such check to the taxpayer. The acceptance 47 of such check shall be without prejudice to any right of the taxpayer to 48 claim any additional overpayment and interest thereon. 49 (3) Late and amended returns and claims for credit or refund. 50 Notwithstanding paragraph one or two of this subdivision, in the case of 51 an overpayment claimed on a return of tax which is filed after the last 52 date prescribed for filing such return, determined with regard to exten- 53 sions, or claimed on an amended return of tax or claimed on a claim, for 54 credit or refund, no interest shall be allowed or paid for any day 55 before the date on which such return or claim is filed.S. 8474 417 1 (4) Interest on certain refunds. To the extent provided for in regu- 2 lations promulgated by the commissioner of finance, if an item of 3 income, gain, loss, deduction or credit is changed from the taxable year 4 or period in which it is reported to the taxable year or period in which 5 it belongs and the change results in an underpayment in a taxable year 6 or period and an overpayment in some other taxable year or period, the 7 provisions of paragraph three of this subdivision with respect to an 8 overpayment shall not be applicable to the extent that the limitation in 9 such paragraph on the right to interest would result in a taxpayer not 10 being allowed interest for a length of time with respect to an overpay- 11 ment while being required to pay interest on an equivalent amount of the 12 related underpayment. However, this paragraph shall not be construed as 13 limiting or mitigating the effect of any statute of limitations or any 14 other provisions of law relating to the authority of such commissioner 15 to issue a notice of deficiency or to allow a credit or refund of an 16 overpayment. 17 (5) Amounts of less than one dollar. No interest shall be allowed or 18 paid if the amount thereof is less than one dollar. 19 (b) Advance payment of tax and payment of estimated tax. The 20 provisions of subdivisions (h) and (i) of section 11-527 of this chapter 21 applicable in determining the date of payment of tax for purposes of 22 determining the period of limitations on credit or refund, shall be 23 applicable in determining the date of payment for purposes of this 24 section. 25 (c) Refund within three months of claim for overpayment. If any over- 26 payment of tax imposed by this chapter is credited or refunded within 27 three months after the last date prescribed, or permitted by extension 28 of time, for filing the return of such tax on which such overpayment was 29 claimed or within three months after such return was filed, whichever is 30 later, or within three months after an amended return was filed claiming 31 such overpayment or within three months after a claim for credit or 32 refund was filed on which such overpayment was claimed, no interest 33 shall be allowed under this section on any such overpayment. For 34 purposes of this subdivision, any amended return or claim for credit or 35 refund filed before the last day prescribed, or permitted by extension 36 of time, for the filing of the return of tax for such year shall be 37 considered as filed on such last day. 38 (d) Refund of tax caused by carryback. For purposes of this section, 39 if any overpayment of tax imposed by this chapter results from a carry- 40 back of a net operating loss, such overpayment shall be deemed not to 41 have been made prior to the filing date for the taxable year in which 42 such net operating loss arises. Such filing date shall be determined 43 without regard to extensions of time to file. For purposes of subdivi- 44 sion (c) of this section any overpayment described herein shall be 45 treated as an overpayment for the loss year and such subdivision shall 46 be applied with respect to such overpayment by treating the return for 47 the loss year as not filed before claim for such overpayment is filed. 48 The term "loss year" means the taxable year in which such loss arises. 49 (e) No interest until return in processible form. (1) For purposes of 50 subdivisions (a) and (c) of this section, a return shall not be treated 51 as filed until it is filed in processible form. 52 (2) For purposes of paragraph one of this subdivision, a return is in 53 a processible form if: 54 (A) such return is filed on a permitted form, and 55 (B) such return contains:S. 8474 418 1 (i) the taxpayer's name, address, and identifying number and the 2 required signatures, and 3 (ii) sufficient required information, whether on the return or on 4 required attachments, to permit the mathematical verification of tax 5 liability shown on the return. 6 (f) Cross-reference. For provision with respect to interest after 7 failure to file notice of federal or New York state change under section 8 11-519 of this chapter, see subdivision (c) of section 11-527 of this 9 chapter. 10 § 11-529 Petition to tax appeals tribunal. (a) General. The form of a 11 petition to the tax appeals tribunal, and further proceedings before the 12 tax appeals tribunal in any case initiated by the filing of a petition, 13 shall be governed by such rules as the tax appeals tribunal shall 14 prescribe. No petition shall be denied in whole or in part without 15 opportunity for a hearing on reasonable prior notice. Such hearing and 16 any appeal to the tribunal sitting en banc from the decision rendered in 17 such hearing shall be conducted in the manner and subject to the 18 requirements prescribed by the tax appeals tribunal pursuant to sections 19 one hundred sixty-eight through one hundred seventy-two of the charter 20 of the preceding municipality as it existed January first, nineteen 21 hundred ninety-four. A decision of the tax appeals tribunal shall be 22 rendered, and notice thereof shall be given, in the manner provided by 23 section one hundred seventy-one of the charter of the preceding munici- 24 pality. 25 (b) Petition for redetermination of a deficiency. Within ninety days, 26 or one hundred fifty days if the notice is addressed to a person outside 27 of the United States, after the mailing of the notice of deficiency 28 authorized by section 11-521 of this chapter, or if the commissioner of 29 finance has established a conciliation procedure pursuant to section 30 11-124 of this title and the taxpayer has requested a conciliation 31 conference in accordance therewith, within ninety days from the mailing 32 of the conciliation decision or the date of the commissioner's confirma- 33 tion of the discontinuance of the conciliation proceeding, the taxpayer 34 may file a petition with the tax appeals tribunal for a redetermination 35 of the deficiency. Such petition may also assert a claim for refund for 36 the same taxable year or years, subject to the limitations of subdivi- 37 sion (g) of section 11-527 of this chapter. 38 (c) Petition for refund. A taxpayer may file a petition with the tax 39 appeals tribunal for the amounts asserted in a claim for refund if: 40 (1) the taxpayer has filed a timely claim for refund with the commis- 41 sioner of finance, 42 (2) the taxpayer has not previously filed with the tax appeals tribu- 43 nal a timely petition under subdivision (b) of this section for the same 44 taxable year unless the petition under this subdivision relates to a 45 separate claim for credit or refund properly filed under subdivision (f) 46 of section 11-527 of this chapter, and 47 (3) either: (A) six months have expired since the claim was filed, or 48 (B) the commissioner of finance has mailed to the taxpayer, by regis- 49 tered or certified mail, a notice of disallowance of such claim in whole 50 or in part. No petition under this subdivision shall be filed more than 51 two years after the date of mailing of a notice of disallowance, unless 52 prior to the expiration of such two year period it has been extended by 53 written agreement between the taxpayer and the commissioner of finance. 54 If a taxpayer files a written waiver of the requirement that he or she 55 be mailed a notice of disallowance, the two year period prescribed byS. 8474 419 1 this subdivision for filing a petition for refund shall begin on the 2 date such waiver is filed. 3 (4) If the commissioner of finance has established a conciliation 4 procedure pursuant to section 11-124 of this title, a taxpayer who is 5 eligible to file a petition for refund with the tax appeals tribunal 6 pursuant to this subdivision may request a conciliation conference prior 7 to filing such petition, provided the request is made within the time 8 prescribed for filing the petition. Notwithstanding anything in this 9 subdivision to the contrary, if the taxpayer has requested a concil- 10 iation conference in accordance with the procedure established pursuant 11 to section 11-124 of this title, a petition for refund may be filed no 12 later than ninety days from the mailing of the conciliation decision or 13 the date of the commissioner's confirmation of the discontinuance of the 14 conciliation proceeding. 15 (d) Assertion of deficiency after filing petition. (1) Petition for 16 redetermination of deficiency. If a taxpayer files with the tax appeals 17 tribunal a petition for redetermination of a deficiency, the tax appeals 18 tribunal shall have power to determine a greater deficiency than 19 asserted in the notice of deficiency and to determine if there should be 20 assessed any addition to tax or penalty provided in section 11-525 of 21 this chapter, if claim therefor is asserted at or before the hearing 22 under the rules of the tax appeals tribunal. 23 (2) Petition for refund. If the taxpayer files with the tax appeals 24 tribunal a petition for credit or refund for a taxable year, the tax 25 appeals tribunal may: 26 (A) determine a deficiency for such year as to any amount of deficien- 27 cy asserted at or before the hearing under rules of the tax appeals 28 tribunal, and within the period in which an assessment would be timely 29 under section 11-523 of this chapter, or 30 (B) deny so much of the amount for which credit or refund is sought in 31 the petition, as is offset by other issues pertaining to the same taxa- 32 ble year which are asserted at or before the hearing under rules of the 33 tax appeals tribunal. 34 (3) Opportunity to respond. A taxpayer shall be given a reasonable 35 opportunity to respond to any matters asserted by the commissioner of 36 finance under this subdivision. 37 (4) Restriction on further notices of deficiency. If the taxpayer 38 files a petition with the tax appeals tribunal under this section, no 39 notice of deficiency under section 11-521 of this chapter may thereafter 40 be issued by the commissioner of finance for the same taxable year, 41 except in case of fraud or with respect to a change or correction in 42 federal or New York state taxable income required to be reported under 43 section 11-519 of this chapter or with respect to a state change or 44 correction of sales and compensating use tax liability to be reported 45 under section 11-519.1 of this chapter. 46 (e) Burden of proof. In any case before the tax appeals tribunal under 47 this chapter, the burden of proof shall be upon the petitioner except 48 for the following issues, as to which the burden of proof shall be upon 49 the commissioner of finance: 50 (1) whether the petitioner has been guilty of fraud with intent to 51 evade tax; 52 (2) whether the petitioner is liable as the transferee of property of 53 a taxpayer, but not to show that the taxpayer was liable for the tax; 54 (3) whether the petitioner is liable for any increase in a deficiency 55 where such increase is asserted initially after a notice of deficiency 56 was mailed and a petition under this section filed, unless such increaseS. 8474 420 1 in deficiency is the result of a change or correction of federal or New 2 York state taxable income required to be reported under section 11-519 3 of this chapter, and of which change or correction the commissioner of 4 finance had no notice at the time he or she mailed the notice of defi- 5 ciency or unless such increase in deficiency is the result of a change 6 or correction of sales and compensating use tax liability required to be 7 reported under section 11-519.1 of this title, and of which change or 8 correction the commissioner of finance had no notice at the time he or 9 she mailed the notice of deficiency; and 10 (4) whether any person is liable for a penalty under subdivision (k) 11 of section 11-525 of this chapter. 12 (f) Evidence of related federal or state determination. Evidence of a 13 federal or state determination relating to issues raised in a case 14 before the tax appeals tribunal under this section shall be admissible, 15 under rules established by the tax appeals tribunal. 16 (g) Jurisdiction over other years. The tax appeals tribunal shall 17 consider such facts with relation to the taxes for other years as may be 18 necessary correctly to determine the tax for the taxable year, but in so 19 doing shall have no jurisdiction to determine whether or not the tax for 20 any other year has been overpaid or underpaid. 21 § 11-530 Review of tax appeals tribunal's decision. (a) General. A 22 decision of the tax appeals tribunal sitting en banc shall be subject to 23 judicial review at the instance of any taxpayer affected thereby in the 24 manner provided by law for the review of a final decision or action of 25 administrative agencies of the city. An application by a taxpayer for 26 such review must be made within four months after notice of the decision 27 is sent by certified mail, return receipt requested, to the taxpayer and 28 the commissioner of finance. 29 (b) Judicial review exclusive remedy. The review of a decision of the 30 tax appeals tribunal provided by this section shall be the exclusive 31 remedy available to any taxpayer for the judicial determination of the 32 liability of the taxpayer for the taxes imposed by this chapter. 33 (c) Assessment pending review; review bond. Irrespective of any 34 restrictions on the assessment and collection of deficiencies, the 35 commissioner of finance may assess a deficiency determined by the tax 36 appeals tribunal in a decision rendered pursuant to section one hundred 37 seventy-one of the charter of the preceding municipality as it existed 38 January first, nineteen hundred ninety-four after the expiration of the 39 period specified in subdivision (a) of this section, notwithstanding 40 that an application for judicial review in respect of such deficiency 41 has been duly made by the taxpayer, unless the taxpayer, at or before 42 the time his or her application for review is made, has paid the defi- 43 ciency, has deposited with the commissioner of finance the amount of the 44 deficiency, or has filed with the commissioner of finance a bond, which 45 may be a jeopardy bond under subdivision (h) of section 11-534 of this 46 chapter, in the amount of the portion of the deficiency, including 47 interest and other amounts, in respect of which the application for 48 review is made and all costs and charges which may accrue against such 49 taxpayer in the prosecution of the proceeding, including costs of all 50 appeals, and with surety approved by a justice of the supreme court of 51 the state of New York, conditioned upon the payment of the deficiency, 52 including interests and other amounts, as finally determined and such 53 costs and charges. If, as a result of a waiver of the restrictions on 54 the assessment and collection of a deficiency, any part of the amount 55 determined by the tax appeals tribunal is paid after the filing of theS. 8474 421 1 review bond, such bond shall, at the request of the taxpayer, be propor- 2 tionately reduced. 3 (d) Credit, refund or abatement after review. If the amount of a defi- 4 ciency determined by the tax appeals tribunal is disallowed in whole or 5 in part by the court of review, the amount so disallowed shall be cred- 6 ited, or refunded to the taxpayer, without the making of claim therefor, 7 or, if payment has not been made, shall be abated. 8 (e) Date of finality of tax appeals tribunal's decision. A decision of 9 the tax appeals tribunal shall become final upon the expiration of the 10 period specified in subdivision (a) of this section for making an appli- 11 cation for review, if no such application has been duly made within such 12 time, or if such application has been duly made, upon expiration of the 13 time for all further judicial review, or upon the rendering by the tax 14 appeals tribunal of a decision in accordance with the mandate of the 15 court on review. Notwithstanding the provisions of this subdivision, 16 for the purpose of making an application for review, the decision of the 17 tax appeals tribunal shall be deemed final on the date the notice of 18 decision is sent by certified mail to the taxpayer and the commissioner 19 of finance. 20 § 11-531 Mailing rules; holidays; miscellaneous. (a) Timely mailing. 21 (1) If any return, declaration of estimated tax, claim, statement, 22 notice, petition, or other document required to be filed, or any payment 23 required to be made, within a prescribed period or on or before a 24 prescribed date under authority of any provision of this chapter is, 25 after such period or such date, delivered by the United States mail to 26 the commissioner of finance, tax appeals tribunal, bureau, office, offi- 27 cer or person with which or with whom such document is required to be 28 filed, or to which or to whom such payment is required to be made, the 29 date of the United States postmark stamped on the envelope shall be 30 deemed to be the date of delivery. This subdivision shall apply only if 31 the postmark date falls within the prescribed period or on or before the 32 prescribed date for the filing of such document, or for making the 33 payment, including any extension granted for such filing or payment, and 34 only if such document or payment was deposited in the mail, postage 35 prepaid, properly addressed to the commissioner of finance, tax appeals 36 tribunal, bureau, office, officer or person with which or with whom the 37 document is required to be filed or to which or to whom such payment is 38 required to be made. If any document is sent by United States registered 39 mail, such registration shall be prima facie evidence that such document 40 was delivered to the commissioner of finance, tax appeals tribunal, 41 bureau, office, officer or person to which or to whom addressed. To the 42 extent that the commissioner of finance or, where relevant, the tax 43 appeals tribunal shall prescribe by regulation, certified mail may be 44 used in lieu of registered mail under this section. Except as provided 45 in paragraph two of this subdivision, this subdivision shall apply in 46 the case of postmarks not made by the United States postal service only 47 if and to the extent provided by regulations of the commissioner of 48 finance or, where relevant, the tax appeals tribunal. 49 (2) (A) Any reference in paragraph one of this subdivision to the 50 United States mail shall be treated as including a reference to any 51 delivery service designated by the secretary of the treasury of the 52 United States pursuant to section seventy-five hundred two of the inter- 53 nal revenue code and any reference in paragraph one of this subdivision 54 to a United States postmark shall be treated as including a reference to 55 any date recorded or marked in the manner described in section seventy- 56 five hundred two of the internal revenue code by a designated deliveryS. 8474 422 1 service. If the commissioner of finance finds that any delivery service 2 designated by such secretary is inadequate for the needs of the city, 3 the commissioner may withdraw such designation for purposes of this 4 title. The commissioner may also designate additional delivery services 5 meeting the criteria of section seventy-five hundred two of the internal 6 revenue code for purposes of this title, or may withdraw any such desig- 7 nation if the commissioner of finance finds that a delivery service so 8 designated is inadequate for the needs of the city. Any reference in 9 paragraph one of this subdivision to the United States mail shall be 10 treated as including a reference to any delivery service designated by 11 the commissioner of finance and any reference in paragraph one of this 12 subdivision to a United States postmark shall be treated as including a 13 reference to any date recorded or marked in the manner described in 14 section seventy-five hundred two of the internal revenue code by a 15 delivery service designated by the commissioner of finance. Notwith- 16 standing the provisions of this paragraph, any withdrawal of designation 17 or additional designation by the commissioner of finance shall not be 18 effective for purposes of service upon the tax appeals tribunal, unless 19 and until such withdrawal of designation or additional designation is 20 ratified by the president of the tax appeals tribunal. 21 (B) Any equivalent of registered or certified mail designated by the 22 United States secretary of the treasury, or as may be designated by the 23 commissioner of finance pursuant to the same criteria used by such 24 secretary for such designations pursuant to section seventy-five hundred 25 two of the internal revenue code, shall be included within the meaning 26 of registered or certified mail as used in paragraph one of this subdi- 27 vision. If the commissioner of finance finds that any equivalent of 28 registered or certified mail designated by such secretary or the commis- 29 sioner of finance is inadequate for the needs of the city, the commis- 30 sioner of finance may withdraw such designation for purposes of this 31 title. Notwithstanding the provisions of this paragraph, any withdrawal 32 of designation or additional designation by the commissioner of finance 33 shall not be effective for purposes of service upon the tax appeals 34 tribunal, unless and until such withdrawal of designation or additional 35 designation is ratified by the president of the tax appeals tribunal. 36 (b) Last known address. For purposes of this chapter, a taxpayer's 37 last known address shall be given in the last return filed by the 38 taxpayer, unless subsequently to the filing of such return the taxpayer 39 shall have notified the commissioner of finance of a change of address. 40 (c) Last day a Saturday, Sunday or legal holiday. When the last day 41 prescribed under authority of this chapter, including any extension of 42 time, for performing any act falls on Saturday, Sunday, or a legal holi- 43 day in the state of New York, the performance of such act shall be 44 considered timely if it is performed on the next succeeding day which is 45 not a Saturday, Sunday or legal holiday. 46 (d) Certificate: unfiled return. For purposes of this chapter and 47 sections one hundred sixty-eight through one hundred seventy-two of the 48 charter of the preceding municipality, the certificate of the commis- 49 sioner of finance to the effect that a tax has not been paid, that a 50 return or declaration of estimated tax has not been filed, or that 51 information has not been supplied, as required by or under the 52 provisions of this title, shall be prima facie evidence that such tax 53 has not been paid, that such return or declaration has not been filed, 54 or that such information has not been supplied. 55 § 11-532 Collection, levy and liens. (a) Collection procedures. The 56 taxes imposed by this chapter shall be collected by the commissioner ofS. 8474 423 1 finance, and the commissioner may establish the mode or time for the 2 collection of any amount due it under this chapter if not otherwise 3 specified. The commissioner of finance shall, upon request, give a 4 receipt for any sum collected under this chapter. The commissioner of 5 finance may authorize banks or trust companies which are depositories or 6 financial agents of the city to receive and give a receipt for any tax 7 imposed under this chapter in such manner, at such times, and under such 8 conditions as the commissioner of finance may prescribe; and the commis- 9 sioner of finance shall prescribe the manner, times and conditions under 10 which the receipt of such tax by such banks and trust companies is to be 11 treated as payment of such tax to the commissioner of finance. 12 (b) Notice and demand for tax. The commissioner of finance shall as 13 soon as practicable give notice to each person liable for any amount of 14 tax, addition to tax, penalty or interest, which has been assessed but 15 remains unpaid, stating the amount and demanding payment thereof. Such 16 notice shall be left at the dwelling or usual place of business of such 17 person or shall be sent by mail to such person's last known address. 18 Except where the commissioner of finance determines that collection 19 would be jeopardized by delay, if any tax is assessed prior to the last 20 date, including any date fixed by extension, prescribed for payment of 21 such tax, payment of such tax shall not be demanded until after such 22 date. 23 (c) Issuance of warrant after notice and demand. If any person liable 24 under this chapter for the payment of any tax, addition to tax, penalty 25 or interest neglects or refuses to pay the same within the ten days 26 after notice and demand herefor is given to such person under subdivi- 27 sion (b) of this section, the commissioner of finance may within six 28 years after the date of such assessment issue a warrant directed to the 29 sheriff of any county of the state, or to any officer or employee of the 30 department of finance, commanding such person to levy upon and sell such 31 person's real and personal property for the payment of the amount 32 assessed, with the cost of executing the warrant, and to return such 33 warrant to the commissioner of finance and pay to the commissioner the 34 money collected by virtue thereof within sixty days after the receipt of 35 the warrant. If the commissioner of finance finds that the collection 36 of the tax or other amount is in jeopardy, notice and demand for immedi- 37 ate payment of such tax may be made by the commissioner of finance and 38 upon failure or refusal to pay such tax or other amount the commissioner 39 of finance may issue a warrant without regard to the ten-day period 40 provided in this subdivision. 41 (d) Copy of warrant to be filed and lien to be created. Any sheriff 42 or officer or employee who receives a warrant under subdivision (c) of 43 this section shall within five days thereafter file a copy with the 44 clerk of the appropriate county. The clerk shall thereupon enter in the 45 judgment docket, in the column for judgment debtors, the name of the 46 taxpayer mentioned in the warrant, and in appropriate columns the tax or 47 other amounts for which the warrant is issued and the date when such 48 copy is filed; and such amount shall thereupon be a binding lien upon 49 the real, personal and other property of the taxpayer. 50 (e) Judgment. When a warrant has been filed with the county clerk the 51 commissioner of finance shall, on behalf of the city, be deemed to have 52 obtained judgment against the taxpayer for the tax or other amounts. 53 (f) Execution. The sheriff or officer or employee shall thereupon 54 proceed upon the judgment in all respects, with like effect, and in the 55 same manner prescribed by law in respect to executions issued against 56 property upon judgments of a court of record, and a sheriff shall beS. 8474 424 1 entitled to the same fees for the sheriff's services in executing the 2 warrant, to be collected in the same manner. An officer or employee of 3 the department of finance may proceed in any county or counties of this 4 state and shall have all the powers of execution conferred by law upon 5 sheriffs, but shall be entitled to no fee or compensation in excess of 6 actual expenses paid in connection with the execution of the warrant. 7 (g) Taxpayer not a resident of this state. Where a notice and demand 8 under subdivision (b) of this section shall have been given to a taxpay- 9 er who is not then a resident of this state, and it appears to the 10 commissioner of finance that it is not practicable to find in this state 11 property of the taxpayer sufficient to pay the entire balance of tax or 12 other amount owing by such taxpayer who is not then a resident of this 13 state, the commissioner of finance may, in accordance with subdivision 14 (c) of this section, issue a warrant directed to an officer or employee 15 of the department of finance, a copy of which warrant shall be mailed by 16 certified or registered mail to the taxpayer at the taxpayer's last 17 known address, subject to the rules for mailing provided in subdivision 18 (a) of section 11-521 of this chapter. Such warrant shall command the 19 officer or employee to proceed in Richmond county, and such officer or 20 employee shall, within five days after receipt of the warrant, file the 21 warrant and obtain a judgment in accordance with this section. Thereup- 22 on the commissioner of finance may authorize the institution of any 23 action or proceeding to collect or enforce the judgment in any place and 24 by any procedure that a civil judgment of the supreme court of the state 25 of New York could be collected or enforced. The commissioner of finance 26 may also, in the commissioner's discretion, designate agents or retain 27 counsel for the purpose of collecting, outside the state of New York, 28 any unpaid taxes, additions to tax, penalties or interest which have 29 been assessed under this chapter against taxpayers who are not residents 30 of this state, may fix the compensation of such agents and counsel to be 31 paid out of money appropriated or otherwise lawfully available for 32 payment thereof, and may require of them bonds or other security for the 33 faithful performance of their duties, in such form and in such amount as 34 the commissioner of finance shall deem proper and sufficient. 35 (h) Action by city for recovery of taxes. Action may be brought by 36 the corporation counsel of the city at the instance of the commissioner 37 of finance as agent and trustee for the city to recover the amount of 38 any unpaid taxes, additions to tax, penalties or interest which have 39 been assessed under this chapter within six years prior to the date the 40 action is commenced. 41 (i) Release of lien or vacating warrant. The commissioner of finance, 42 if he or she finds that the interests of the city will not thereby be 43 jeopardized, and upon such conditions as the commissioner may require, 44 may release any property from the lien of any warrant or vacate such 45 warrant for unpaid taxes, additions to tax, penalties and interest filed 46 pursuant to subdivision (d) or (g) of this section, and such release or 47 vacating of the warrant may be recorded in the office of any recording 48 officer in which such warrant has been filed. The clerk shall thereupon 49 cancel and discharge as of the original date of docketing the vacated 50 warrant. 51 § 11-533 Transferees. (a) General. The liability, at law or in equity, 52 of a transferee of property of a taxpayer for any tax, additions to tax, 53 penalty or interest due the commissioner of finance under this chapter, 54 shall be assessed, paid, and collected in the same manner and subject to 55 the same provisions and limitations as in the case of the tax to which 56 the liability relates, except that the period of limitations for assess-S. 8474 425 1 ment against the transferee shall be extended by one year for each 2 successive transfer, in order, from the original taxpayer to the trans- 3 feree involved, but not by more than three years in the aggregate. The 4 term "transferee" includes donee, heir, legatee, devisee and distribu- 5 tee. 6 (b) Exceptions. (1) If before the expiration of the period of limi- 7 tations for assessment of liability of the transferee, a claim has been 8 filed by the commissioner of finance in any court against the original 9 taxpayer or the last preceding transferee based upon the liability of 10 the original taxpayer, then the period of limitation for assessment of 11 liability of the transferee shall in no event expire prior to one year 12 after such claim has been finally allowed, disallowed or otherwise 13 disposed of. 14 (2) If, before the expiration of the time prescribed in subdivision 15 (a) of this section or the immediately preceding paragraph of this 16 subdivision for the assessment of the liability, the commissioner of 17 finance and the transferee have both consented in writing to its assess- 18 ment after such time, the liability may be assessed at any time prior to 19 the expiration of the period agreed upon. The period so agreed upon may 20 be extended by subsequent agreements in writing made before the expira- 21 tion of the period previously agreed upon. For the purpose of determin- 22 ing the period of limitation on credit or refund to the transferee of 23 overpayments of tax made by such transferee or overpayments of tax made 24 by the transferor as to which the transferee is legally entitled to 25 credit or refund, such agreement and any extension thereof shall be 26 deemed an agreement and extension thereof referred to in subdivision (b) 27 of section 11-527 of this chapter. If the agreement is executed after 28 the expiration of the period of limitation for assessment against the 29 original taxpayer, then in applying the limitations under subdivision 30 (b) of section 11-527 of this chapter on the amount of the credit or 31 refund, the periods specified in subdivision (a) of section 11-527 of 32 this chapter shall be increased by the period from the date of such 33 expiration to the date of agreement. 34 (c) Deceased transferor. If any person is deceased, the period of 35 limitation for assessment against such person shall be the period that 36 would be in effect if such person had lived. 37 (d) Evidence. Notwithstanding the provisions of subdivision (e) of 38 section 11-537 of this chapter the commissioner of finance shall use his 39 or her powers to make available to the transferee evidence necessary to 40 enable the transferee to determine the liability of the original taxpay- 41 er and of any preceding transferees, but without undue hardship to the 42 original taxpayer or preceding transferee. See subdivision (e) of 43 section 11-529 of this chapter for rules as to burden of proof. 44 § 11-534 Jeopardy assessment. (a) Authority for making. If the commis- 45 sioner of finance believes that the assessment or collection of a defi- 46 ciency will be jeopardized by delay, the commissioner shall, notwith- 47 standing the provision of sections 11-521 and 11-536 of this chapter, 48 and immediately assess such deficiency, together with all interest, 49 penalties and additions to tax provided for by law, and notice and 50 demand shall be made by the commissioner of finance for the payment 51 thereof. 52 (b) Notice of deficiency. If the jeopardy assessment is made before 53 any notice in respect to the tax to which the jeopardy assessment 54 relates has been mailed under section 11-521 of this chapter, then the 55 commissioner of finance shall mail a notice under such section within 56 sixty days after the making of the assessment.S. 8474 426 1 (c) Amount assessable before decision of tax appeals tribunal. The 2 jeopardy assessment may be made in respect of a deficiency greater or 3 less than that of which notice is mailed to the taxpayer and whether or 4 not the taxpayer has heretofore filed a petition with the tax appeals 5 tribunal. The commissioner of finance may, at any time before the tax 6 appeals tribunal renders its decision, abate such assessment, or any 7 unpaid portion thereof, to the extent that the commissioner believes the 8 assessment to be excessive in amount. The tax appeals tribunal may in 9 its decision redetermine the entire amount of the deficiency and of all 10 amounts assessed at the same time in connection therewith. 11 (d) Amount assessable after decision of tax appeals tribunal. If the 12 jeopardy assessment is made after the decision of the tax appeals tribu- 13 nal is rendered, such assessment may be made only in respect of the 14 deficiency determined by the tax appeals tribunal in its decision. 15 (e) Expiration of right to assess. A jeopardy assessment may not be 16 made after the decision of the tax appeals tribunal has become final or 17 after the taxpayer has made an application for review of the decision of 18 the tax appeals tribunal. 19 (f) Collection of unpaid amounts. When a petition has been filed with 20 the tax appeals tribunal and when the amount which should have been 21 assessed has been determined by a decision of the tax appeals tribunal 22 which has become final, then any unpaid portion, the collection of which 23 has been stayed by bond, shall be collected as part of the tax upon 24 notice and demand from the commissioner of finance, and any remaining 25 portion of the assessment shall be abated. If the amount already 26 collected exceeds the amount determined as the amount which should have 27 been assessed, such excess shall be credited or refunded to the taxpayer 28 as provided in section 11-526 of this chapter without the filing of 29 claim therefor. If the amount determined as the amount which should have 30 been assessed is greater than the amount actually assessed, then the 31 difference shall be assessed and shall be collected as part of the tax 32 upon notice and demand from the commissioner of finance. 33 (g) Abatement if jeopardy does not exist. The commissioner of finance 34 may abate the jeopardy assessment if the commissioner finds that jeopar- 35 dy does not exist. Such abatement may not be made after a decision of 36 the tax appeals tribunal in respect of the deficiency has been rendered 37 or, if no petition is filed with the tax appeals tribunal, after the 38 expiration of the period for filing such petition. The period of limita- 39 tion on the making of assessments and levy or a proceeding for 40 collection, in respect of any deficiency, shall be determined as if the 41 jeopardy assessment so abated had not been made, except that the running 42 of such period shall in any event be suspended for the period from the 43 date of such jeopardy assessment until the expiration of the tenth day 44 after the day on which such jeopardy assessment is abated. 45 (h) Bond to stay collection. The collection of the whole or any amount 46 of any jeopardy assessment may be stayed by filing with the commissioner 47 of finance, within such time as may be fixed by regulation, a bond in an 48 amount equal to the amount as to which the stay is desired, conditioned 49 upon the payment of the amount, together with interest thereon, the 50 collection of which is stayed at the time at which, but for the making 51 of the jeopardy assessment, such amount would be due. Upon the filing of 52 the bond the collection of so much of the amount assessed as is covered 53 by the bond shall be stayed. The taxpayer shall have the right to waive 54 such stay at any time in respect of the whole or any part of the amount 55 covered by the bond, and if as a result of such waiver any part of the 56 amount covered by the bond is paid, then the bond shall at the requestS. 8474 427 1 of the taxpayer, be proportionately reduced. If any portion of the 2 jeopardy assessment is abated, or if a notice or deficiency under 3 section 11-521 of this chapter is mailed to the taxpayer in a lesser 4 amount, the bond shall, at the request of the taxpayer, be proportion- 5 ately reduced. 6 (i) Petition to tax appeals tribunal. If the bond is given before the 7 taxpayer has filed his or her petition under section 11-529 of this 8 chapter, the bond shall contain a further condition that if a petition 9 is not filed within the period provided in such section, then the amount 10 the collection of which is stayed by the bond, will be paid on notice 11 and demand at any time after the expiration of such period, together 12 with interest thereon from the date of the jeopardy notice and demand to 13 the date of notice and demand under this subdivision. The bond shall be 14 conditioned upon the payment of so much of such assessment, collection 15 of which is stayed by the bond, as is not abated by a decision of the 16 tax appeals tribunal which has become final. If the tax appeals tribunal 17 determines that the amount assessed is greater than the amount which 18 should have been assessed, then the bond shall, at the request of the 19 taxpayer, be proportionately reduced when the decision of the tax 20 appeals tribunal is rendered. 21 (j) Stay of sale of seized property pending tax appeals tribunal deci- 22 sion. Where a jeopardy assessment is made, the property seized for the 23 collection of the tax shall not be sold: 24 (1) if subdivision (b) of this section is applicable, prior to the 25 issuance of the notice of deficiency and the expiration of the time 26 provided in section 11-529 of this chapter for filing a petition with 27 the tax appeals tribunal, and 28 (2) if a petition is filed with the tax appeals tribunal, whether 29 before or after the making of such jeopardy assessment, prior to the 30 expiration of the period during which the assessment of the deficiency 31 would be prohibited if subdivision (a) of this section were not applica- 32 ble. 33 Such property may be sold if the taxpayer consents to the sale, or if 34 the commissioner of finance determines that the expenses of conservation 35 and maintenance will greatly reduce the net proceeds, or if the property 36 is perishable. 37 (k) Interest. For the purpose of subdivision (a) of section 11-524 of 38 this chapter, the last date prescribed for payment shall be determined 39 without regard to any notice and demand for payment issued under this 40 section prior to the last date otherwise prescribed for such payment. 41 (l) Early termination of taxable year. If the commissioner of finance 42 finds that a taxpayer designs quickly to depart from this state or to 43 remove his or her property therefrom, or to conceal himself or herself 44 or his or her property therein, or to do any other act tending to preju- 45 dice or to render wholly or partly ineffectual proceedings to collect 46 the income tax for the current or the preceding taxable year unless such 47 proceedings be brought without delay, the commissioner of finance shall 48 declare the taxable period for such taxpayer immediately terminated, and 49 shall cause notice of such finding and declaration to be given to the 50 taxpayer, together with a demand for immediate payment of the tax for 51 the taxable period so declared terminated and of the tax for the preced- 52 ing taxable year or so much of such tax as is unpaid, whether or not the 53 time otherwise allowed by law for filing return and paying the tax has 54 expired; and such taxes shall thereupon become immediately due and paya- 55 ble. In any proceeding brought to enforce payment of taxes made due and 56 payable by virtue of the provisions of this subdivision, the finding ofS. 8474 428 1 the commissioner of finance, whether made after notice to the taxpayer 2 or not, shall be for all purposes presumptive evidence of jeopardy. 3 (m) Reopening of taxable period. Notwithstanding the termination of 4 the taxable period of the taxpayer by the commissioner of finance as 5 provided in subdivision (l) of this section, the commissioner of finance 6 may reopen such taxable period each time the taxpayer is found by the 7 commissioner of finance to have received income, within the current 8 taxable year, since the termination of such period. A taxable period so 9 terminated by the commissioner of finance may be reopened by the taxpay- 10 er if the taxpayer files with the commissioner of finance a true and 11 accurate return of taxable income and credits allowed under this chapter 12 for taxable period, together with such other information as the commis- 13 sioner of finance may by regulations prescribe. 14 (n) Furnishing of bond where taxable year is closed by the commission- 15 er of finance. Payment of taxes shall not be enforced by any proceedings 16 under the provisions of subdivision (l) of this section prior to the 17 expiration of the time otherwise allowed for paying such taxes if the 18 taxpayer furnishes, under regulations prescribed by the commissioner of 19 finance, a bond to insure the timely making of returns with respect to, 20 and payment of, such taxes or any taxes under this chapter for prior 21 years. 22 § 11-535 Criminal penalties; cross-reference. For criminal penalties, 23 see chapter forty of this title. 24 § 11-536 Armed forces relief provisions. (a) Time to be disregarded. 25 In the case of an individual serving in the armed forces of the United 26 States or serving in support of such armed forces, in an area designated 27 by the president of the United States by executive order as a "combat 28 zone" at any time during the period designated by the president by exec- 29 utive order as the period of combatant activities in such zone, or 30 hospitalized outside the state as a result of injury received while 31 serving in such an area during such time, the period of service in such 32 area, plus the period of continuous hospitalization outside the state 33 attributable to such injury, and the next one hundred eighty days there- 34 after, shall be disregarded in determining, under this chapter, in 35 respect of the tax liability, including any interest, penalty, or addi- 36 tion to the tax, of such individual: 37 (1) Whether any of the following acts was performed within the time 38 prescribed therefor: 39 (A) filing any return of tax; 40 (B) payment of any tax or any installment thereof or of any other 41 liability to the commissioner of finance, in respect thereof; 42 (C) filing a petition with the tax appeals tribunal for credit or 43 refund or for redetermination of a deficiency, or application for review 44 of a decision rendered by the tax appeals tribunal; 45 (D) allowance of a credit or refund of tax; 46 (E) filing a claim for credit or refund of tax; 47 (F) assessment of tax; 48 (G) giving or making any notice or demand for the payment of any tax, 49 or with respect to any liability to the commissioner of finance in 50 respect of tax; 51 (H) collection, by the commissioner of finance, by levy or otherwise 52 of the amount of any liability in respect of tax; 53 (I) bringing suit by the city, or any officer, on its behalf, in 54 respect of any liability in respect of tax; andS. 8474 429 1 (J) any other act required or permitted under this chapter or speci- 2 fied in regulations prescribed under this section by the commissioner of 3 finance. 4 (2) The amount of any credit or refund (including interest). 5 (b) Action taken before ascertainment of right to benefits. The 6 assessment or collection of the tax imposed by this chapter or of any 7 liability to the commissioner of finance in respect of such tax, or any 8 action or proceeding by or on behalf of the commissioner of finance in 9 connection therewith, may be made, taken, begun, or prosecuted in 10 accordance with law, without regard to the provisions of subdivision (a) 11 of this section, unless prior to such assessment, collection, action, or 12 proceeding it is ascertained that the person concerned is entitled to 13 the benefit of subdivision (a) of this section. 14 (c) Members of armed forces dying in action. In the case of any person 15 who dies during an induction period while in active service as a member 16 of the armed forces of the United States, if such death occurred while 17 serving in a combat zone during a period of combatant activities in such 18 zone, as described in subdivision (a) of this section, or as a result of 19 wounds, disease or injury incurred while so serving, the tax imposed by 20 this chapter shall not apply with respect to the taxable year in which 21 falls the date of such person's death, or with respect to any prior 22 taxable year ending on or after the first day he or she so served in a 23 combat zone, and no returns shall be required in behalf of such person 24 or such person's estate for such year; and the tax for any such taxable 25 year which is unpaid at the date of his or her death, including inter- 26 est, additions to tax and penalties, if any, shall not be assessed and 27 if assessed, the assessment shall be abated and, if collected, shall be 28 refunded to the legal representative of such person's estate if one has 29 been appointed and has qualified, or, if no legal representative has 30 been appointed or has qualified, to such person's surviving spouse. 31 § 11-537 General powers of commissioner of finance. (a) General. The 32 commissioner of finance shall administer and enforce the tax imposed by 33 this chapter and the commissioner is authorized to make such rules and 34 regulations, and to require such facts and information to be reported, 35 as the commissioner may deem necessary to enforce the provision of this 36 chapter; and the commissioner may delegate his or her powers and func- 37 tions under all parts of this chapter to one of the commissioner's depu- 38 ties or to any employee or employees of the commissioner's department. 39 (b) Examination of books and witnesses. The commissioner of finance 40 for the purpose of ascertaining the correctness of any return, or for 41 the purpose of making an estimate of tax of any person, shall have power 42 to examine or to cause to have examined, by any agent or representative 43 designated by the commissioner for that purpose, any books, papers, 44 records or memoranda bearing upon the matters required to be included in 45 the return, and may require the attendance of the person rendering the 46 return or any officer or employee of such person, or the attendance of 47 any other person having knowledge in the premises, and may take testimo- 48 ny and require proof material for the commissioner's information, with 49 power to administer oaths to such person or persons. 50 (c) Abatement authority. The commissioner of finance, of his or her 51 own motion, may abate any small unpaid balance of an assessment of tax 52 under this part, or any liability in respect thereof, if the commis- 53 sioner of finance determines under uniform rules prescribed by the 54 commissioner that the administration and collection costs involved would 55 not warrant collection of the amount due. The commissioner may also 56 abate, of his or her own motion, the unpaid portion of the assessment ofS. 8474 430 1 any tax or any liability in respect thereof, which is excessive in 2 amount, or is assessed after the expiration of the period of limitation 3 properly applicable thereto, or is erroneously or illegally assessed. 4 No claim for abatement under this subdivision shall be filed by a 5 taxpayer. 6 (d) Special refund authority. Where no questions of fact or law are 7 involved and it appears from the records of the commissioner of finance 8 that any moneys have been erroneously or illegally collected from any 9 taxpayer or other person, or paid by such taxpayer or other person under 10 a mistake of facts, pursuant to the provisions of this chapter, the 11 commissioner of finance at any time, without regard to any period of 12 limitations, shall have the power, upon making a record of his or her 13 reasons therefor in writing, to cause such moneys so paid and being 14 erroneously and illegally held to be refunded. 15 (e) Cooperation with the United States, this state and other states. 16 Notwithstanding the provisions of section 11-538 of this chapter, the 17 commissioner of finance may permit the secretary of the treasury of the 18 United States or the secretary's delegates, or the proper officer of 19 this or any other state imposing an income tax upon the incomes of indi- 20 viduals, or the authorized representative of any such officer, to 21 inspect any return filed under this chapter or may furnish to such offi- 22 cer or his or her authorized representative an abstract of any such 23 return or supply such officer with information concerning an item 24 contained in any such return, or disclosed by any investigation of tax 25 liability under this chapter, but such permission shall be granted or 26 such information furnished to such officer or such officer's represen- 27 tative only if the laws of the United States or of such state, as the 28 case may be, grant substantially similar privileges to the commissioner 29 of finance and such information is to be used for tax purposes only; and 30 provided further the commissioner of finance may furnish to the secre- 31 tary of the treasury of the United States or the secretary's delegates 32 or to the tax commission of the state of New York or its delegates such 33 returns filed under this chapter and other tax information, as he or she 34 may consider proper for use in court actions or proceedings under the 35 internal revenue code or the tax law of the state of New York, whether 36 civil or criminal, where a written request therefor has been made to the 37 commissioner of finance by the secretary of the treasury or by such tax 38 commission or by their delegates, provided the laws of the United States 39 or the laws of the state of New York grant substantially similar powers 40 to the secretary of the treasury of the United States or the secretary's 41 delegates or to such tax commission or its delegates. Where the commis- 42 sioner of finance has so authorized use of returns or other information 43 in such actions or proceedings, officers and employees of the department 44 of finance may testify in such actions or proceedings in respect to such 45 returns or other information. 46 (f) (1) Authority to set interest rates. The commissioner of finance 47 shall set the overpayment and underpayment rates of interest to be paid 48 pursuant to sections 11-524, 11-525 and 11-528 of this chapter, but if 49 no such rate or rates of interest are set, such overpayment rate shall 50 be deemed to be set at six percent per annum and such underpayment rate 51 shall be deemed to be set at seven and one-half percent per annum. Such 52 overpayment and underpayment rates shall be the rates prescribed in 53 paragraph two of this subdivision, but the underpayment rate shall not 54 be less than seven and one-half percent per annum. Any such rates set by 55 the commissioner of finance shall apply to taxes, or any portion there- 56 of, which remain or become due or overpaid on or after the date on whichS. 8474 431 1 such rates become effective and shall apply only with respect to inter- 2 est computed or computable for periods or portions of periods occurring 3 in the period during which such rates are in effect. 4 (2) General rule. (A) Overpayment rate. The overpayment rate set under 5 this subdivision shall be the sum of (i) the federal short-term rate as 6 provided under paragraph three of this subdivision, plus (ii) two 7 percentage points. 8 (B) Underpayment rate. The underpayment rate set under this subdivi- 9 sion shall be the sum of (i) the federal short-term rate as provided 10 under paragraph three of this subdivision, plus (ii) seven percentage 11 points. 12 (3) Federal short-term rate. For purposes of this subdivision: 13 (A) The federal short-term rate for any month shall be the federal 14 short-term rate determined by the United States secretary of the treas- 15 ury during such month in accordance with subsection (d) of section 16 twelve hundred seventy-four of the internal revenue code for use in 17 connection with section six thousand six hundred twenty-one of the 18 internal revenue code. Any such rate shall be rounded to the nearest 19 full percent, or, if a multiple of one-half of one percent, such rate 20 shall be increased to the next highest full percent. 21 (B) Period during which rate applies. 22 (i) In general. Except as provided in clause (ii) of this subpara- 23 graph, the federal short-term rate for the first month in each calendar 24 quarter shall apply during the first calendar quarter beginning after 25 such month. 26 (ii) Special rule for the month of September, nineteen hundred eight- 27 y-nine. The federal short-term rate for the month of April, nineteen 28 hundred eighty-nine shall apply with respect to setting the overpayment 29 and underpayment rates for the month of September, nineteen hundred 30 eighty-nine. 31 (4) Publication of interest rates. The commissioner of finance shall 32 cause to be published in the City Record, and give other appropriate 33 general notice of, the interest rates to be set under this subdivision 34 no later than twenty days preceding the first day of the calendar quar- 35 ter during which such interest rates apply. The setting and publication 36 of such interest rates shall not be included within paragraph (a) of 37 subdivision five of section one thousand forty-one of the city charter 38 of the preceding municipality as it existed January first, nineteen 39 hundred ninety-four relating to the definition of a rule. 40 (5) Cross-reference. For provisions relating to the power of the 41 commissioner of finance to abate small amounts of interest, see subdivi- 42 sion (c) of this section. 43 (g) In computing the amount of any interest required to be paid under 44 this chapter by the commissioner of finance or by the taxpayer, or any 45 other amount determined by reference to such amount of interest, such 46 interest and such amount shall be compounded daily. The provisions of 47 this subdivision shall not apply for purposes of computing the amount of 48 any addition to tax for failure to pay estimated tax under subdivision 49 (c) of section 11-525 of this chapter. 50 § 11-538 Secrecy requirement and the penalties for violation. 1. 51 Except in accordance with proper judicial order or as otherwise provided 52 by law, it shall be unlawful for the commissioner of finance, the 53 department of finance of the city, any officer or employee of the 54 department of finance of the city, any person engaged or retained by 55 such department on an independent contract basis, any depository to 56 which any return may be delivered as provided in subdivision four ofS. 8474 432 1 this section, any officer or employee of such depository, the tax 2 appeals tribunal, any commissioner or employee of such tribunal, or any 3 person who, pursuant to this section, is permitted to inspect any report 4 or return or to whom a copy, an abstract or a portion of any report or 5 return is furnished, or to whom any information contained in any report 6 or return is furnished, to divulge or make known in any manner the 7 amount of income or any particulars set forth or disclosed in any report 8 or return required under this chapter. The officers charged with the 9 custody of such reports and returns shall not be required to produce any 10 of them or evidence of anything contained in them in any action or 11 proceeding in any court, except on behalf of the city in an action or 12 proceeding under the provisions of this chapter or in any other action 13 or proceeding involving the collection of a tax due under this chapter 14 to which the city is a party or a claimant, or on behalf of any party to 15 any action or proceeding under the provisions of this chapter when the 16 reports, returns or facts shown thereby are directly involved in such 17 action or proceeding, in any of which events the court may require the 18 production of, and may admit in evidence, so much of said reports, 19 returns or of the facts shown thereby, as are pertinent to the action or 20 proceeding and no more. Nothing herein shall be construed to prohibit 21 the delivery to a taxpayer or to the taxpayer's duly authorized repre- 22 sentative of a certified copy of any return or report filed in 23 connection with his or her tax or to prohibit the publication of statis- 24 tics so classified as to prevent the identification of particular 25 reports or returns and the items thereof, or the inspection by the 26 corporation counsel or other legal representatives of the city of the 27 report or return of any taxpayer who shall bring action to set aside or 28 review the tax based thereon, or against whom an action or proceeding 29 under this chapter has been recommended by the commissioner of finance 30 or the corporation counsel or has been instituted, or the inspection of 31 the reports or returns required under this chapter by the duly desig- 32 nated officers or employees of the city for purposes of an audit under 33 this chapter or an audit authorized by the enacting of this chapter. 34 Reports and returns shall be preserved for three years and thereafter 35 until the commissioner of finance orders them to be destroyed. 36 2. Any officer or employee of the city or the state who willfully 37 violates the provisions of subdivision one of this section shall be 38 dismissed from office and be incapable of holding any public office in 39 the city or the state for a period of five years thereafter. 40 3. Cross-reference: For criminal penalties, see chapter forty of this 41 title. 42 4. Notwithstanding the provisions of subdivision one of this section, 43 the commissioner of finance, in his or her discretion, may require or 44 permit any or all persons liable for any tax imposed by this chapter, to 45 make payments on account of estimated tax and payment of any tax, penal- 46 ty or interest imposed by this chapter to banks, banking houses or trust 47 companies designated by the commissioner of finance and to file declara- 48 tions of estimated tax and reports and returns with such banks, banking 49 houses or trust companies as agents of the commissioner of finance, in 50 lieu of making any such payment directly to the commissioner of finance. 51 However, the commissioner of finance shall designate only such banks, 52 banking houses or trust companies as are depositories or financial 53 agents of the city. 54 5. This section shall be deemed a state statute for purposes of para- 55 graph (a) of subdivision two of section eighty-seven of the public offi- 56 cers law.S. 8474 433 1 6. Notwithstanding anything in subdivision one of this section to the 2 contrary, if a taxpayer has petitioned the tax appeals tribunal for 3 administrative review as provided in section one hundred seventy of the 4 charter of the preceding municipality as it existed January first, nine- 5 teen hundred ninety-four, the commissioner of finance shall be author- 6 ized to present to the tribunal any report or return of such taxpayer, 7 or any information contained therein or relating thereto, which may be 8 material or relevant to the proceeding before the tribunal. The tax 9 appeals tribunal shall be authorized to publish a copy or a summary of 10 any decision rendered pursuant to section one hundred seventy-one of the 11 charter of the preceding municipality as it existed January first, nine- 12 teen hundred ninety-four. 13 7. Notwithstanding anything in subdivision one of this section, the 14 commissioner of finance may disclose to a taxpayer or a taxpayer's 15 related member, as defined in subdivision (e) of section 11-506 of this 16 chapter, information relating to any royalty paid, incurred or received 17 by such taxpayer or related member to or from the other, including the 18 treatment of such payments by the taxpayer or the related member in any 19 report or return transmitted to the commissioner of finance under this 20 title. 21 § 11-539 Inconsistencies with other laws. If any provision of this 22 chapter is inconsistent with, in conflict with, or contrary to any other 23 provision of law, such provision of this chapter shall prevail over such 24 other provision and such other provision shall be deemed to have been 25 amended, superseded or repealed to the extent of such inconsistency, 26 conflict or contrariety. 27 § 11-540 Disposition of revenues. All revenues resulting from the 28 imposition of the taxes under this chapter shall be paid into the treas- 29 ury of the city and shall be credited to and deposited in the general 30 fund of the city, but no part of such revenues may be expended unless 31 appropriated in the annual budget of the city. 32 CHAPTER 6 33 CITY BUSINESS 34 TAXES 35 SUBCHAPTER 1 36 GENERAL PROVISIONS 37 § 11-601 Definitions. When used in subchapters one through five: 38 1. "Taxpayer" means any corporation, association or other entity or 39 individual subject to tax under this chapter; 40 2. "State", "the state" or "this state" means the state of New York; 41 3. "Tax law", "insurance law", "private housing finance law", "envi- 42 ronmental conservation law", "public housing law", "state finance law", 43 "general municipal law", "public service law", "workers' compensation 44 law", "business corporation law", "civil practice law and rules", "crim- 45 inal procedure law", and "banking law" refer to laws of the state; 46 4. "Superintendent of insurance", and "commissioner of health" refer 47 to officials of the state; 48 5. "Commissioner of finance" means the commissioner of finance of the 49 city; 50 6. "Department of finance" means the department of finance of the 51 city; 52 7. "Domestic corporation" means a corporation organized under the laws 53 of the state; andS. 8474 434 1 8. "Tax appeals tribunal" means the tax appeals tribunal established 2 by section one hundred sixty-eight of the charter of the preceding muni- 3 cipality as it existed January first, nineteen hundred ninety-four. 4 9. "REIT" means a real estate investment trust as defined in section 5 eight hundred fifty-six of the internal revenue code. 6 10. "RIC" means a regulated investment company as defined in section 7 eight hundred fifty-one of the internal revenue code. 8 11. "Captive REIT" means a REIT (a) that is not regularly traded on an 9 established securities market, and (b) more than fifty percent of the 10 voting stock of which is owned or controlled, directly or indirectly, by 11 a single corporation that is not exempt from federal income tax and is 12 not a REIT. Any voting stock in a REIT that is held in a segregated 13 asset account of a life insurance corporation, as described in section 14 eight hundred seventeen of the internal revenue code, shall not be taken 15 into account for purposes of determining whether a REIT is a captive 16 REIT. 17 12. "Captive RIC" means a RIC (a) that is not regularly traded on an 18 established securities market, and (b) more than fifty percent of the 19 voting stock of which is owned or controlled, directly or indirectly, by 20 a single corporation that is not exempt from federal income tax and is 21 not a RIC. Any voting stock in a RIC that is held in a segregated asset 22 account of a life insurance corporation, as described in section eight 23 hundred seventeen of the internal revenue code, shall not be taken into 24 account for purposes of determining whether a RIC is a captive RIC. 25 13. Unless a different meaning is clearly required, any term used in 26 this chapter shall have the same meaning as when used in a comparable 27 context in the laws of the United States relating to federal income 28 taxes, and any reference to the laws of the United States shall mean the 29 provisions of the internal revenue code of nineteen hundred fifty-four, 30 and amendments thereto, and other provisions of the laws of the United 31 States relating to federal income taxes, as the same are included in the 32 appendix to this chapter. The quotation of the aforesaid laws of the 33 United States is intended to make them a part of any appropriate chapter 34 and to avoid constitutional uncertainties which might result if such 35 laws were merely incorporated by reference. The quotation of a 36 provision of the federal internal revenue code or of any other law of 37 the United States shall not necessarily mean that it is applicable to or 38 has relevance to any of the chapters. 39 SUBCHAPTER 2 40 GENERAL CORPORATION TAX 41 § 11-602 Definitions. When used in this subchapter: 42 1. (a) "Corporation" includes (1) an association within the meaning of 43 paragraph three of subsection (a) of section seventy-seven hundred one 44 of the internal revenue code, including a limited liability company, (2) 45 a joint-stock company or association, (3) a publicly traded partnership 46 treated as a corporation for purposes of the internal revenue code 47 pursuant to section seventy-seven hundred four thereof and (4) any busi- 48 ness conducted by a trustee or trustees wherein interest or ownership is 49 evidenced by certificate or other written instrument; 50 (b) (1) Notwithstanding paragraph (a) of this subdivision, an unincor- 51 porated organization that (i) is described in subparagraph one or three 52 of such paragraph (a) and (ii) was subject to the provisions of chapter 53 five of this title for its taxable year beginning in nineteen hundred 54 ninety-five, may make a one-time election not to be treated as a corpo-S. 8474 435 1 ration and, instead, to continue to be subject to the provisions of 2 chapter five of this title for its taxable years beginning in nineteen 3 hundred ninety-six and thereafter. Such election shall be made on the 4 return prescribed pursuant to such chapter five for such electing organ- 5 ization's taxable year beginning in nineteen hundred ninety-six, which 6 shall be filed on or before the due date, determined with regard to 7 extensions, for filing such return. 8 (2) An election under this paragraph shall continue to be in effect 9 until revoked by the unincorporated organization. An election under this 10 paragraph shall be revoked by the filing of a return under this subchap- 11 ter for the first taxable year with respect to which such revocation is 12 to be effective, which return shall be filed on or before the due date, 13 determined with regard to extensions, for filing such return. In no 14 event shall such election or revocation be for a part of a taxable year. 15 (c) Notwithstanding paragraph (a) of this subdivision, a corporation 16 shall not include an entity classified as a partnership for federal 17 income tax purposes. 18 2. "Subsidiary" means a corporation of which over fifty per centum of 19 the number of shares of stock entitling the holders thereof to vote for 20 the election of directors or trustees is owned by the taxpayer; 21 3. "Subsidiary capital" means investments in the stock of subsidiaries 22 and any indebtedness from subsidiaries, exclusive of accounts receivable 23 acquired in the ordinary course of trade or business for services 24 rendered or for sales of property held primarily for sale to customers, 25 whether or not evidenced by written instrument, on which interest is not 26 claimed and deducted by the subsidiary for purposes of taxation under 27 this subchapter or subchapter three of this chapter, provided, however, 28 that, in the discretion of the commissioner of finance, there shall be 29 deducted from subsidiary capital any liabilities which are directly or 30 indirectly attributable to subsidiary capital; 31 4. "Investment capital" means investments in stocks, bonds and other 32 securities, corporate and governmental, not held for sale to customers 33 in the regular course of business, exclusive of subsidiary capital and 34 stock issued by the taxpayer, provided, however, that, in the discretion 35 of the commissioner of finance, there shall be deducted from investment 36 capital any liabilities which are directly or indirectly attributable to 37 investment capital; and provided, further, that investment capital shall 38 not include any such investments the income from which is excluded from 39 entire net income pursuant to the provisions of paragraph (c-1) of 40 subdivision eight of this section, and that investment capital shall be 41 computed without regard to any liabilities directly or indirectly 42 attributable to such investments, but only if air carriers organized in 43 the United States and operating in the foreign country or countries in 44 which the taxpayer has its major base of operations and in which it is 45 organized, resident or headquartered, if not in the same country as its 46 major base of operations, are not subject to any tax based on or meas- 47 ured by capital imposed by such foreign country or countries or any 48 political subdivision thereof, or if taxed are provided an exemption, 49 equivalent to that provided for herein, from any tax based on or meas- 50 ured by capital imposed by such foreign country or countries and from 51 any such tax imposed by any political subdivision thereof; 52 5. "Investment income" means income, including capital gains in excess 53 of capital losses, from investment capital to the extent included in 54 computing entire net income, less, (a) in the discretion of the commis- 55 sioner of finance, any deductions allowable in computing entire net 56 income which are directly or indirectly attributable to investment capi-S. 8474 436 1 tal or investment income, and (b) such portion of any net operating loss 2 deduction allowable in computing entire net income, as the investment 3 income, before such deduction, bears to entire net income, before such 4 deduction, provided, however, that in no case shall investment income 5 exceed entire net income; 6 6. (a) "Business capital" means all assets, other than subsidiary 7 capital, investment capital and stock issued by the taxpayer, less 8 liabilities not deducted from subsidiary or investment capital except 9 that cash on hand and on deposit shall be treated as investment capital 10 or as business capital as the taxpayer may elect; 11 (b) Provided, however, "business capital" shall not include assets to 12 the extent employed for the purpose of generating income which is 13 excluded from entire net income pursuant to the provisions of paragraph 14 (c-1) of subdivision eight of this section and shall be computed without 15 regard to liabilities directly or indirectly attributable to such 16 assets, but only if air carriers organized in the United States and 17 operating in the foreign country or countries in which the taxpayer has 18 its major base of operations and in which it is organized, resident or 19 headquartered, if not in the same country as its major base of oper- 20 ations, are not subject to any tax based on or measured by capital 21 imposed by such foreign country or countries or any political subdivi- 22 sion thereof, or if taxed, are provided an exemption, equivalent to that 23 provided for herein, from any tax based on or measured by capital 24 imposed by such foreign country or countries and from any such tax 25 imposed by any political subdivision thereof. 26 7. "Business income" means entire net income minus investment income; 27 8. "Entire net income" means total net income from all sources, which 28 shall be presumably the same as the entire taxable income, but not 29 alternative minimum taxable income, 30 (i) which the taxpayer is required to report to the United States 31 treasury department, or 32 (ii) which the taxpayer would have been required to report to the 33 United States treasury department if it had not made an election under 34 subchapter s of chapter one of the internal revenue code, or 35 (iii) which the taxpayer, in the case of a corporation which is exempt 36 from federal income tax, other than the tax on unrelated business taxa- 37 ble income imposed under section five hundred eleven of the internal 38 revenue code, but which is subject to tax under this subchapter, would 39 have been required to report to the United States treasury department 40 but for such exemption, or 41 (iv) which the taxpayer would have been required to report to the 42 United States treasury department if no election had been made to treat 43 the taxpayer as a qualified subchapter s subsidiary under paragraph 44 three of subsection (b) of section thirteen hundred sixty-one of the 45 internal revenue code, except as provided in this paragraph, and subject 46 to any modification required by paragraphs (d) and (e) of subdivision 47 three of section 11-604 of this subchapter. 48 (a) Entire net income shall not include: 49 (1) income, gains and losses from subsidiary capital which do not 50 include the amount of a recovery in respect of any war loss; 51 (2) fifty percent of dividends other than from subsidiaries, except 52 that entire net income shall include one hundred percent of dividends on 53 shares of stock with respect to which a dividend deduction is disallowed 54 by subsection (c) of section two hundred forty-six of the internal 55 revenue code;S. 8474 437 1 (2-a) any amounts treated as dividends pursuant to section seventy- 2 eight of the internal revenue code and not otherwise deductible under 3 subparagraphs one and two of this paragraph; 4 (3) bona fide gifts; 5 (4) income and deductions with respect to amounts received from school 6 districts and from corporations and associations, organized and operated 7 exclusively for religious, charitable or educational purposes, no part 8 of the net earnings of which inures to the benefit of any private share- 9 holder or individual, for the operation of school buses; 10 (5) any refund or credit of a tax imposed under this chapter, or 11 imposed by article nine or nine-A or thirty-two of the tax law as such 12 article was in effect on December thirty-first, two thousand fourteen, 13 for which tax no exclusion or deduction was allowed in determining the 14 taxpayer's entire net income under this subchapter or subchapter three 15 of this chapter for any prior year; 16 (6) in the case of a taxpayer who is separately or as a partner of a 17 partnership doing an insurance business as a member of the New York 18 insurance exchange described in section six thousand two hundred one of 19 the insurance law, any item of income, gain, loss or deduction of such 20 business which is the taxpayer's distributive or pro rata share for 21 federal income tax purposes or which the taxpayer is required to take 22 into account separately for federal income tax purposes; 23 (7) that portion of wages and salaries paid or incurred for the taxa- 24 ble year for which a deduction is not allowed pursuant to the provisions 25 of section two hundred eighty C of the internal revenue code; 26 (8) for taxable years beginning after December thirty-first, nineteen 27 hundred eighty-one, except with respect to property which is a qualified 28 mass commuting vehicle described in subparagraph (D) of paragraph eight 29 of subsection (f) of section one hundred sixty-eight of the internal 30 revenue code, relating to qualified mass commuting vehicles, and proper- 31 ty of a taxpayer principally engaged in the conduct of an aviation, 32 steamboat, ferry or navigation business, or two or more of such busi- 33 nesses, which is placed in service before taxable years beginning in 34 nineteen hundred eighty-nine, any amount which is included in the 35 taxpayer's federal taxable income solely as a result of an election made 36 pursuant to the provisions of such paragraph eight as it was in effect 37 for agreements entered into prior to January first, nineteen hundred 38 eighty-four; 39 (9) for taxable years beginning after December thirty-first, nineteen 40 hundred eighty-one, except with respect to property which is a qualified 41 mass commuting vehicle described in subparagraph (D) of paragraph eight 42 of subsection (f) of section one hundred sixty-eight of the internal 43 revenue code, relating to qualified mass commuting vehicles, and proper- 44 ty of a taxpayer principally engaged in the conduct of an aviation, 45 steamboat, ferry or navigation business, or two or more of such busi- 46 nesses, which is placed in service before taxable years beginning in 47 nineteen hundred eighty-nine, any amount which the taxpayer could have 48 excluded from federal taxable income had it not made the election 49 provided for in such paragraph eight as it was in effect for agreements 50 entered into prior to January first, nineteen hundred eighty-four; 51 (10) the amount deductible pursuant to paragraph (j) of this subdivi- 52 sion; 53 (11) upon the disposition of property to which paragraph (j) of this 54 subdivision applies, the amount, if any, by which the aggregate of the 55 amounts described in subparagraph eleven of paragraph (b) of this subdi- 56 vision attributable to such property exceeds the aggregate of theS. 8474 438 1 amounts described in paragraph (j) of this subdivision attributable to 2 such property; 3 (12) for taxable years ending after September tenth, two thousand one, 4 the amount deductible pursuant to paragraph (k) of this subdivision; 5 (13) the amount deductible pursuant to paragraph (o) of this subdivi- 6 sion; 7 (14) any amount excepted, for purposes of subsection (a) of section 8 one hundred eighteen of the internal revenue code, from the term 9 "contribution to the capital of the taxpayer" by paragraph two of 10 subsection (b) of section one hundred eighteen of the internal revenue 11 code; 12 (15) the amount of any gain added back to determine entire net income 13 in a previous taxable year pursuant to subparagraph nineteen of para- 14 graph (b) of this subdivision that is included in federal gross income 15 for the taxable year; and 16 (16) the amount of any grant received through either the COVID-19 17 pandemic small business recovery grant program, pursuant to section 18 sixteen-ff of the New York state urban development corporation act, or 19 the small business resilience grant program administered by the depart- 20 ment of small business services, to the extent the amount of either such 21 grant is included in federal taxable income. 22 (a-1) Notwithstanding any other provision of this subchapter, for 23 taxable years beginning on or after August first, two thousand two, in 24 the case of a taxpayer that is a partner in a partnership subject to the 25 tax imposed by chapter eleven of this title as a utility, as defined in 26 subdivision six of section 11-1101 of such chapter, entire net income 27 shall not include the taxpayer's distributive or pro rata share for 28 federal income tax purposes of any item of income, gain, loss or 29 deduction of such partnership, or any item of income, gain, loss or 30 deduction of such partnership that the taxpayer is required to take into 31 account separately for federal income tax purposes. 32 (b) Entire net income shall be determined without the exclusion, 33 deduction or credit of: 34 (1) the amount of any specific exemption or credit allowed in any law 35 of the United States imposing any tax on or measured by the income of 36 any corporation, 37 (2) any part of any income from dividends or interest on any kind of 38 stock, securities, or indebtedness, except as provided in clauses one 39 and two of paragraph (a) of this subdivision, 40 (3) taxes on or measured by profits or income paid or accrued to the 41 United States, any of its possessions or to any foreign country, includ- 42 ing taxes in lieu of any of the foregoing taxes otherwise generally 43 imposed by any foreign country or by any possession of the United 44 States, or taxes on or measured by profited or income paid or accrued to 45 the state or any subdivision thereof, including taxes paid or accrued 46 under article nine, nine-A, thirteen-A, twenty-four-A, or twenty-four-B 47 of the tax law or under article thirty-two of the tax law as such arti- 48 cle was in effect on December thirty-first, two thousand fourteen, 49 (3-a) taxes on or measured by profits or income, or which include 50 profits or income as a measure, paid or accrued to any other state of 51 the United States, or any political subdivision thereof, or to the 52 District of Columbia, including taxes expressly in lieu of any of the 53 foregoing taxes otherwise generally imposed by any other state of the 54 United States, or any political subdivision thereof, or the District of 55 Columbia; 56 (4) taxes imposed under this chapter,S. 8474 439 1 (4-a) (A) the entire amount allowable as an exclusion or deduction for 2 stock transfer taxes imposed by article twelve of the tax law in deter- 3 mining the entire taxable income which the taxpayer is required to 4 report to the United States treasury department but only to the extent 5 that such taxes are incurred and paid in market making transactions, and 6 (B) the amount allowed as an exclusion or deduction for sales and use 7 taxes imposed by section eleven hundred seven of the tax law in deter- 8 mining the entire taxable income which the taxpayer is required to 9 report to the United States treasury department but only such portion of 10 such exclusion or deduction which is not in excess of the amount of the 11 credit allowed pursuant to subdivision twelve of section 11-604 of this 12 subchapter, 13 (4-b) the amount allowed as an exclusion or a deduction imposed by the 14 tax law in determining the entire taxable income which the taxpayer is 15 required to report to the United States treasury department but only 16 such portion of such exclusion or deduction which is not in excess of 17 the amount of the credit allowed pursuant to subdivision thirteen of 18 section 11-604 of this subchapter, 19 (4-c) the amount allowed as an exclusion or a deduction imposed by the 20 tax law in determining the entire taxable income which the taxpayer is 21 required to report to the United States treasury department but only 22 such portion of such exclusion or deduction which is not in excess of 23 the amount of the credit allowed pursuant to subdivision fourteen of 24 section 11-604 of this subchapter, 25 (4-d) the amount allowed as an exclusion or deduction for sales and 26 use taxes imposed by section eleven hundred seven of the tax law in 27 determining the entire taxable income which the taxpayer is required to 28 report to the United States Treasury Department, but only such portion 29 of such exclusion or deduction which is not in excess of the amount of 30 the credit allowed pursuant to subdivision fifteen of section 11-604 of 31 this chapter, 32 (4-g) The amount allowed as an exclusion or deduction for sales and 33 use taxes imposed by section eleven hundred seven of the tax law, or for 34 any interest imposed in connection therewith, in determining the entire 35 taxable income which the taxpayer is required to report to the United 36 States treasury department but only such portion of such exclusion or 37 deduction which is not in excess of the amount of the credit allowed 38 pursuant to subdivision seventeen-a of section 11-604 of this subchap- 39 ter. 40 (6) in the discretion of the commissioner of finance, any amount of 41 interest directly or indirectly and any other amount directly or indi- 42 rectly attributable as a carrying charge or otherwise to subsidiary 43 capital or to income, gains or losses from subsidiary capital, 44 (7) any amount by reason of the granting, issuing or assuming of a 45 restricted stock option, as defined in the internal revenue code of 46 nineteen hundred fifty-four, or by reason of the transfer of the share 47 of stock upon the exercise of the option, unless such share is disposed 48 of by the grantee of the option within two years from the date of the 49 granting of the option or within six months after the transfer of such 50 share to the grantee, 51 (8) in the case of a taxpayer who is separately or as a partner of a 52 partnership doing an insurance business as a member of the New York 53 insurance exchange described in section six thousand two hundred one of 54 the insurance law, such taxpayer's distributive or pro rata share of the 55 allocated entire net income of such business as determined under 56 sections fifteen hundred three and fifteen hundred four of the tax law,S. 8474 440 1 provided however, in the event such allocated entire net income is a 2 loss, such taxpayer's distributive or pro rata share of such loss shall 3 not be subtracted from federal taxable income in computing entire net 4 income under this subdivision, 5 (9) for taxable years beginning after December thirty-first, nineteen 6 hundred eighty-one, except with respect to property which is a qualified 7 mass commuting vehicle described in subparagraph (D) of paragraph eight 8 of subsection (f) of section one hundred sixty-eight of the internal 9 revenue code, relating to qualified mass commuting vehicles, and proper- 10 ty of a taxpayer principally engaged in the conduct of an aviation, 11 steamboat, ferry or navigation business, or two or more of such busi- 12 nesses, which is placed in service before taxable years beginning in 13 nineteen hundred eighty-nine, any amount which the taxpayer claimed as a 14 deduction in computing its federal taxable income solely as a result of 15 an election made pursuant to the provisions of such paragraph eight as 16 it was in effect for agreements entered into prior to January first, 17 nineteen hundred eighty-four, 18 (10) for taxable years beginning after December thirty-first, nineteen 19 hundred eighty-one, except with respect to property which is a qualified 20 mass commuting vehicle described in subparagraph (D) of paragraph eight 21 of subsection (f) of section one hundred sixty-eight of the internal 22 revenue code, relating to qualified mass commuting vehicles, and proper- 23 ty of a taxpayer principally engaged in the conduct of an aviation, 24 steamboat, ferry or navigation business, or two or more of such busi- 25 nesses, which is placed in service before taxable years beginning in 26 nineteen hundred eighty-nine, any amount which the taxpayer would have 27 been required to include in the computation of its federal taxable 28 income had it not made the election permitted pursuant to such paragraph 29 eight as it was in effect for agreements entered into prior to January 30 first, nineteen hundred eighty-four, 31 (11) in the case of property placed in service in taxable years begin- 32 ning before nineteen hundred ninety-four, for taxable years beginning 33 after December thirty-first, nineteen hundred eighty-one, except with 34 respect to property subject to the provisions of section two hundred 35 eighty-F of the internal revenue code, property subject to the 36 provisions of section one hundred sixty-eight of the internal revenue 37 code which is placed in service in this state in taxable years beginning 38 after December thirty-first, nineteen hundred eighty-four and property 39 of a taxpayer principally engaged in the conduct of an aviation, steam- 40 boat, ferry or navigation business, or two or more of such businesses, 41 which is placed in service before taxable years beginning in nineteen 42 hundred eighty-nine, the amount allowable as a deduction determined 43 under section one hundred sixty-eight of the internal revenue code, 44 (12) upon the disposition of property to which paragraph (j) of this 45 subdivision applies, the amount, if any, by which the aggregate of the 46 amounts described in such paragraph (j) attributable to such property 47 exceeds the aggregate of the amounts described in subparagraph eleven of 48 this paragraph attributable to such property, 49 (13) for taxable years ending after September tenth, two thousand one, 50 in the case of qualified property described in paragraph two of 51 subsection k of section one hundred sixty-eight of the internal revenue 52 code, other than qualified resurgence zone property described in para- 53 graph (m) of this subdivision, and other than qualified New York Liberty 54 Zone property described in paragraph two of subsection b of section 55 fourteen hundred L of the internal revenue code, without regard to 56 clause (i) of subparagraph (C) of such paragraph, the amount allowableS. 8474 441 1 as a deduction under section one hundred sixty-seven of the internal 2 revenue code, 3 (14) for taxable years beginning on or after January first, two thou- 4 sand four, in the case of a taxpayer that is not an eligible farmer as 5 defined in subsection (n) of section six hundred six of the tax law, the 6 amount allowable as a deduction under sections one hundred seventy-nine, 7 one hundred sixty-seven and one hundred sixty-eight of the internal 8 revenue code with respect to a sport utility vehicle that is not a 9 passenger automobile as defined in paragraph five of subsection (d) of 10 section two hundred eighty F of the internal revenue code, 11 (15) the amount of any deduction allowed pursuant to section one 12 hundred ninety-nine of the internal revenue code, 13 (16) the amount of any federal deduction for taxes imposed under arti- 14 cle twenty-three of the tax law, 15 (17) the amount of any federal deduction that would have been allowed 16 pursuant to subparagraph (A) of paragraph one of subdivision (a) of 17 section two hundred fifty of the internal revenue code if the taxpayer 18 had not made an election under subchapter s of chapter one of the inter- 19 nal revenue code, 20 (18) for taxable years beginning in two thousand nineteen and two 21 thousand twenty, the amount of the increase in the federal interest 22 deduction allowed pursuant to paragraph ten of subdivision (j) of 23 section one hundred sixty-three of the internal revenue code, and 24 (19) the amount of any gain excluded from federal gross income for the 25 taxable year by subparagraph (A) of paragraph (1) of subsection (a) of 26 section one thousand four hundred Z-two of the internal revenue code. 27 (c) Entire net income shall include income within and without the 28 United States; 29 (c-1)(1) Notwithstanding any other provision of this subchapter, in 30 the case of a taxpayer which is a foreign air carrier holding a foreign 31 air carrier permit issued by the United States department of transporta- 32 tion pursuant to section four hundred two of the federal aviation act of 33 nineteen hundred fifty-eight, as amended, and which is qualified under 34 subparagraph two of this paragraph, entire net income shall not include, 35 and shall be computed without the deduction of, amounts directly or 36 indirectly attributable to, (i) any income derived from the interna- 37 tional operation of aircraft as described in and subject to the 38 provisions of section eight hundred eighty-three of the internal revenue 39 code, (ii) income without the United States which is derived from the 40 operation of aircraft, and (iii) income without the United States which 41 is of a type described in subdivision (a) of section eight hundred 42 eighty-one of the internal revenue code except that it is derived from 43 sources without the United States. Entire net income shall include 44 income described in clauses (i), (ii) and (iii) of this subparagraph in 45 the case of taxpayers not described in this subparagraph. 46 (2) A taxpayer is qualified under this subparagraph if air carriers 47 organized in the United States and operating in the foreign country or 48 countries in which the taxpayer has its major base of operations and in 49 which it is organized, resident or headquartered, if not in the same 50 country as its major base of operations, are not subject to any income 51 tax or other tax based on or measured by income or receipts imposed by 52 such foreign country or countries or any political subdivision thereof, 53 or if so subject to such tax, are provided an exemption from such tax 54 equivalent to that provided for in this paragraph. 55 (d) The commissioner of finance may, whenever necessary in order prop- 56 erly to reflect the entire net income of any taxpayer, determine theS. 8474 442 1 year or period in which any item of income or deduction shall be 2 included, without regard to the method of accounting employed by the 3 taxpayer; 4 (e) The entire net income of any bridge commission created by act of 5 congress to construct a bridge across an international boundary means 6 its gross income less the expense of maintaining and operating its prop- 7 erties, the annual interest upon its bonds and other obligations, and 8 the annual charge for the retirement of such bonds or obligations at 9 maturity; 10 (f) A net operating loss deduction shall be allowed which shall be the 11 same as the net operating loss deduction allowed under section one 12 hundred seventy-two of the internal revenue code or which would have 13 been allowed if the taxpayer had not made an election under subchapter s 14 of chapter one of the internal revenue code, except that in every 15 instance where such deduction is allowed under this subchapter: 16 (1) any net operating loss included in determining such deduction 17 shall be adjusted to reflect the inclusions and exclusions from entire 18 net income pursuant to paragraphs (a), (b), (g) and (h) of this subdivi- 19 sion, 20 (2) such deductions shall not include any net operating loss sustained 21 during any taxable year in which the taxpayer was not subject to the tax 22 imposed by this subchapter, 23 (3) such deduction shall not exceed the deduction for the taxable year 24 allowed under section one hundred seventy-two of the internal revenue 25 code, or the deduction for the taxable year which would have been 26 allowed if the taxpayer had not made an election under subchapter s of 27 chapter one of the internal revenue code, 28 (4) any net operating loss for a taxable year beginning in nineteen 29 hundred eighty-one shall be computed without regard to the deduction 30 allowed with respect to recovery property under section one hundred 31 sixty-eight of the internal revenue code; in lieu of such deduction, a 32 taxpayer shall be allowed for such taxable year with respect to such 33 property the depreciation deduction allowable under section one hundred 34 sixty-seven of such code as such section was in full force and effect on 35 December thirty-first, nineteen hundred eighty, and 36 (5) the net operating loss deduction allowed under section one hundred 37 seventy-two of the internal revenue code shall for purposes of this 38 paragraph be determined as if the taxpayer had elected under such 39 section to relinquish the entire carryback period with respect to net 40 operating losses, except with respect to the first ten thousand dollars 41 of each of such losses, sustained during taxable years ending after June 42 thirtieth, nineteen hundred eighty-nine. 43 (6) Notwithstanding any other provision of this subchapter to the 44 contrary, for taxable years beginning before January first, two thousand 45 twenty-one, any amendment to section one hundred seventy-two of the 46 internal revenue code made after March first, two thousand twenty shall 47 not apply to this subchapter. 48 (g) At the election of the taxpayer, a deduction shall be allowed for 49 expenditures paid or incurred during the taxable year for the 50 construction, reconstruction, erection or improvement of industrial 51 waste treatment facilities and air pollution control facilities. 52 (1)(A) The term "industrial waste treatment facilities" shall mean 53 facilities for the treatment, neutralization or stabilization of indus- 54 trial waste, as the term "industrial waste" is defined in section 55 17-0105 of the environmental conservation law, from a point immediately 56 preceding the point of such treatment, neutralization or stabilizationS. 8474 443 1 to the point of disposal, including the necessary pumping and transmit- 2 ting facilities, but excluding such facilities installed for the primary 3 purpose of salvaging materials which are usable in the manufacturing 4 process or are marketable. 5 (B) The term "air pollution control facilities" shall mean facilities 6 which remove, reduce, or render less noxious air contaminants emitted 7 from an air contamination source, as the terms "air contaminant" and 8 "air contamination source" are defined in section 19-0107 of the envi- 9 ronmental conservation law, from a point immediately preceding the point 10 of such removal, reduction or rendering to the point of discharge of 11 air, meeting emission standards as established by the air pollution 12 control board, but excluding such facilities installed for the primary 13 purpose of salvaging materials which are usable in the manufacturing 14 process or are marketable and excluding those facilities which rely for 15 their efficacy on dilution, dispersion or assimilation of air contam- 16 inants in the ambient air after emission. 17 (2) However, such deduction shall be allowed only (A) with respect to 18 tangible property which is depreciable, pursuant to section one hundred 19 sixty-seven of the internal revenue code, having a situs in the city and 20 used in the taxpayer's trade or business, the construction, recon- 21 struction, erection or improvement of which, in the case of industrial 22 waste treatment facilities, is initiated on or after January first, 23 nineteen hundred sixty-six, and only for expenditures paid or incurred 24 prior to January first, nineteen hundred seventy-two, or which, in the 25 case of air pollution control facilities, is initiated on or after Janu- 26 ary first, nineteen hundred sixty-six, and 27 (B) on condition that such facilities have been certified by the state 28 commissioner of environmental conservation or the state commissioner's 29 designated representative, in the same manner as provided for in section 30 17-0707 or 19-0309 of the environmental conservation law, as applicable, 31 as complying with applicable provisions of the environmental conserva- 32 tion law, the state sanitary code and regulations, permits or orders 33 issued pursuant thereto, and 34 (C) on condition that entire net income for the taxable year and all 35 succeeding taxable years be computed without any deductions for such 36 expenditures or for depreciation of the same property other than the 37 deductions allowed by this paragraph except to the extent that the basis 38 of the property may be attributable to factors other than such expendi- 39 tures, or in case a deduction is allowable pursuant to this paragraph 40 for only a part of such expenditures, on condition that any deduction 41 allowed for federal income tax purposes for such expenditures or for 42 depreciation of the same property be proportionately reduced in comput- 43 ing entire net income for the taxable year and all succeeding taxable 44 years, and 45 (D) where the election provided for in paragraph (d) of subdivision 46 three of section 11-604 of this subchapter has not been exercised in 47 respect to the same property. 48 (3)(A) If expenditures in respect to an industrial waste treatment 49 facility or an air pollution control facility have been deducted as 50 provided herein and if within ten years from the end of the taxable year 51 in which such deduction was allowed such property or any part thereof is 52 used for the primary purpose of salvaging materials which are usable in 53 the manufacturing process or are marketable, the taxpayer shall report 54 such change of use in its report for the first taxable year during which 55 it occurs, and the commissioner of finance may recompute the tax for the 56 year or years for which such deduction was allowed and any carryback orS. 8474 444 1 carryover year, and may assess any additional tax resulting from such 2 recomputation within the time fixed by paragraph (h) of subdivision 3 three of section 11-674 of this chapter. 4 (B) If a deduction is allowed as herein provided for expenditures paid 5 or incurred during any taxable year on the basis of a temporary certif- 6 icate of compliance issued pursuant to the environmental conservation 7 law and if the taxpayer fails to obtain a permanent certificate of 8 compliance upon completion of the facilities with respect to which such 9 temporary certificate was issued, the taxpayer shall report such failure 10 in its report for the taxable year during which such facilities are 11 completed, and the commissioner of finance may recompute the tax for the 12 year or years for which such deduction was allowed and any carryback or 13 carryover year, and may assess any additional tax resulting from such 14 recomputation within the time fixed by paragraph (h) of subdivision 15 three of section 11-674 of this chapter. 16 (4) In any taxable year when property is sold or otherwise disposed 17 of, with respect to which a deduction has been allowed pursuant to this 18 paragraph, such deduction shall be disregarded in computing gain or 19 loss, and the gain or loss on the sale or other disposition of such 20 property shall be the gain or loss entering into the computation of 21 entire taxable income which the taxpayer is required to report to the 22 United States treasury for such taxable year; 23 (h) With respect to gain derived from the sale or other disposition of 24 any property acquired prior to January first, nineteen hundred sixty- 25 six; which had a federal adjusted basis on such date, or on the date of 26 its sale or other disposition prior to January first, nineteen hundred 27 sixty-six, lower than its fair market value on January first, nineteen 28 hundred sixty-six or the date of its sale or other disposition prior 29 thereto, except property described in subsections one and four of 30 section twelve hundred twenty-one of the internal revenue code, there 31 shall be deducted from entire net income, the difference between (1) the 32 amount of the taxpayer's federal taxable income, and (2) the amount of 33 the taxpayer's federal taxable income, if smaller than the amount 34 described in subparagraph one of this paragraph computed as if the 35 federal adjusted basis of each such property on the sale or other dispo- 36 sition of which gain was derived, on the date of the sale or other 37 disposition had been equal to either (A) its fair market value on Janu- 38 ary first, nineteen hundred sixty-six or the date of its sale or other 39 disposition prior to January first, nineteen hundred sixty-six, plus or 40 minus all adjustments to basis made with respect to such property for 41 federal income tax purposes for periods on and after January first, 42 nineteen hundred sixty-six or (B) the amount realized from its sale or 43 disposition, whichever is lower; provided, however, that the total 44 modification provided by this paragraph shall not exceed the amount of 45 the taxpayer's net gain from the sale or other disposition of all such 46 property. 47 (i) If the period covered by a report under this subchapter is other 48 than the period covered by the report of the United States treasury 49 department, entire net income shall be determined by multiplying the 50 federal taxable income, as adjusted pursuant to the provisions of this 51 subchapter, by the number of calendar months or major parts thereof 52 covered by the report under this subchapter and dividing by the number 53 of calendar months or major parts thereof covered by the report to such 54 department. 55 If it shall appear that such method of determining entire net income 56 does not properly reflect the taxpayer's income during the periodS. 8474 445 1 covered by the report under this subchapter, the commissioner of finance 2 shall be authorized in his or her discretion to determine such entire 3 net income solely on the basis of the taxpayer's income during the peri- 4 od covered by its report under this subchapter. 5 (j) In the case of property placed in service in taxable years begin- 6 ning before nineteen hundred ninety-four, for taxable years beginning 7 after December thirty-first, nineteen hundred eighty-one, except with 8 respect to property subject to the provisions of section two hundred 9 eighty-F of the internal revenue code and property subject to the 10 provisions of section one hundred sixty-eight of the internal revenue 11 code which is placed in service in this state in taxable years beginning 12 after December thirty-first, nineteen hundred eighty-four, and provided 13 a deduction has not been excluded from entire net income pursuant to 14 subparagraph nine of paragraph (b) of this subdivision, a taxpayer shall 15 be allowed with respect to property which is subject to the provisions 16 of section one hundred sixty-eight of the internal revenue code the 17 depreciation deduction allowable under section one hundred sixty-seven 18 of the internal revenue code as such section would have applied to prop- 19 erty placed in service on December thirty-first, nineteen hundred 20 eighty. This paragraph shall not apply to property of a taxpayer princi- 21 pally engaged in the conduct of an aviation, steamboat, ferry or naviga- 22 tion business, or two or more of such businesses, which is placed in 23 service before taxable years beginning in nineteen hundred eighty-nine. 24 (k) for taxable years ending after September tenth, two thousand one, 25 in the case of qualified property described in paragraph two of 26 subsection k of section one hundred sixty-eight of the internal revenue 27 code, other than qualified resurgence zone property described in para- 28 graph (m) of this subdivision, and other than qualified New York Liberty 29 Zone property described in paragraph two of subsection b of section 30 fourteen hundred L of the internal revenue code, without regard to 31 clause (i) of subparagraph (C) of such paragraph, the depreciation 32 deduction allowable under section one hundred sixty-seven as such 33 section would have applied to such property had it been acquired by the 34 taxpayer on September tenth, two thousand one, provided, however, that 35 for taxable years beginning on or after January first, two thousand 36 four, in the case of a passenger motor vehicle or a sport utility vehi- 37 cle subject to the provisions of paragraph (o) of this subdivision, the 38 limitation under clause (i) of subparagraph (A) of paragraph one of 39 subdivision (a) of section two hundred eighty-F of the internal revenue 40 code applicable to the amount allowed as a deduction under this para- 41 graph shall be determined as of the date such vehicle was placed in 42 service and not as of September tenth, two thousand one. 43 (l) for taxable years ending after September tenth, two thousand one, 44 upon the disposition of property to which paragraph (k) of this subdivi- 45 sion applies, the amount of any gain or loss includible in entire net 46 income shall be adjusted to reflect the inclusions and exclusions from 47 entire net income pursuant to subparagraph twelve of paragraph (a) and 48 subparagraph thirteen of paragraph (b) of this subdivision attributable 49 to such property. 50 (m) for purposes of this paragraph and paragraph (l) of this subdivi- 51 sion, qualified resurgence zone property shall mean qualified property 52 described in paragraph two of subsection k of section one hundred 53 sixty-eight of the internal revenue code substantially all of the use of 54 which is in the resurgence zone, as defined in this paragraph, and is in 55 the active conduct of a trade or business by the taxpayer in such zone, 56 and the original use of which in the resurgence zone commences with theS. 8474 446 1 taxpayer after September tenth, two thousand one. The resurgence zone 2 shall mean the area of New York county bounded on the south by a line 3 running from the intersection of the Hudson River with the Holland 4 Tunnel, and running thence east to Canal Street, then running along the 5 centerline of Canal Street to the intersection of the Bowery and Canal 6 Street, running thence in a southeasterly direction diagonally across 7 Manhattan Bridge Plaza, to the Manhattan Bridge, and thence along the 8 centerline of the Manhattan Bridge to the point where the centerline of 9 the Manhattan Bridge would intersect with the easterly bank of the East 10 River, and bounded on the north by a line running from the intersection 11 of the Hudson River with the Holland Tunnel and running thence north 12 along West Avenue to the intersection of Clarkson Street then running 13 east along the centerline of Clarkson Street to the intersection of 14 Washington Avenue, then running south along the centerline of Washington 15 Avenue to the intersection of West Houston Street, then east along the 16 centerline of West Houston Street, then at the intersection of the 17 Avenue of the Americas continuing east along the centerline of East 18 Houston Street to the easterly bank of the East River. 19 (n) Related members expense add back. 20 (1) Definitions. (A) Related member. "Related member" means a related 21 person as defined in subparagraph (c) of paragraph three of subsection 22 (b) of section four hundred sixty-five of the internal revenue code, 23 except that "fifty percent" shall be substituted for "ten percent". 24 (B) Effective rate of tax. "Effective rate of tax" means, as to any 25 city, the maximum statutory rate of tax imposed by the city on or meas- 26 ured by a related member's net income multiplied by the apportionment 27 percentage, if any, applicable to the related member under the laws of 28 said jurisdiction. For purposes of this definition, the effective rate 29 of tax as to any city is zero where the related member's net income tax 30 liability in said city is reported on a combined or consolidated return 31 including both the taxpayer and the related member where the reported 32 transactions between the taxpayer and the related member are eliminated 33 or offset. Also, for purposes of this definition, when computing the 34 effective rate of tax for a city in which a related member's net income 35 is eliminated or offset by a credit or similar adjustment that is 36 dependent upon the related member either maintaining or managing intan- 37 gible property or collecting interest income in that city, the maximum 38 statutory rate of tax imposed by said city shall be decreased to reflect 39 the statutory rate of tax that applies to the related member as effec- 40 tively reduced by such credit or similar adjustment. 41 (C) Royalty payments. Royalty payments are payments directly connected 42 to the acquisition, use, maintenance or management, ownership, sale, 43 exchange, or any other disposition of licenses, trademarks, copyrights, 44 trade names, trade dress, service marks, mask works, trade secrets, 45 patents and any other similar types of intangible assets as determined 46 by the commissioner of finance, and include amounts allowable as inter- 47 est deductions under section one hundred sixty-three of the internal 48 revenue code to the extent such amounts are directly or indirectly for, 49 related to or in connection with the acquisition, use, maintenance or 50 management, ownership, sale, exchange or disposition of such intangible 51 assets. 52 (D) Valid business purpose. A valid business purpose is one or more 53 business purposes, other than the avoidance or reduction of taxation, 54 which alone or in combination constitute the primary motivation for some 55 business activity or transaction, which activity or transaction changes 56 in a meaningful way, apart from tax effects, the economic position ofS. 8474 447 1 the taxpayer. The economic position of the taxpayer includes an increase 2 in the market share of the taxpayer, or the entry by the taxpayer into 3 new business markets. 4 (2) Royalty expense add backs. (A) For the purpose of computing entire 5 net income or other applicable taxable basis, a taxpayer must add back 6 royalty payments directly or indirectly paid, accrued, or incurred in 7 connection with one or more direct or indirect transactions with one or 8 more related members during the taxable year to the extent deductible in 9 calculating federal taxable income. 10 (B) (i) The adjustment required in this paragraph shall not apply to 11 the portion of the royalty payment that the taxpayer establishes, by 12 clear and convincing evidence of the type and in the form specified by 13 the commissioner of finance, meets all of the following requirements: 14 (I) the related member was subject to tax in this city or another city 15 within the United States or a foreign nation or some combination thereof 16 on a tax base that included the royalty payment paid, accrued or 17 incurred by the taxpayer; (II) the related member during the same taxa- 18 ble year directly or indirectly paid, accrued or incurred such portion 19 to a person that is not a related member; and (III) the transaction 20 giving rise to the royalty payment between the taxpayer and the related 21 member was undertaken for a valid business purpose. 22 (ii) The adjustment required in this paragraph shall not apply if the 23 taxpayer establishes, by clear and convincing evidence of the type and 24 in the form specified by the commissioner of finance, that: (I) the 25 related member was subject to tax on or measured by its net income in 26 this city or another city within the United States, or some combination 27 thereof; (II) the tax base for said tax included the royalty payment 28 paid, accrued or incurred by the taxpayer; and (III) the aggregate 29 effective rate of tax applied to the related member in those jurisdic- 30 tions is no less than eighty percent of the statutory rate of tax that 31 applied to the taxpayer under section 11-604 of this subchapter for the 32 taxable year. 33 (iii) The adjustment required in this paragraph shall not apply if the 34 taxpayer establishes, by clear and convincing evidence of the type and 35 in the form specified by the commissioner of finance, that: (I) the 36 royalty payment was paid, accrued or incurred to a related member organ- 37 ized under the laws of a country other than the United States; (II) the 38 related member's income from the transaction was subject to a comprehen- 39 sive income tax treaty between such country and the United States; (III) 40 the related member was subject to tax in a foreign nation on a tax base 41 that included the royalty payment paid, accrued or incurred by the 42 taxpayer; (IV) the related member's income from the transaction was 43 taxed in such country at an effective rate of tax at least equal to that 44 imposed by this city; and (V) the royalty payment was paid, accrued or 45 incurred pursuant to a transaction that was undertaken for a valid busi- 46 ness purpose and using terms that reflect an arm's length relationship. 47 (iv) The adjustment required in this paragraph shall not apply if the 48 taxpayer and the commissioner of finance agree in writing to the appli- 49 cation or use of alternative adjustments or computations. The commis- 50 sioner of finance may, in his or her discretion, agree to the applica- 51 tion or use of alternative adjustments or computations when he or she 52 concludes that in the absence of such agreement the income of the 53 taxpayer would not be properly reflected. 54 (o) For taxable years beginning on or after January first, two thou- 55 sand four, in the case of a taxpayer that is not an eligible farmer as 56 defined in subsection (n) of section six hundred six of the tax law, theS. 8474 448 1 deductions allowable under sections one hundred seventy-nine, one 2 hundred sixty-seven and one hundred sixty-eight of the internal revenue 3 code with respect to a sport utility vehicle that is not a passenger 4 automobile as defined in paragraph five of subsection (d) of section two 5 hundred eighty-F of the internal revenue code, determined as if such 6 sport utility vehicle were a passenger automobile as defined in such 7 paragraph five. For purposes of paragraph (k) and subparagraph thirteen 8 of paragraph (b) of this subdivision, the terms qualified resurgence 9 zone property and qualified New York Liberty Zone property described in 10 paragraph two of subsection b of section fourteen hundred-L of the 11 internal revenue code shall not include any sport utility vehicle that 12 is not a passenger automobile as defined in paragraph five of subsection 13 (d) of section two hundred eighty-F of the internal revenue code. 14 (p) Upon the disposition of property to which paragraph (o) of this 15 subdivision applies, the amount of any gain or loss includible in entire 16 net income shall be adjusted to reflect the inclusions and exclusions 17 from entire net income pursuant to subparagraph thirteen of paragraph 18 (a) and subparagraph fourteen of paragraph (b) of this subdivision 19 attributable to such property. 20 9. (a) The term "calendar year" means a period of twelve calendar 21 months, or any shorter period beginning on the date the taxpayer becomes 22 subject to the tax imposed by this subchapter, ending on the thirty- 23 first day of December, provided the taxpayer keeps its books on the 24 basis of such period or on the basis of any period ending on any day 25 other than the last day of a calendar month, or provided the taxpayer 26 does not keep books, and includes, in case the taxpayer changes the 27 period on the basis of which it keeps its books from a fiscal year to a 28 calendar year, the period from the close of its last old fiscal year up 29 to and including the following December thirty-first. 30 (b) The term "fiscal year" means a period of twelve calendar months, 31 or any shorter period beginning on the date the taxpayer becomes subject 32 to the tax imposed by this subchapter, ending on the last day of any 33 month other than December, provided the taxpayer keeps its books on the 34 basis of such period, and includes, in case the taxpayer changes the 35 period on the basis of which it keeps its books from a calendar year to 36 a fiscal year or from one fiscal year to another fiscal year, the period 37 from the close of its last old calendar or fiscal year up to the date 38 designated as the close of its new fiscal year. 39 10. The term "tangible personal property" means corporeal personal 40 property, such as machinery, tools, implements, goods, wares and 41 merchandise, and does not mean money, deposits in banks, shares of 42 stock, bonds, notes, credits or evidence of an interest property and 43 evidences of debt. 44 § 11-603 Imposition of tax; exemptions. 1. For the privilege of doing 45 business, or of employing capital, or of owning or leasing property in 46 the city in a corporate or organized capacity, or of maintaining an 47 office in the city, for all or any part of each of its fiscal or calen- 48 dar years, every domestic or foreign corporation, except corporations 49 specified in subdivision four of this section, shall annually pay a tax, 50 upon the basis of its entire net income, or upon such other basis as may 51 be applicable as provided by this section, for such fiscal or calendar 52 year or part thereof, on a report which shall be filed, except as 53 provided by this section, on or before the fifteenth day of March next 54 succeeding the close of each such year, or, in the case of a taxpayer 55 which reports on the basis of a fiscal year, within two and one-halfS. 8474 449 1 months after the close of such fiscal year, and shall be paid as 2 provided by this section. 3 2. A corporation shall not be deemed to be doing business, employing 4 capital, owning or leasing property, or maintaining an office in the 5 city, for the purposes of this subchapter, by reason of (a) the mainte- 6 nance of cash balances with banks or trust companies in the city, or (b) 7 the ownership of shares of stock or securities kept in the city, if kept 8 in a safe deposit box, safe, vault or other receptacle rented for the 9 purpose, or if pledged as collateral security, or if deposited with one 10 or more banks or trust companies, or brokers who are members of a recog- 11 nized security exchange, in safekeeping or custody accounts, or (c) the 12 taking of any action by any such bank or trust company or broker, which 13 is incidental to the rendering of safekeeping or custodian service to 14 such corporation, or (d) the maintenance of an office in the city by one 15 or more officers or directors of the corporation who are not employees 16 of the corporation if the corporation otherwise is not doing business in 17 the city, and does not employ capital or own or lease property in the 18 city, or (e) the keeping of books or records of a corporation in the 19 city if such books or records are not kept by employees of such corpo- 20 ration and such corporation does not otherwise do business, employ capi- 21 tal, own or lease property or maintain an office in the city, or (f) any 22 combination of the activities described in this subdivision. 23 2-a. An alien corporation shall not be deemed to be doing business, 24 employing capital, owning or leasing property, or maintaining an office 25 in the city, for the purposes of this subchapter, if its activities in 26 the city are limited solely to (a) investing or trading in stocks and 27 securities for its own account within the meaning of clause (ii) of 28 subparagraph (A) of paragraph (2) of subsection (b) of section eight 29 hundred sixty-four of the internal revenue code or (b) investing or 30 trading in commodities for its own account within the meaning of clause 31 (ii) of subparagraph (B) of paragraph (2) of subsection (b) of section 32 eight hundred sixty-four of the internal revenue code or (c) any combi- 33 nation of activities described in paragraphs (a) and (b) of this subdi- 34 vision. For purposes of this subdivision, an alien corporation is a 35 corporation organized under the laws of a country, or any political 36 subdivision thereof, other than the United States. 37 3. Any receiver, referee, trustee, assignee or other fiduciary, or 38 any officer or agent appointed by any court, who conducts the business 39 of any corporation, shall be subject to the tax imposed by this subchap- 40 ter in the same manner and to the same extent as if the business were 41 conducted by the agents or officers of such corporation. A dissolved 42 corporation which continues to conduct business shall also be subject to 43 the tax imposed by this subchapter. 44 4. (a) Corporations subject to tax under subchapter three of this 45 chapter or under chapter eleven of this title, any trust company organ- 46 ized under a law of this state all of the stock of which is owned by not 47 less than twenty savings banks organized under a law of this state, bank 48 holding companies filing a combined return in accordance with subdivi- 49 sion (f) of section 11-646 of this chapter, a captive REIT or a captive 50 RIC filing a combined return under subdivision (f) of section 11-646 of 51 this chapter, housing companies organized and operating pursuant to the 52 provisions of article two of the private housing finance law, housing 53 development fund companies organized pursuant to the provisions of arti- 54 cle eleven of the private housing finance law, corporations described in 55 section three of the tax law, a corporation principally engaged in the 56 operation of marine vessels whose activities in the city are limitedS. 8474 450 1 exclusively to the use of property in interstate or foreign commerce, 2 provided, however, such a corporation will not be subject to tax under 3 this subchapter solely because it maintains an office in the city, or 4 employs capital in the city, in connection with such use of property, a 5 corporation principally engaged in the conduct of a ferry business and 6 operating between any of the boroughs of the city under a lease granted 7 by the city and a corporation principally engaged in the conduct of an 8 aviation, steamboat, ferry or navigation business, or two or more of 9 such businesses, all of the capital stock of which is owned by a munici- 10 pal corporation of this state, shall not be subject to tax under this 11 subchapter; provided, however, that any corporation, other than (1) a 12 utility corporation subject to the supervision of the state department 13 of public service, and (2) for taxable years beginning on or after 14 August first, two thousand two, a utility as defined in subdivision six 15 of section 11-1101 of this title, which is subject to tax under chapter 16 eleven of this title as a vendor of utility services shall be subject to 17 tax under this subchapter, but in computing the tax imposed by this 18 section pursuant to the provisions of clause one of subparagraph (a) of 19 paragraph A of subdivision one of section 11-604 of this subchapter, 20 business income allocated to the city pursuant to paragraph (a) of 21 subdivision three of such section shall be reduced by the percentage 22 which such corporation's gross operating income subject to tax under 23 chapter eleven of this title is of its gross operating income. 24 (b) The term "gross operating income", when used in paragraph (a) of 25 this subdivision, means receipts received in or by reason of any trans- 26 action had and consummated in the city, including cash, credits and 27 property of any kind or nature, whether or not such transaction is made 28 for profit, without any deduction therefrom on account of the cost of 29 the property sold, the cost of materials used, labor or other services, 30 delivery costs or any other costs whatsoever, interest or discount paid 31 or any other expenses whatsoever. 32 (c) If it shall appear to the commissioner of finance that the appli- 33 cation of the proviso of paragraph (a) of this subdivision, does not 34 fairly and equitably reflect the portion of the taxpayer's business 35 income allocable to the city which is attributable to its city activ- 36 ities which are not taxable under chapter eleven of this title, the 37 commissioner may prescribe other means or methods of determining such 38 portion, including the use of the books and records of the taxpayer, if 39 the commissioner finds that such means or methods used in keeping them 40 fairly and equitably reflect such portion. 41 5. The tax imposed by subdivision one of this section, with the 42 modifications provided by subdivision six of this section, is imposed 43 for each calendar or fiscal year beginning with calendar or fiscal years 44 ending in or with the calendar year nineteen hundred sixty-six. 45 6. (a) The tax for any taxable year ending prior to December thirty- 46 first, nineteen hundred sixty-six shall be an amount equal to the tax 47 imposed by subdivision one of this section for such taxable year, multi- 48 plied by the number of months, or major portions thereof, in such taxa- 49 ble year which occur after December thirty-first, nineteen hundred 50 sixty-five and divided by the number of months, or major portions there- 51 of, in such taxable year. 52 (b) In lieu of the method of computation of tax prescribed in para- 53 graph (a) of this subdivision, if the taxpayer maintained adequate 54 records for the portion of any taxable year ending prior to December 55 thirty-first, nineteen hundred sixty-six, which portion falls within the 56 calendar year nineteen hundred sixty-six, it may elect to compute theS. 8474 451 1 tax for such taxable year by determining entire net income on the basis 2 of the entire taxable income which it would have reported for federal 3 income tax purposes had it filed a federal income tax return for a taxa- 4 ble year beginning January first, nineteen hundred sixty-six and ending 5 with the close of its actual taxable year and such taxable year begin- 6 ning January first, nineteen hundred sixty-six, shall be deemed to be 7 the period covered by its report, except that in computing such tax any 8 portion of a capital loss which results from a capital loss carryover 9 and any net operating loss deduction, as modified pursuant to paragraph 10 (f) of subdivision eight of section 11-602 of this subchapter, shall be 11 reduced by the same part of such portion of such capital loss or of such 12 net operating loss deduction, as the case may be, as the number of 13 months, or major portions thereof, in the taxable year occurring before 14 January first, nineteen hundred sixty-six is of the number of months, or 15 major portions thereof, in such taxable year. 16 7. For any taxable year of a real estate investment trust as defined 17 in section eight hundred fifty-six of the internal revenue code in which 18 such trust is subject to federal income taxation under section eight 19 hundred fifty-seven of such code, such trust shall be subject to a tax 20 computed under either clause one of subparagraph (a) of paragraph A of 21 subdivision one of section 11-604 of this subchapter with respect to its 22 entire net income, or clause four of such subparagraph, whichever is 23 greater, and shall not be subject to any tax under subchapter three of 24 this chapter, except for a captive REIT required to file a combined 25 return under subdivision (f) of section 11-646 of this chapter. In the 26 case of such a real estate investment trust, including a captive REIT as 27 defined in section 11-601 of this chapter, the term "entire net income" 28 means "real estate investment trust taxable income" as defined in para- 29 graph two of subdivision (b) of section eight hundred fifty-seven, as 30 modified by section eight hundred fifty-eight, of the internal revenue 31 code plus the amount taxable under paragraph three of subdivision (b) of 32 section eight hundred fifty-seven of such code, subject to the modifica- 33 tion required by subdivision eight of section 11-602 of this subchapter, 34 other than the modification required by clause two of paragraph (a) and 35 by paragraph (f) thereof, including the modifications required by para- 36 graphs (d) and (e) of subdivision three of section 11-604 of this 37 subchapter. 38 8. For any taxable year beginning on or after January first, nineteen 39 hundred eighty-one of a regulated investment company, as defined in 40 section eight hundred fifty-one of the internal revenue code, in which 41 such company is subject to federal income taxation under section eight 42 hundred fifty-two of such code, such company shall be subject to a tax 43 computed under clause one or four of subparagraph (a) of paragraph E of 44 subdivision one of section 11-604 of this subchapter, whichever is 45 greater, and such company shall not be subject to any tax under subchap- 46 ter three of this chapter. The term "entire net income" used in subdivi- 47 sion one of this section means "investment company taxable income" as 48 defined in paragraph two of subdivision (b) of section eight hundred 49 fifty-two, as modified by section eight hundred fifty-five, of the 50 internal revenue code plus the amount taxable under paragraph three of 51 subdivision (b) of section eight hundred fifty-two of such code subject 52 to the modifications required by subdivision eight of section 11-602 of 53 this subchapter, other than the modification required by clause two of 54 paragraph (a) and by paragraph (f) of such subdivision, including the 55 modification required by paragraphs (d) and (e) of subdivision three of 56 section 11-604 of this subchapter.S. 8474 452 1 9. For any taxable year beginning on or after January first, nineteen 2 hundred eighty-seven, an organization described in paragraph two or 3 twenty-five of subdivision (c) of section five hundred one of the inter- 4 nal revenue code of nineteen hundred eighty-six shall be exempt from all 5 taxes imposed by this chapter. 6 § 11-604 Computation of tax. 1. A. For taxable years beginning on or 7 after January first, nineteen hundred seventy-one and ending on or 8 before December thirty-first, nineteen hundred seventy-four, and for 9 taxable years beginning on or after January first, nineteen hundred 10 seventy-six, the tax imposed by subdivision one of section 11-603 of 11 this subchapter shall be, in the case of each taxpayer: (a) a tax (1) 12 computed at the rate of six and seven-tenths per centum of its entire 13 net income, or the portion of such entire net income allocated within 14 the city as provided in this section, subject to any modification 15 required by paragraphs (d) and (e) of subdivision three of this section, 16 or (2) computed at one mill for each dollar of its total business and 17 investment capital, or the portion thereof allocated within the city, as 18 provided in this section, except that in the case of a cooperative hous- 19 ing corporation as defined in the internal revenue code, or in the case 20 of a housing company organized and operating pursuant to the provisions 21 of article four of the private housing finance law, the applicable rates 22 shall be one-quarter of one mill, or (3) computed at the rate of six and 23 seven-tenths per centum on thirty per centum of the taxpayer's entire 24 net income plus salaries and other compensation paid to the taxpayer's 25 elected or appointed officers and to every stockholder owning in excess 26 of five per centum of its issued capital stock minus fifteen thousand 27 dollars, except as provided in this section, and any net loss for the 28 reported year, or on the portion of any such sum allocated within the 29 city as provided in this section for the allocation of entire net 30 income, subject to any modification required by paragraphs (d) and (e) 31 of subdivision three of this section, or (4) twenty-five dollars, which- 32 ever is greatest, plus (b) a tax computed at the rate of one-half mill 33 for each dollar of the portion of its subsidiary capital allocated with- 34 in the city as provided in this section. In the case of a taxpayer 35 which is not subject to tax for an entire year, the exemption allowed in 36 clause three of subparagraph (a) of this paragraph shall be prorated 37 according to the period such taxpayer was subject to tax. 38 B. For taxable years beginning on or after January first, nineteen 39 hundred seventy-five and before January first nineteen hundred seventy- 40 seven, the tax imposed by subdivision one of section 11-603 of this 41 subchapter shall be, in the case of each taxpayer: (a) a tax (1) 42 computed at the rate of ten and five one-hundredths per centum of its 43 entire net income, or the portion of such entire net income allocated 44 within the city as provided in this paragraph, subject to any modifica- 45 tion required by paragraphs (d) and (e) of subdivision three of this 46 section, or (2) computed at one and one-half mills for each dollar of 47 its total business and investment capital, or the portion thereof allo- 48 cated within the city, as provided in this paragraph, except that in the 49 case of a cooperative housing corporation as defined in the internal 50 revenue code, or in the case of a housing company organized and operat- 51 ing pursuant to the provisions of article four of the private housing 52 finance law, the applicable rate shall be four-tenths of one mill, or 53 (3) computed at the rate of ten and five one-hundredths per centum on 54 thirty per centum of the taxpayer's entire net income plus salaries and 55 other compensation paid to the taxpayer's elected or appointed officers 56 and to every stockholder owning in excess of five per centum of itsS. 8474 453 1 issued capital stock minus fifteen thousand dollars, except as provided 2 in this paragraph, and any net loss for the reported year, or on the 3 portion of any such sum allocated within the city as provided in this 4 paragraph for the allocation of entire net income, subject to any 5 modification required by paragraphs (d) and (e) of subdivision three of 6 this section, or (4) one hundred twenty-five dollars, whichever is 7 greatest, plus (b) a tax computed at the rate of three-quarters of a 8 mill for each dollar of the portion of its subsidiary capital allocated 9 within the city as provided in this paragraph. In the case of a taxpay- 10 er which is not subject to tax for an entire year, the exemption allowed 11 in clause three of subparagraph (a) of this paragraph shall be prorated 12 according to the period such taxpayer was subject to tax. 13 C. For each taxable year beginning in nineteen hundred seventy-four 14 and ending in nineteen hundred seventy-five, two tentative taxes shall 15 be computed, the first as provided in paragraph A and the second as 16 provided in paragraph B of this subdivision, and the tax for each such 17 year shall be the sum of that proportion of each tentative tax which the 18 number of days in nineteen hundred seventy-four and the number of days 19 in nineteen hundred seventy-five, respectively, bears to the number of 20 days in the entire taxable year. 21 D. For taxable years beginning on or after January first, nineteen 22 hundred seventy-seven and before January first, nineteen hundred seven- 23 ty-eight, the tax imposed by subdivision one of section 11-603 of this 24 subchapter shall be, in the case of each taxpayer: (a) a tax (1) 25 computed at the rate of nine and one-half per centum of its entire net 26 income, or the portion of such entire net income allocated within the 27 city as provided in this paragraph, subject to any modification required 28 by paragraphs (d) and (e) of subdivision three of this section, or (2) 29 computed at one and one-half mills for each dollar of its total business 30 and investment capital, or the portion thereof allocated within the 31 city, as provided in this paragraph, except that in the case of a coop- 32 erative housing corporation as defined in the internal revenue code, the 33 applicable rate shall be four-tenths of one mill, or (3) computed at the 34 rate of nine and one-half per centum on thirty per centum of the taxpay- 35 er's entire net income plus salaries and other compensation paid to the 36 taxpayer's elected or appointed officers and to every stockholder owning 37 in excess of five per centum of its issued capital stock minus fifteen 38 thousand dollars, except as provided in this paragraph, and any net loss 39 for the reported year, or on the portion of any such sum allocated with- 40 in the city as provided in this paragraph for the allocation of entire 41 net income, subject to any modification required by paragraphs (d) and 42 (e) of subdivision three of this section, or (4) one hundred twenty-five 43 dollars, whichever is greatest, plus (b) a tax computed at the rate of 44 three-quarters of a mill for each dollar of the portion of its subsid- 45 iary capital allocated within the city as provided in this paragraph. In 46 the case of a taxpayer which is not subject to tax for an entire year, 47 the exemption allowed in clause three of subparagraph (a) of this para- 48 graph shall be prorated according to the period such taxpayer was 49 subject to tax. 50 E. For taxable years beginning on or after January first, nineteen 51 hundred seventy-eight but before January first, two thousand twenty-sev- 52 en, the tax imposed by subdivision one of section 11-603 of this 53 subchapter shall be, in the case of each taxpayer: 54 (a) whichever of the following amounts is the greatest: 55 (1) an amount computed, for taxable years beginning before nineteen 56 hundred eighty-seven, at the rate of nine per centum, and for taxableS. 8474 454 1 years beginning after nineteen hundred eighty-six, at the rate of eight 2 and eighty-five one-hundredths per centum, of its entire net income or 3 the portion of such entire net income allocated within the city as 4 provided in this paragraph, subject to any modification required by 5 paragraphs (d) and (e) of subdivision three of this section, 6 (2) an amount computed at one and one-half mills for each dollar of 7 its total business and investment capital, or the portion thereof allo- 8 cated within the city, as provided in this paragraph, except that in the 9 case of a cooperative housing corporation as defined in the internal 10 revenue code, the applicable rate shall be four-tenths of one mill, 11 (3) an amount computed, for taxable years beginning before nineteen 12 hundred eighty-seven, at the rate of nine per centum, and for taxable 13 years beginning after nineteen hundred eighty-six, at the rate of eight 14 and eighty-five one-hundredths per centum, on thirty per centum of the 15 taxpayer's entire net income plus salaries and other compensation paid 16 to the taxpayer's elected or appointed officers and to every stockholder 17 owning in excess of five per centum of its issued capital stock minus 18 fifteen thousand dollars, subject to proration as provided in this para- 19 graph, and any net loss for the reported year, or on the portion of any 20 such sum allocated within the city as provided in this paragraph for the 21 allocation of entire net income, subject to any modification required by 22 paragraphs (d) and (e) of subdivision three of this section, provided, 23 however, that for taxable years beginning on or after July first, nine- 24 teen hundred ninety-six, the provisions of paragraph H of this subdivi- 25 sion shall apply for purposes of the computation under this clause, or 26 (4) for taxable years ending on or before June thirtieth, nineteen 27 hundred eighty-nine, one hundred twenty-five dollars, for taxable years 28 ending after June thirtieth, nineteen hundred eighty-nine and beginning 29 before two thousand nine, three hundred dollars, and for taxable years 30 beginning after two thousand eight: 31 If city Fixed dollar 32 receipts are: minimum tax is: 33 Not more than $100,000 $25 34 More than $100,000 but not over $250,000 $75 35 More than $250,000 but not over $500,000 $175 36 More than $500,000 but not over $1,000,000 $500 37 More than $1,000,000 but not over $5,000,000 $1,500 38 More than $5,000,000 but not over $25,000,000 $3,500 39 Over $25,000,000 $5,000 40 For purposes of this clause, city receipts are the receipts computed in 41 accordance with subparagraph two of paragraph (a) of subdivision three 42 of this section for the taxable year. For taxable years beginning after 43 two thousand eight, if the taxable year is less than twelve months, 44 the amount prescribed by this clause shall be reduced by twenty-five 45 percent if the period for which the taxpayer is subject to tax is more 46 than six months but not more than nine months and by fifty percent if 47 the period for which the taxpayer is subject to tax is not more than six 48 months. If the taxable year is less than twelve months, the amount of 49 city receipts for purposes of this clause is determined by divid- 50 ing the amount of the receipts for the taxable year by the number of 51 months in the taxable year and multiplying the result by twelve plus;S. 8474 455 1 (b) an amount computed at the rate of three-quarters of a mill for 2 each dollar of the portion of its subsidiary capital allocated within 3 the city as provided in this paragraph. 4 In the case of a taxpayer which is not subject to tax for an entire 5 year, the exemption allowed in clause three of subparagraph (a) of this 6 paragraph shall be prorated according to the period such taxpayer was 7 subject to tax. Provided, however, that this paragraph shall not apply 8 to taxable years beginning after December thirty-first, two thousand 9 twenty-six. For the taxable years specified in this subparagraph, the 10 tax imposed by subdivision one of section 11-603 of this subchapter 11 shall be, in the case of each taxpayer, determined as specified in para- 12 graph A of this subdivision, provided, however, that the provisions of 13 paragraphs G and H of this subdivision shall apply for purposes of the 14 computation under clause three of subparagraph (a) of such paragraph. 15 F. Notwithstanding any other provision of this subdivision to the 16 contrary, for taxable years beginning after nineteen hundred eighty-sev- 17 en and before two thousand nine the amount of tax computed on the basis 18 of the taxpayer's total business and investment capital, or the portion 19 thereof allocated within the city, shall in no event exceed three 20 hundred fifty thousand dollars and for taxable years beginning after two 21 thousand eight the amount of tax computed on the basis of the taxpayer's 22 total business and investment capital, or the portion thereof allocated 23 within the city, shall in no event exceed one million dollars. 24 G. In the case of a foreign air carrier described in subparagraph one 25 of paragraph (c-1) of subdivision eight of section 11-602 of this 26 subchapter, there shall be excluded from the computation of the tax 27 under clause three of subparagraph (a) of paragraph E of this subdivi- 28 sion salaries and other compensation described therein which are direct- 29 ly attributable to the generation of income excluded from entire net 30 income for the taxable year pursuant to the provisions of paragraph 31 (c-1) of subdivision eight of section 11-602 of this subchapter. 32 H. For taxable years beginning on or after July first, nineteen 33 hundred ninety-six, the computation under clause three of subparagraph 34 (a) of paragraph E of this subdivision shall be subject to the following 35 modifications: 36 (a) (1) For taxable years beginning on or after July first, nineteen 37 hundred ninety-six but before July first, nineteen hundred ninety-eight, 38 only seventy-five percent of the total salaries and other compensation 39 paid to the taxpayer's elected or appointed officers shall be added to 40 the entire net income entering into such computation; for taxable years 41 beginning on or after July first, nineteen hundred ninety-eight but 42 before July first, nineteen hundred ninety-nine, only fifty percent of 43 such salaries and other compensation shall be added to such entire net 44 income; and for taxable years beginning on or after July first, nineteen 45 hundred ninety-nine, no part of such salaries and other compensation 46 shall be added to such entire net income. 47 (2) Notwithstanding anything in clause one of this subparagraph to the 48 contrary, the full amount of the salary or other compensation paid to 49 any such elected or appointed officer shall be added to entire net 50 income as provided in clause three of subparagraph (a) of paragraph E of 51 this subdivision if such officer was, at any time during the taxable 52 year, a stockholder owning more than five percent of taxpayer's issued 53 capital stock. 54 (b) For taxable years beginning on or after July first, nineteen 55 hundred ninety-seven but before July first, nineteen hundred ninety- 56 eight, the fixed dollar amount entering into the computation underS. 8474 456 1 clause three of subparagraph (a) of paragraph E of this subdivision 2 shall be thirty thousand dollars instead of fifteen thousand dollars; 3 and for taxable years beginning on or after July first, nineteen hundred 4 ninety-eight, such fixed dollar amount shall be forty thousand dollars. 5 (c) For taxable years beginning on or after January first, two thou- 6 sand seven and before January first, two thousand eight the per centum 7 entering into the computation under clause three of subparagraph (a) of 8 paragraph E of this subdivision shall be twenty-six and one-fourth per 9 centum instead of thirty per centum, for taxable years beginning on or 10 after January first, two thousand eight and before January first, two 11 thousand nine such per centum shall be twenty-two and one-half per 12 centum, for taxable years beginning on or after January first, two thou- 13 sand nine and before January first, two thousand ten such per centum 14 shall be eighteen and three-fourths per centum and for taxable years 15 beginning on or after January first, two thousand ten such per centum 16 shall be fifteen per centum. 17 I. Notwithstanding any provision of this subdivision to the contrary, 18 for taxable years beginning on or after January first, two thousand 19 seven for any corporation that: 20 (a) has a business allocation percentage for the taxable year, as 21 determined under paragraph (a) of subdivision three of this section, of 22 one hundred percent; 23 (b) has no investment capital or income at any time during the taxable 24 year; 25 (c) has no subsidiary capital or income at any time during the taxable 26 year; and 27 (d) has gross income, as defined in section sixty-one of the internal 28 revenue code, less than two hundred fifty thousand dollars for the taxa- 29 ble year: 30 the tax imposed by subdivision one of section 11-603 of this subchap- 31 ter shall be the greater of the tax on entire net income computed under 32 clause one of subparagraph (a) of paragraph E of this subdivision and 33 the fixed dollar minimum tax specified in clause four of subparagraph 34 (a) of paragraph E of this subdivision. 35 For purposes of this paragraph, for taxable years beginning before 36 January first, two thousand fifteen, any corporation for which an 37 election under subsection (a) of section six hundred sixty of the tax 38 law is not in effect for the taxable year may elect to treat as entire 39 net income the sum of: 40 (i) entire net income as determined under section two hundred eight of 41 the tax law; and 42 (ii) any deductions taken for the taxable year in computing federal 43 taxable income for Staten Island city taxes paid or accrued under this 44 chapter. 45 2. The amount of subsidiary capital, investment capital and business 46 capital shall each be determined by taking the average value of the 47 gross assets included therein, less liabilities deductible therefrom 48 pursuant to the provisions of subdivisions three, four and six of 49 section 11-602 of this subchapter, and, if the period covered by the 50 report is other than a period of twelve calendar months, by multiplying 51 such value by the number of calendar months or major parts thereof 52 included in such period, and dividing the product thus obtained by 53 twelve. For purposes of this subdivision, real property and marketable 54 securities shall be valued at fair market value and the value of 55 personal property other than marketable securities shall be the valueS. 8474 457 1 thereof shown on the books and records of the taxpayer in accordance 2 with generally accepted accounting principles. 3 3. The portion of the entire net income of a taxpayer to be allocated 4 within the city shall be determined as follows: 5 (a) multiply its business income by a business allocation percentage 6 to be determined by: 7 (1) ascertaining the percentage which the average value of the taxpay- 8 er's real and tangible personal property, whether owned or rented to it, 9 within the city during the period covered by its report bears to the 10 average value of all the taxpayer's real and tangible personal property, 11 whether owned or rented to it, wherever situated during such period. For 12 the purpose of this subparagraph, the term "value of the taxpayer's real 13 and tangible personal property" shall mean the adjusted bases of such 14 properties for federal income tax purposes, except that in the case of 15 rented property such value shall mean the product of (A) eight and (B) 16 the gross rents payable for the rental of such property during the taxa- 17 ble year; provided, however, that the taxpayer may make a one-time, 18 revocable election, pursuant to regulations promulgated by the commis- 19 sioner of finance to use fair market value as the value of all of its 20 real and tangible personal property, provided that such election is made 21 on or before the due date for filing a report under section 11-605 of 22 this subchapter for the taxpayer's first taxable year commencing on or 23 after January first, nineteen hundred eighty-eight and provided that 24 such election shall not apply to any taxable year with respect to which 25 the taxpayer is included on a combined report unless each of the taxpay- 26 ers included on such report has made such an election which remains in 27 effect for such year; 28 (2) ascertaining the percentage which the receipts of the taxpayer, 29 computed on the cash or accrual basis according to the method of 30 accounting used in the computation of its entire net income, arising 31 during such period from: 32 (A) except as otherwise provided in subparagraph nine of this para- 33 graph, sales of its tangible personal property where shipments are made 34 to points within the city; 35 (B) services performed within the city, provided, however, that (i) in 36 the case of a taxpayer engaged in the business of publishing newspapers 37 or periodicals, receipts arising from sales of advertising contained in 38 such newspapers and periodicals shall be deemed to arise from services 39 performed within the city to the extent that such newspapers and period- 40 icals are delivered to points within the city, (ii) receipts received 41 from an investment company arising from the sale of management, adminis- 42 tration or distribution services to such investment company shall be 43 deemed to arise from services performed within the city to the extent 44 set forth in subparagraph five of this paragraph, (iii) in the case of 45 taxpayers principally engaged in the activity of air freight forwarding 46 acting as principal and like indirect air carriage, receipts arising 47 from such activity shall be deemed to arise from services performed 48 within the city as follows: one hundred percent of such receipts if both 49 the pickup and delivery associated with such receipts are made in the 50 city and fifty percent of such receipts if either the pickup or delivery 51 associated with such receipts is made in the city, (iv) for taxable 52 years beginning on or after January first, two thousand two, in the case 53 of a taxpayer engaged in the business of publishing newspapers or peri- 54 odicals, or broadcasting radio or television programs, whether through 55 the public airwaves or by cable, direct or indirect satellite trans- 56 mission, or any other means of transmission, receipts arising from salesS. 8474 458 1 of subscriptions, advertising or broadcasting shall be deemed to arise 2 from services performed within the city to the extent provided in 3 subparagraph nine of this paragraph, and (v) for taxable years beginning 4 after two thousand eight, in the case of a taxpayer which is a regis- 5 tered securities or commodities broker or dealer, the receipts specified 6 in subparagraph ten of this paragraph shall be deemed to arise from 7 services performed within the city to the extent set forth in such 8 subparagraph ten; 9 (C) rentals from property situated and royalties from the use of 10 patents or copyrights, within the city; 11 (D) all other business receipts earned within the city, bear to the 12 total amount of the taxpayer's receipts, similarly computed, arising 13 during such period from all sales of its tangible personal property, 14 services, rentals, royalties and all other business transactions, wheth- 15 er within or without the city; and 16 (E) notwithstanding any other provision of this paragraph, net global 17 intangible low-taxed income shall be included in the receipts fraction 18 as provided in this clause. Receipts constituting net global intangible 19 low-taxed income shall not be included in the numerator of the receipts 20 fraction. Receipts constituting net global intangible low-taxed income 21 shall be included in the denominator of the receipts fraction. For 22 purposes of this clause, the term "net global intangible low-taxed 23 income" means the amount that would have been required to be included in 24 the taxpayer's federal gross income pursuant to subsection (a) of 25 section nine hundred fifty-one-A of the internal revenue code less the 26 amount of the deduction that would have been allowed under clause (i) of 27 subparagraph (B) of paragraph one of subdivision (a) of section two 28 hundred fifty of such code if the taxpayer had not made an election 29 under subchapter s of chapter one of the internal revenue code; 30 (3) ascertaining the percentage of the total wages, salaries and other 31 personal service compensation, similarly computed, during such period of 32 employees within the city, except general executive officers, to the 33 total wages, salaries and other personal service compensation, similarly 34 computed, during such period of all the taxpayer's employees within and 35 without the city, except general executive officers; and 36 (4) adding together the percentages so determined and dividing the 37 result by the number of percentages; provided, however, that for taxable 38 years beginning on or after July first, nineteen hundred ninety-six, a 39 taxpayer that is a "manufacturing corporation," as defined in subpara- 40 graph eight of this paragraph, may determine its business allocation 41 percentage as provided in such subparagraph eight; and provided, 42 further, however, that for taxable years beginning before July first, 43 nineteen hundred ninety-six, if the taxpayer does not have a regular 44 place of business outside the city other than a statutory office, the 45 business allocation percentage shall be one hundred per centum. 46 (5) Rules for receipts from certain services to investment companies. 47 (A) For purposes of subclause (ii) of clause (B) of subparagraph two of 48 this paragraph, the portion of receipts received from an investment 49 company arising from the sale of management, administration or distrib- 50 ution services to such investment company determined in accordance with 51 clause (B) of this subparagraph shall be deemed to arise from services 52 performed within the city, such portion referred to as the Staten Island 53 city portion. 54 (B) The Staten Island city portion shall be the product of (a) the 55 total of such receipts from the sale of such services and (b) a frac- 56 tion. The numerator of that fraction is the sum of the monthly percent-S. 8474 459 1 ages, as defined, determined for each month of the investment company's 2 taxable year for federal income tax purposes which taxable year ends 3 within the taxable year of the taxpayer, but excluding any month during 4 which the investment company had no outstanding shares. The monthly 5 percentage for each such month is determined by dividing (a) the number 6 of shares in the investment company which are owned on the last day of 7 the month by shareholders which are domiciled in the city by (b) the 8 total number of shares in the investment company outstanding on that 9 date. The denominator of the fraction is the number of such monthly 10 percentages. 11 (C) (i) For purposes of this subparagraph, the term "domicile", in the 12 case of an individual, shall have the meaning ascribed to it under chap- 13 ter seventeen of this title; an estate or trust is domiciled in the city 14 if it is a city resident estate or trust as defined in paragraph three 15 of subdivision (b) of section 11-1705 of the code of the preceding muni- 16 cipality; a business entity is domiciled in the city if the location of 17 the actual seat of management or control is in the city. It shall be 18 presumed that the domicile of a shareholder, with respect to any month, 19 is his, her or its mailing address on the records of the investment 20 company as of the last day of such month. 21 (ii) For purposes of this subparagraph, the term "investment company" 22 means a regulated investment company, as defined in section eight 23 hundred fifty-one of the internal revenue code, and a partnership to 24 which subdivision (a) of section seven thousand seven hundred four of 25 the internal revenue code applies, by virtue of paragraph three of 26 subdivision (c) of section seven thousand seven hundred four of such 27 code, and that meets the requirements of subdivision (b) of section 28 eight hundred fifty-one of such code. The provisions of this subpara- 29 graph shall be applied to the taxable year for federal income tax 30 purposes of the business entity that is asserted to constitute an 31 investment company that ends within the taxable year of the taxpayer. 32 (iii) For purposes of this subparagraph, the term "receipts from an 33 investment company" includes amounts received directly from an invest- 34 ment company as well as amounts received from the shareholders in such 35 investment company in their capacity as such. 36 (iv) For purposes of this subparagraph, the term "management services" 37 means the rendering of investment advice to an investment company, 38 making determinations as to when sales and purchases of securities are 39 to be made on behalf of an investment company, or the selling or 40 purchasing of securities constituting assets of an investment company, 41 and related activities, but only where such activity or activities are 42 performed pursuant to a contract with the investment company entered 43 into pursuant to subdivision (a) of section fifteen of the federal 44 investment company act of nineteen hundred forty, as amended. 45 (v) For purposes of this subparagraph, the term "distribution 46 services" means the services of advertising, servicing investor 47 accounts, including redemptions, marketing shares or selling shares of 48 an investment company, but, in the case of advertising, servicing inves- 49 tor accounts, including redemptions, or marketing shares, only where 50 such service is performed by a person who is, or was, in the case of a 51 closed end company, also engaged in the service of selling such shares. 52 In the case of an open end company, such service of selling shares must 53 be performed pursuant to a contract entered into pursuant to subdivision 54 (b) of section fifteen of the federal investment company act of nineteen 55 hundred forty, as amended.S. 8474 460 1 (vi) For purposes of this subparagraph, the term "administration 2 services" includes (1) clerical, accounting, bookkeeping, data process- 3 ing, internal auditing, legal and tax services performed for an invest- 4 ment company but only (2) if the provider of such service or services 5 during the taxable year in which such service or services are sold also 6 sells management or distribution services, as defined in this paragraph, 7 to such investment company. 8 (6) (A) Provided, further, however, that a taxpayer principally 9 engaged in the conduct of aviation, other than as provided in clause (C) 10 of this subparagraph, shall, notwithstanding subparagraphs one through 11 five of this paragraph, determine the portion of entire net income to be 12 allocated within the city by multiplying its business income by a busi- 13 ness allocation percentage which is equal to the arithmetic average of 14 the following three percentages: 15 (i) the percentage determined by dividing aircraft arrivals and depar- 16 tures within the city by the taxpayer during the period covered by its 17 report by the total aircraft arrivals and departures within and without 18 the city during such period; provided, however, arrivals and departures 19 solely for maintenance or repair, refueling, where no debarkation or 20 embarkation of traffic occurs, arrivals and departures of ferry and 21 personnel training flights or arrivals and departures in the event of 22 emergency situations shall not be included in computing such arrival and 23 departure percentage; provided, further, the commissioner of finance may 24 also exempt from such percentage aircraft arrivals and departures of all 25 non-revenue flights including flights involving the transportation of 26 officers or employees receiving air transportation to perform mainte- 27 nance or repair services or where such officers or employees are trans- 28 ported in conjunction with an emergency situation or the investigation 29 of an air disaster, other than on a scheduled flight; provided, however, 30 that arrivals and departures of flights transporting officers and 31 employees receiving air transportation for purposes other than specified 32 above, without regard to remuneration, shall be included in computing 33 such arrival and departure percentage; 34 (ii) the percentage determined by dividing the revenue tons handled by 35 the taxpayer at airports within the city during such period by the total 36 revenue tons handled by it at airports within and without the city 37 during such period; and 38 (iii) the percentage determined by dividing the taxpayer's originating 39 revenue within the city for such period by its total originating revenue 40 within and without the city for such period. 41 (B) As used herein, the term "aircraft arrivals and departures" means 42 the number of landings and takeoffs of the aircraft of the taxpayer and 43 the number of air pickups and deliveries by the aircraft of such taxpay- 44 er; the term "originating revenue" means revenue to the taxpayer from 45 the transportation of revenue passengers and revenue property first 46 received by the taxpayer either as originating or connecting traffic at 47 airports; and the term "revenue tons handled" by the taxpayer at 48 airports means the weight in tons of revenue passengers, at two hundred 49 pounds per passenger, and revenue cargo first received either as origi- 50 nating or connecting traffic or finally discharged by the taxpayer at 51 airports; 52 (C) A foreign air carrier described in subparagraph one of paragraph 53 (c-1) of subdivision eight of section 11-602 of this subchapter shall 54 determine its business allocation percentage pursuant to the provisions 55 of subparagraphs one through four of this paragraph, except that the 56 numerators and denominators involved in such computation shall excludeS. 8474 461 1 property to the extent employed in generating income excluded from 2 entire net income pursuant to the provisions of paragraph (c-1) of 3 subdivision eight of section 11-602 of this subchapter, exclude such 4 receipts as are excluded from entire net income for the taxable year 5 pursuant to the provisions of paragraph (c-1) of subdivision eight of 6 section 11-602 of this subchapter, and exclude wages, salaries or other 7 personal service compensation which are directly attributable to the 8 generation of income excluded from entire net income for the taxable 9 year pursuant to the provisions of paragraph (c-1) of subdivision eight 10 of section 11-602 of this subchapter. 11 (7) Provided, further, however, that a taxpayer principally engaged in 12 the operation of vessels shall, notwithstanding subparagraphs one 13 through six of this paragraph, determine the portion of entire net 14 income to be allocated within the city by multiplying its business 15 income by a business allocation percentage determined by dividing the 16 aggregate number of working days of the vessels it owns or leases in 17 territorial waters of the city during the period covered by its report 18 by the aggregate number of working days of all the vessels it owns or 19 leases during such period. 20 (8) (A) For taxable years beginning on or after July first, nineteen 21 hundred ninety-six and before January first, two thousand eleven, a 22 manufacturing corporation may elect to determine its business allocation 23 percentage by adding together the percentages determined under subpara- 24 graphs one, two and three of this paragraph and an additional percentage 25 equal to the percentage determined under subparagraph two of this para- 26 graph, and dividing the result by the number of percentages so added 27 together. 28 (B) An election under this subparagraph must be made on a timely 29 filed, determined with regard to extensions granted, original report for 30 the taxable year. Once made for a taxable year, such election shall be 31 irrevocable for that taxable year. A separate election must be made for 32 each taxable year. A manufacturing corporation that has failed to make 33 an election as provided in this clause shall be required to determine 34 its business allocation percentage without regard to the provisions of 35 this subparagraph. Notwithstanding anything in this clause to the 36 contrary, the commissioner of finance may permit a manufacturing corpo- 37 ration to make or revoke an election under this subparagraph, upon such 38 terms and conditions as the commissioner may prescribe, where the 39 commissioner determines that such permission should be granted in the 40 interests of fairness and equity due to a change in circumstances 41 resulting from an audit adjustment. 42 (C) As used in this subparagraph, the term "manufacturing corporation" 43 means a corporation primarily engaged in the manufacturing and sale 44 thereof of tangible personal property; and the term "manufacturing" 45 includes the process, including the assembly process, (i) of working raw 46 materials into wares suitable for use or (ii) which gives new shapes, 47 new qualities or new combinations to matter which already has gone 48 through some artificial process, by the use of machinery, tools, appli- 49 ances and other similar equipment. A corporation shall be deemed to be 50 primarily engaged in the activities described in the provisions of this 51 subparagraph if more than fifty percent of its gross receipts for the 52 taxable year are attributable to such activities. 53 (D) Notwithstanding anything to the contrary, if a taxpayer that is 54 otherwise eligible to make the election authorized by this subparagraph 55 is required or permitted to make a report on a combined basis with one 56 or more other corporations pursuant to subdivision four of sectionS. 8474 462 1 11-605 of this chapter, the taxpayer shall be permitted to make an 2 election under this subparagraph only if such taxpayer and such other 3 corporation or corporations would be a manufacturing corporation if they 4 were treated as a single corporation. In making such determination, 5 intercorporate transactions shall be eliminated. Where such election has 6 been made by the taxpayer for a taxable year, each of the other corpo- 7 rations included in the combined report shall also be deemed to have 8 made a proper election under this subparagraph for such taxable year. 9 (9) Special rules for publishers and broadcasters. (A) Notwithstanding 10 anything in subparagraph two of this paragraph to the contrary and 11 except as provided in clause (C) of this subparagraph, in the case of a 12 taxpayer engaged in the business of publishing newspapers or period- 13 icals, there shall be allocated to the city, for purposes of subpara- 14 graph two of this paragraph, the gross sales or charges for services 15 arising from sales of advertising contained in such newspapers or peri- 16 odicals, to the extent that such newspapers or periodicals are delivered 17 to points within the city. 18 (B) Notwithstanding anything in subparagraph two of this paragraph to 19 the contrary and except as provided in clause (C) of this subparagraph, 20 in the case of a taxpayer engaged in the business of broadcasting radio 21 or television programs, whether through the public airwaves or by cable, 22 direct or indirect satellite transmission, or any other means of trans- 23 mission, there shall be allocated to the city, for purposes of subpara- 24 graph two of this paragraph, a portion of the gross sales or charges for 25 services arising from the broadcasting of such programs and of commer- 26 cial messages in connection therewith, such portion to be determined 27 according to the number of listeners or viewers within and without the 28 city. 29 (C) Notwithstanding anything in clause (A) or (B) of this subparagraph 30 to the contrary, in the case of a taxpayer engaged in the business of 31 publishing newspapers or periodicals, or broadcasting radio or tele- 32 vision programs, whether through the public airwaves or by cable, direct 33 or indirect satellite transmission, or any other means of transmission, 34 there shall be allocated to the city, for purposes of subparagraph two 35 of this paragraph, the gross sales or charges to subscribers located in 36 the city for subscriptions to such newspapers, periodicals, or program 37 services. For purposes of this clause, a subscriber shall be deemed 38 located in the city if, in the case of newspapers and periodicals, the 39 mailing address for the subscription is within the city and, in the case 40 of program services, the billing address for the subscription is within 41 the city. For purposes of this clause, "subscriber" shall mean a member 42 of the general public who receives such newspapers, periodicals or 43 program services and does not further distribute them. 44 (10) Notwithstanding subparagraphs one through five of this paragraph, 45 but subject to subparagraph eight of this paragraph, the business allo- 46 cation percentage, to the extent that it is computed by reference to the 47 percentages determined under subparagraphs one, two and three of this 48 paragraph, shall be computed in the manner set forth in this subpara- 49 graph. 50 (A) For taxable years beginning in two thousand nine, the business 51 allocation percentage shall be determined by adding together the follow- 52 ing percentages: 53 (i) the product of thirty percent and the percentage determined under 54 subparagraph one of this paragraph, 55 (ii) the product of forty percent and the percentage determined under 56 subparagraph two of this paragraph, andS. 8474 463 1 (iii) the product of thirty percent and the percentage determined 2 under subparagraph three of this paragraph. 3 (B) For taxable years beginning in two thousand ten, the business 4 allocation percentage shall be determined by adding together the follow- 5 ing percentages: 6 (i) the product of twenty-seven percent and the percentage determined 7 under subparagraph one of this paragraph, 8 (ii) the product of forty-six percent and the percentage determined 9 under subparagraph two of this paragraph, and 10 (iii) the product of twenty-seven percent and the percentage deter- 11 mined under subparagraph three of this paragraph. 12 (C) For taxable years beginning in two thousand eleven, the business 13 allocation percentage shall be determined by adding together the follow- 14 ing percentages: 15 (i) the product of twenty-three and one-half percent and the percent- 16 age determined under subparagraph one of this paragraph, 17 (ii) the product of fifty-three percent and the percentage determined 18 under subparagraph two of this paragraph, and 19 (iii) the product of twenty-three and one-half percent and the 20 percentage determined under subparagraph three of this paragraph. 21 (D) For taxable years beginning in two thousand twelve, the business 22 allocation percentage shall be determined by adding together the follow- 23 ing percentages: 24 (i) the product of twenty percent and the percentage determined under 25 subparagraph one of this paragraph, 26 (ii) the product of sixty percent and the percentage determined under 27 subparagraph two of this paragraph, and 28 (iii) the product of twenty percent and the percentage determined 29 under subparagraph three of this paragraph. 30 (E) For taxable years beginning in two thousand thirteen, the business 31 allocation percentage shall be determined by adding together the follow- 32 ing percentages: 33 (i) the product of sixteen and one-half percent and the percentage 34 determined under subparagraph one of this paragraph, 35 (ii) the product of sixty-seven percent and the percentage determined 36 under subparagraph two of this paragraph, and 37 (iii) the product of sixteen and one-half percent and the percentage 38 determined under subparagraph three of this paragraph. 39 (F) For taxable years beginning in two thousand fourteen, the business 40 allocation percentage shall be determined by adding together the follow- 41 ing percentages: 42 (i) the product of thirteen and one-half percent and the percentage 43 determined under subparagraph one of this paragraph, 44 (ii) the product of seventy-three percent and the percentage deter- 45 mined under subparagraph two of this paragraph, and 46 (iii) the product of thirteen and one-half percent and the percentage 47 determined under subparagraph three of this paragraph. 48 (G) For taxable years beginning in two thousand fifteen, the business 49 allocation percentage shall be determined by adding together the follow- 50 ing percentages: 51 (i) the product of ten percent and the percentage determined under 52 subparagraph one of this paragraph, 53 (ii) the product of eighty percent and the percentage determined under 54 subparagraph two of this paragraph, and 55 (iii) the product of ten percent and the percentage determined under 56 subparagraph three of this paragraph.S. 8474 464 1 (H) For taxable years beginning in two thousand sixteen, the business 2 allocation percentage shall be determined by adding together the follow- 3 ing percentages: 4 (i) the product of six and one-half percent and the percentage deter- 5 mined under subparagraph one of this paragraph, 6 (ii) the product of eighty-seven percent and the percentage determined 7 under subparagraph two of this paragraph, and 8 (iii) the product of six and one-half percent and the percentage 9 determined under subparagraph three of this paragraph. 10 (I) For taxable years beginning in two thousand seventeen, the busi- 11 ness allocation percentage shall be determined by adding together the 12 following percentages: 13 (i) the product of three and one-half percent and the percentage 14 determined under subparagraph one of this paragraph, 15 (ii) the product of ninety-three percent and the percentage determined 16 under subparagraph two of this paragraph, and 17 (iii) the product of three and one-half percent and the percentage 18 determined under subparagraph three of this paragraph. 19 (J) For taxable years beginning after two thousand seventeen, the 20 business allocation percentage shall be the percentage determined under 21 subparagraph two of this paragraph. 22 (K) The commissioner shall promulgate rules necessary to implement the 23 provisions of this subparagraph under such circumstances where any of 24 the percentages to be determined under subparagraph one, two or three of 25 this paragraph cannot be determined because the taxpayer has no proper- 26 ty, receipts or wages within or without the city. 27 (11) (A) In the case of a taxpayer which is a registered securities or 28 commodities broker or dealer, the receipts specified in items (i) 29 through (vii) of this clause shall be deemed to arise from services 30 performed within the city to the extent set forth in each of such items. 31 (i) Receipts constituting brokerage commissions derived from the 32 execution of securities or commodities purchase or sales orders for the 33 accounts of customers shall be deemed to arise from services performed 34 at the mailing address in the records of the taxpayer of the customer 35 who is responsible for paying such commissions. 36 (ii) Receipts constituting margin interest earned on behalf of broker- 37 age accounts shall be deemed to arise from services performed at the 38 mailing address in the records of the taxpayer of the customer who is 39 responsible for paying such margin interest. 40 (iii) Gross income, including any accrued interest or dividends, from 41 principal transactions for the purchase or sale of stocks, bonds, 42 foreign exchange and other securities or commodities, including futures 43 and forward contracts, options and other types of securities or commod- 44 ities derivatives contracts, shall be deemed to arise from services 45 performed within the city either (I) to the extent that production cred- 46 its are awarded to branches, offices or employees of the taxpayer within 47 the city as a result of such principal transactions or (II) if the 48 taxpayer so elects, to the extent that the gross proceeds from such 49 principal transactions, determined without deduction for any cost 50 incurred by the taxpayer to acquire the securities or commodities, are 51 generated from sales of securities or commodities to customers within 52 the city based upon the mailing addresses of such customers in the 53 records of the taxpayer. For purposes of subitem (II) of this item, the 54 taxpayer shall separately calculate such gross income from principal 55 transactions by type of security or commodity. For purposes of this 56 item, gross income from principal transactions shall be determined afterS. 8474 465 1 the deduction of any cost incurred by the taxpayer to acquire the secu- 2 rities or commodities. For purposes of this subparagraph, the term 3 "production credits" means credits granted pursuant to the internal 4 accounting system used by the taxpayer to measure the amount of revenue 5 that should be awarded to a particular branch or office or employee of 6 the taxpayer which is based, at least in part, on the branch's, the 7 office's or the employee's particular activities. Upon request, the 8 taxpayer shall be required to furnish a detailed explanation of such 9 internal accounting system to the department. 10 (iv) (I) Receipts constituting fees earned by the taxpayer for advi- 11 sory services to a customer in connection with the underwriting of secu- 12 rities for such customer, such customer being the entity which is 13 contemplating issuing or is issuing securities, or fees earned by the 14 taxpayer for managing an underwriting shall be deemed to arise from 15 services performed at the mailing address in the records of the taxpayer 16 of such customer who is responsible for paying such fees. 17 (II) Receipts constituting the primary spread or selling concession 18 from underwritten securities shall be deemed to arise from services 19 performed within the city to the extent that production credits are 20 awarded to branches, offices or employees of the taxpayer within the 21 city as a result of the sale of the underwritten securities. 22 (III) The term "primary spread" means the difference between the price 23 paid by the taxpayer to the issuer of the securities being marketed and 24 the price received from the subsequent sale of the underwritten securi- 25 ties at the initial public offering price, less any selling concession 26 and any fees paid to the taxpayer for advisory services or any manager's 27 fees, if such fees are not paid by the customer to the taxpayer sepa- 28 rately. The term "public offering price" means the price agreed upon by 29 the taxpayer and the issuer at which the securities are to be offered to 30 the public. The term "selling concession" means the amount paid to the 31 taxpayer for participating in the underwriting of a security where the 32 taxpayer is not the lead underwriter. 33 (v) Receipts constituting interest earned by the taxpayer on loans and 34 advances made by the taxpayer to a corporation affiliated with the 35 taxpayer but with which the taxpayer is not permitted or required to 36 file a combined report pursuant to subdivision four of section 11-605 of 37 this subchapter shall be deemed to arise from services performed at the 38 principal place of business of such affiliated corporation. 39 (vi) Receipts constituting account maintenance fees shall be deemed to 40 arise from services performed at the mailing address in the records of 41 the taxpayer of the customer who is responsible for paying such account 42 maintenance fees. 43 (vii) Receipts constituting fees for management or advisory services, 44 including fees for advisory services in relation to merger or acquisi- 45 tion activities but excluding fees paid for services described in item 46 (ii) of clause (B) of subparagraph two of this paragraph, shall be 47 deemed to arise from services performed at the mailing address in the 48 records of the taxpayer of the customer who is responsible for paying 49 such fees. 50 (B) For purposes of this subparagraph, the term "securities" shall 51 have the same meaning as in paragraph two of subdivision (c) of section 52 four hundred seventy-five of the internal revenue code and the term 53 "commodities" shall have the same meaning as in paragraph two of subdi- 54 vision (e) of section four hundred seventy-five of the internal revenue 55 code. The term "registered securities or commodities broker or dealer" 56 means a broker or dealer registered as such by the securities andS. 8474 466 1 exchange commission or the commodities futures trading commission, and 2 shall include an over-the-counter derivatives dealer as defined under 3 regulations of the securities and exchange commission at title 17, part 4 240, section 3b-12 of the code of federal regulations (17 CFR 5 240.3b-12). 6 (C) If the taxpayer receives any of the receipts enumerated in clause 7 (A) of this subparagraph as a result of a securities correspondent 8 relationship such taxpayer has with another registered securities or 9 commodities broker or dealer with the taxpayer acting in this relation- 10 ship as the clearing firm, such receipts shall be deemed to arise from 11 services performed within the city to the extent set forth in each of 12 the items of clause (A) of this subparagraph. The amount of such 13 receipts shall exclude the amount the taxpayer is required to pay to the 14 correspondent firm for such correspondent relationship. If the taxpayer 15 receives any of the receipts enumerated in clause (A) of this subpara- 16 graph as a result of a securities correspondent relationship such 17 taxpayer has with another registered securities or commodities broker or 18 dealer with the taxpayer acting in this relationship as the introducing 19 firm, such receipts shall be deemed to arise from services performed 20 within the city to the extent set forth in each of the items of clause 21 (A) of this subparagraph. 22 (D) If, for purposes of item (i) or (ii), subitem (I) of item (iv), or 23 item (vi), or (vii) of clause (A) of this subparagraph, the taxpayer is 24 unable from its records to determine the mailing address of the custom- 25 er, the receipts enumerated in any of such items shall be deemed to 26 arise from services performed at the branch or office of the taxpayer 27 that generates the transaction for the customer that generated such 28 receipts. 29 (b) multiply its investment income by an investment allocation 30 percentage to be determined by: 31 (1) multiplying the amount of its investment capital invested in each 32 stock, bond or other security, other than governmental securities, 33 during the period covered by its report by the issuer's allocation 34 percentage of the issuer or obligor thereof. 35 (i) In the case of an issuer or obligor subject to tax under this 36 subchapter, subchapter three-A or subchapter four of this chapter, or 37 subject to tax as a utility corporation under chapter eleven of this 38 title, the issuer's allocation percentage shall be the percentage of the 39 appropriate measure, which is required to be allocated within the city 40 on the report or reports, if any, required of the issuer or obligor 41 under this title for the preceding year. The "appropriate measure" shall 42 be defined as: in the case of an issuer or obligor subject to this 43 subchapter or subchapter three-A, entire capital; in the case of an 44 issuer or obligor subject to subchapter four of this chapter, issued 45 capital stock; in the case of an issuer or obligor subject to chapter 46 eleven of this title as a utility corporation, gross income. 47 (ii) In the case of an issuer or obligor subject to tax under part 48 four of subchapter three of this chapter, the issuer's allocation 49 percentage shall be determined as follows: 50 (A) In the case of a banking corporation described in paragraphs one 51 through eight of subdivision (a) of section 11-640 of this chapter which 52 is organized under the laws of the United States, this state or any 53 other state of the United States, the issuer's allocation percentage 54 shall be its alternative entire net income allocation percentage, as 55 defined in subdivision (c) of section 11-642 of this chapter, for the 56 preceding year. In the case of such a banking corporation whose alterna-S. 8474 467 1 tive entire net income for the preceding year is derived exclusively 2 from business carried on within the city, its issuer's allocation 3 percentage shall be one hundred percent. 4 (B) In the case of a banking corporation described in paragraph two of 5 subdivision (a) of section 11-640 of this chapter which is organized 6 under the laws of a country other than the United States, the issuer's 7 allocation percentage shall be determined by dividing (I) the amount 8 described in clause (i) of subparagraph (A) of paragraph two of subdivi- 9 sion (a) of section 11-642 of this chapter with respect to such issuer 10 or obligor for the preceding year, by (II) the gross income of such 11 issuer or obligor from all sources within and without the United States, 12 for such preceding year, whether or not included in alternative entire 13 net income for such year. 14 (C) In the case of an issuer or obligor described in paragraph nine of 15 subdivision (a) or in paragraph two of subdivision (d) of section 11-640 16 of this chapter, the issuer's allocation percentage shall be determined 17 by dividing the portion of the entire capital of the issuer or obligor 18 allocable to the city for the preceding year by the entire capital, 19 wherever located, of the issuer or obligor for the preceding year. 20 (iii) Provided, however, that if a report or reports for the preceding 21 year are not filed, or if filed do not contain information which would 22 permit the determination of such issuer's allocation percentage, then 23 the issuer's allocation percentage to be used shall, at the discretion 24 of the commissioner of finance, be either (A) the issuer's allocation 25 percentage derived from the most recently filed report or reports of the 26 issuer or obligor or (B) a percentage calculated, by the commissioner of 27 finance, reasonably to indicate the degree of economic presence in the 28 city of the issuer or obligor during the preceding year. 29 (2) adding together the sum so obtained, and 30 (3) dividing the result so obtained by the total of its investment 31 capital invested during such period in stocks, bonds and other securi- 32 ties; provided, however, that in case any investment capital is invested 33 in any stock, bond or other security during only a portion of the period 34 covered by the report, only such portion of such capital shall be taken 35 into account; and provided further, that if a taxpayer's investment 36 allocation percentage is zero, interest received on bank accounts shall 37 be multiplied by its business allocation percentage; and 38 (c) add the products so obtained. 39 (d) Except as provided in subparagraph three of this paragraph or in 40 paragraph (e) of this subdivision, at the election of the taxpayer there 41 shall be deducted from the portion of its entire net income allocated 42 within the city either or both of the items set forth in subparagraphs 43 one and two of this paragraph, except that only one of such deductions 44 shall be allowed with respect to any one item of property. 45 (1) Depreciation with respect to any property such as described in 46 subparagraph three of this paragraph, not exceeding twice the depreci- 47 ation allowed with respect to the same property for federal income tax 48 purposes. Such deduction shall be allowed only upon condition that 49 entire net income be computed without any deduction for the depreciation 50 of the same property, and the total of all deductions allowed in any 51 taxable year or years with respect to the depreciation of any such prop- 52 erty shall not exceed its cost or other basis. 53 (2) Expenditures paid or incurred during the taxable year for the 54 construction, reconstruction, erection or acquisition of any property 55 such as described in subparagraph three of this paragraph which is used 56 or to be used for purposes of research and development in the exper-S. 8474 468 1 imental or laboratory sense. Such purposes shall not be deemed to 2 include the ordinary testing or inspection of materials or products for 3 quality control, efficiency surveys, management studies, consumer 4 surveys, advertising, promotions or research in connection with liter- 5 ary, historical or similar projects. Such deduction shall be allowed 6 only on condition that entire net income for the taxable year and all 7 succeeding taxable years be computed without the deduction of any such 8 expenditures and without any deduction for depreciation of the same 9 property, except to the extent that its basis may be attributable to 10 factors other than such expenditures, or in case a deduction is allow- 11 able pursuant to this subparagraph for only a part of such expenditures, 12 on condition that any deduction allowed for federal income tax purposes 13 on account of such expenditures or on account of depreciation of the 14 same property be proportionately reduced in computing entire net income 15 for the taxable year and all succeeding taxable years. With respect to 16 property which is used or to be used for research and development only 17 in part, or during only part of its useful life, a proportionate part of 18 such expenditures shall be deductible. If all or part of such expendi- 19 tures with respect to any property shall have been deducted as provided 20 in this subparagraph, and such property is used for purposes other than 21 research and development to a greater extent than originally reported, 22 the taxpayer shall report such use in its report for the first taxable 23 year during which it occurs, and the commissioner of finance may recom- 24 pute the tax for the year or years for which such deduction was allowed, 25 and may assess any additional tax resulting from such recomputation 26 regardless of the time limitations set forth in section 11-674 of this 27 chapter. 28 (3) Such deductions shall be allowed only with respect to tangible 29 property which is depreciable pursuant to section one hundred sixty-sev- 30 en of the internal revenue code, having a situs in the city and used in 31 the taxpayer's trade or business, (A) constructed, reconstructed or 32 erected after December thirty-first, nineteen hundred sixty-five, pursu- 33 ant to a contract which was, on or before December thirty-first, nine- 34 teen hundred sixty-seven, and at all times thereafter, binding on the 35 taxpayer or, property, the physical construction, reconstruction or 36 erection of which began on or before December thirty-first, nineteen 37 hundred sixty-seven or which began after such date pursuant to an order 38 placed on or before December thirty-first, nineteen hundred sixty-seven, 39 and then only with respect to that portion of the basis thereof or the 40 expenditures relating thereto which is properly attributable to such 41 construction, reconstruction or erection after December thirty-first, 42 nineteen hundred sixty-five, or (B) acquired after December thirty- 43 first, nineteen hundred sixty-five, pursuant to a contract which was, on 44 or before December thirty-first, nineteen hundred sixty-seven, and at 45 all times thereafter, binding on the taxpayer or pursuant to an order 46 placed on or before December thirty-first, nineteen hundred sixty-seven, 47 by purchase as defined in section one hundred seventy-nine (d) of the 48 internal revenue code, if the original use of such property commenced 49 with the taxpayer, commenced in the city and commenced after December 50 thirty-first, nineteen hundred sixty-five, or (C) acquired, constructed, 51 reconstructed, or erected subsequent to December thirty-first nineteen 52 hundred sixty-seven, if such acquisition, construction, reconstruction 53 or erection is pursuant to a plan of the taxpayer which was in existence 54 December thirty-first, nineteen hundred sixty-seven and not thereafter 55 substantially modified, and such acquisition, construction, recon- 56 struction or erection would qualify under the rules in paragraphs four,S. 8474 469 1 five or six of subsection (h) of section forty-eight of the internal 2 revenue code provided all references in such paragraphs four, five and 3 six to the dates October nine, nineteen hundred sixty-six, and October 4 ten, nineteen hundred sixty-six, shall be read as December thirty-first, 5 nineteen hundred sixty-seven. A taxpayer shall be allowed a deduction 6 under clauses (A), (B) or (C) of this subparagraph only if the tangible 7 property shall be delivered or the construction, reconstruction or 8 erection shall be completed on or before December thirty-first, nineteen 9 hundred sixty-nine, except in the case of tangible property which is 10 acquired, constructed, reconstructed or erected pursuant to a contract 11 which was, on or before December thirty-first, nineteen hundred sixty- 12 seven, and at all times thereafter, binding on the taxpayer. Provided, 13 however, for any taxable year beginning on or after January first, nine- 14 teen hundred sixty-eight, a taxpayer shall not be allowed a deduction 15 under this paragraph with respect to tangible personal property leased 16 by it to any other person or corporation. Accordingly, any contract or 17 agreement to lease or rent or for a license to use such property shall 18 be considered a lease. With respect to property which the taxpayer uses 19 itself for purposes other than leasing for part of a taxable year and 20 leases for a part of a taxable year, the taxpayer shall be allowed a 21 deduction under this paragraph in proportion to the part of the year it 22 uses such property. 23 (4) If the deductions allowable for any taxable year, pursuant to this 24 subdivision, exceed the portion of the taxpayer's entire net income 25 allocated to the city for such year, the excess may be carried over to 26 the following taxable year or years and may be deducted from the portion 27 of the taxpayer's entire net income allocated to the city for such year 28 or years. 29 (5) In any taxable year when property is sold or otherwise disposed 30 of, with respect to which a deduction has been allowed pursuant to 31 subparagraph one or two of this paragraph, the gain or loss thereon 32 entering into the computation of federal taxable income shall be disre- 33 garded in computing entire net income, and there shall be added to or 34 subtracted from the portion of entire net income allocated within the 35 city the gain or loss upon such sale or other disposition. In computing 36 such gain or loss the basis of the property sold or disposed of shall be 37 adjusted to reflect the deduction allowed with respect to such property 38 pursuant to subparagraph one or two of this paragraph. Provided, howev- 39 er, that no loss shall be recognized for the purposes of this subpara- 40 graph with respect to a sale or other disposition of property to a 41 person whose acquisition thereof is not a purchase as defined in section 42 one hundred seventy-nine (d) of the internal revenue code. 43 (e) At the election of the taxpayer there shall be deducted from the 44 portion of its entire net income allocated within the city either or 45 both of the items set forth in subparagraphs one and two of this para- 46 graph, except that only one of such deductions shall be allowed with 47 respect to any one item of property. 48 (1) Depreciation with respect to any property such as described in 49 subparagraphs three and four of this paragraph, not exceeding twice the 50 depreciation allowed with respect to the same property for federal 51 income tax purposes. Such deduction shall be allowed only upon condition 52 that entire net income be computed without any deduction for the depre- 53 ciation of the same property, and the total of all deductions allowed in 54 any taxable year or years with respect to the depreciation of any such 55 property shall not exceed its cost or other basis multiplied by the 56 taxpayer's business allocation percentage determined under this subdivi-S. 8474 470 1 sion for the first year it deducts such depreciation under this para- 2 graph. 3 (2) Expenditures paid or incurred during the taxable year for the 4 construction, reconstruction, erection or acquisition of any property 5 such as described in subparagraph three of this paragraph which is used 6 or to be used for purposes of research and development in the exper- 7 imental or laboratory sense. Such purposes shall not be deemed to 8 include the ordinary testing or inspection of materials or products for 9 quality control, efficiency surveys, management studies, consumer 10 surveys, advertising, promotions or research in connection with liter- 11 ary, historical or similar projects. Such deductions shall be allowed 12 only on condition that it does not exceed the amount of the expenditures 13 multiplied by the taxpayer's business allocation percentage determined 14 under this subdivision for the year the expenditures are paid or 15 incurred and that entire net income for the taxable year and all 16 succeeding taxable years be computed without the deduction of any such 17 expenditures and without any deduction for depreciation of the same 18 property, except to the extent that its basis may be attributable to 19 factors other than such expenditures, or in case a deduction is allow- 20 able pursuant to this subparagraph for only a part of such expenditures, 21 on condition that any deduction allowed for federal income tax purposes 22 on account of such expenditures or on account of depreciation of the 23 same property be proportionately reduced in computing entire net income 24 for the taxable year and all succeeding taxable years. With respect to 25 property which is used or to be used for research and development only 26 in part, or during only part of its useful life, a proportionate part of 27 such expenditures shall be deductible. If all or part of such expendi- 28 tures with respect to any property shall have been deducted as provided 29 in this subparagraph, and such property is used for purposes other than 30 research and development to a greater extent than originally reported, 31 the taxpayer shall report such use in its report for the first taxable 32 year during which it occurs, and the commissioner of finance may recom- 33 pute the tax for the year or years for which such deduction was allowed, 34 and may assess any additional tax resulting from such recomputation 35 regardless of the time limitations set forth in section 11-674 of this 36 chapter. 37 (3) Such deduction shall be allowed only with respect to tangible 38 property which is depreciable pursuant to section one hundred sixty-sev- 39 en of the internal revenue code, having a situs in the city and used in 40 the taxpayer's trade or business (A) the construction, reconstruction or 41 erection of which is completed after December thirty-first, nineteen 42 hundred sixty-seven, and then only with respect to that portion of the 43 basis thereof or the expenditures relating thereto which is properly 44 attributable to such construction, reconstruction or erection after 45 December thirty-first, nineteen hundred sixty-five, or (B) acquired 46 after December thirty-first, nineteen hundred sixty-seven by purchase or 47 defined in section one hundred seventy-nine (d) of the internal revenue 48 code, if the original use of such property commenced with the taxpayer, 49 commenced in this state and commenced after December thirty-first nine- 50 teen hundred sixty-five. Provided, however, for any taxable year begin- 51 ning on or after January first, nineteen hundred sixty-eight, a taxpayer 52 shall not be allowed a deduction under this paragraph with respect to 53 tangible personal property leased by it to any other person or corpo- 54 ration. Accordingly, any contract or agreement to lease or rent or for a 55 license to use such property shall be considered a lease. With respect 56 to property which the taxpayer uses itself for purposes other than leas-S. 8474 471 1 ing for part of a taxable year and leases for a part of a taxable year, 2 the taxpayer shall be allowed a deduction under this paragraph in 3 proportion to the part of the year it uses such property. 4 (4) A deduction under subparagraph one of this paragraph shall be 5 allowed with respect to tangible property described in subparagraph 6 three only if such property is principally used by the taxpayer in the 7 production of goods by manufacturing; processing; assembling; refining; 8 mining; extracting; farming; agriculture; horticulture; floriculture; 9 viticulture or commercial fishing. For purposes of this subparagraph, 10 manufacturing shall mean the process of working raw materials into wares 11 suitable for use or which gives new shapes, new qualities or new combi- 12 nations to matter which already has gone through some artificial process 13 by the use of machinery, tools, appliances and other similar equipment. 14 Property used in the production of goods shall include machinery, equip- 15 ment or other tangible property which is principally used in the repair 16 and service of other machinery, equipment or other tangible property 17 used principally in the production of goods and shall include all facil- 18 ities used in the manufacturing operation, including storage of material 19 to be used in manufacturing and of the products that are manufactured. 20 At the option of the taxpayer, air and water pollution control facili- 21 ties which qualify for elective deductions under paragraph (g) of subdi- 22 vision eight of section 11-602 of this subchapter may be treated, for 23 purposes of this paragraph, as tangible property principally used in the 24 production of goods by manufacturing; processing; assembling; refining; 25 mining; extracting; farming; agriculture; horticulture; floriculture; 26 viticulture; or commercial fishing, in which event, a deduction shall 27 not be allowed under such paragraph (g). 28 (5) Subject to the limitation imposed by subparagraphs one and two of 29 this paragraph, if the deductions allowable for any taxable year, pursu- 30 ant to this subdivision, exceed the portion of the taxpayer's entire net 31 income allocated to the city for such year, the excess may be carried 32 over to the following taxable year or years and may be deducted from the 33 portion of the taxpayer's entire net income allocated to the city for 34 such year or years. 35 (6) In any taxable year when property is sold or otherwise disposed 36 of, with respect to which a deduction has been allowed pursuant to 37 subparagraph one or two of this paragraph, the gain or loss thereon 38 entering into the computation of federal taxable income shall be disre- 39 garded in computing entire net income, and there shall be added to or 40 subtracted from the portion of entire net income allocated within the 41 city the gain or loss upon such sale or other disposition. In computing 42 such gain or loss the basis of the property sold or disposed of shall be 43 adjusted to reflect the deduction allowed with respect to such property 44 pursuant to subparagraph one or two of this paragraph. Provided, howev- 45 er, that no loss shall be recognized for the purposes of this subpara- 46 graph with respect to a sale or other disposition of property to a 47 person whose acquisition thereof is not a purchase as defined in section 48 one hundred seventy-nine (d) of the internal revenue code. 49 4. The portion of the business capital of a taxpayer to be allocated 50 within the city shall be determined by multiplying the amount thereof by 51 the business allocation percentage determined as provided for in this 52 subdivision. Provided, however, such business allocation percentage, for 53 purposes of allocating business capital, shall (a) for taxable years 54 beginning before nineteen hundred ninety-four, be determined without 55 regard to clause (C) of subparagraph six of paragraph (a) of subdivision 56 three of this section and (b) for taxable years beginning after nineteenS. 8474 472 1 hundred ninety-three, be determined with regard to such clause (C) but 2 only in the case of a taxpayer subject to the provisions of paragraph 3 (b) of subdivision six of section 11-602 of this subchapter. 4 5. The portion of the investment capital of a taxpayer to be allocated 5 within the city shall be determined by multiplying the amount thereof by 6 the investment allocation percentage determined as provided in this 7 subdivision. 8 7. The portion of the subsidiary capital of a taxpayer to be allocated 9 within the city shall be determined by (a) multiplying the amount of its 10 subsidiary capital invested in each subsidiary during the period covered 11 by its report, or, in the case of any such capital so invested during 12 only a portion of such period, such portion of such capital, by the 13 issuer's allocation percentage, as defined in subparagraph one of para- 14 graph (b) of subdivision three of this section, of each such subsidiary 15 and (b) adding together the sums so obtained. 16 8. If it shall appear to the commissioner of finance that any business 17 or investment allocation percentage determined as provided in this 18 subdivision does not properly reflect the activity, business, income or 19 capital of a taxpayer within the city, the commissioner of finance shall 20 be authorized in his or her discretion, in the case of a business allo- 21 cation percentage, to adjust it by (a) excluding one or more of the 22 factors therein, (b) including one or more other factors, such as 23 expenses, purchases, contract values, minus subcontract values, (c) 24 excluding one or more assets in computing such allocation percentage, 25 provided the income therefrom is also excluded in determining entire net 26 income, or (d) any other similar or different method calculated to 27 effect a fair and proper allocation of the income and capital reasonably 28 attributable to the city, and in the case of an investment allocation 29 percentage to adjust it by excluding one or more assets in computing 30 such percentage provided the income therefrom is also excluded in deter- 31 mining entire net income. The commissioner of finance from time to time 32 shall publish all rulings of general public interest with respect to any 33 application of the provisions of this subdivision. 34 9. If it shall appear to the commissioner of finance that any business 35 allocation percentage determined as provided in subdivisions one through 36 eight of this section does not properly reflect the activity, business, 37 income or capital of a taxpayer within the city, the commissioner of 38 finance shall be authorized in his or her discretion to adjust it by (a) 39 excluding one or more of the factors therein, (b) including one or more 40 other factors, such as expenses, purchases, contract values, minus 41 subcontract values, (c) excluding one or more assets in computing such 42 allocation percentage, provided the income therefrom, is also excluded 43 in determining entire net income, or (d) any other similar or different 44 method calculated to effect a fair and proper allocation of the income 45 and capital reasonably attributable to the city, and in the case of an 46 investment allocation percentage, to adjust it by excluding one or more 47 assets in computing such percentage provided the income therefrom is 48 also excluded in determining entire net income. The commissioner of 49 finance from time to time shall publish all rulings of general public 50 interest with respect to any application of the provisions of this 51 subdivision. 52 11. (a) A taxpayer shall be allowed a credit, to be refunded in the 53 manner as provided in this subdivision, against the tax imposed by this 54 chapter. The amount of such credit shall be fifty percent of the tax 55 incurred in market making transactions under the provisions of article 56 twelve of the tax law on such transactions subject to such tax occurringS. 8474 473 1 on and after August first, nineteen hundred seventy-six and paid by such 2 taxpayer, except when such tax shall have been paid pursuant to section 3 two hundred seventy-nine-a of such tax law. 4 (b) For purposes of this subdivision: 5 (1) the term "taxpayer" shall mean any corporation subject to tax 6 under this chapter registered with the United States securities and 7 exchange commission in accordance with subsection (b) of section fifteen 8 of the securities exchange act of nineteen hundred thirty-four, as 9 amended, and acting as a dealer in a transaction described in subpara- 10 graph two of this paragraph, and 11 (2) the term "market making transaction" shall mean any transaction 12 involving a sale, including a short sale, by a dealer of shares or 13 certificates subject to the tax imposed by article twelve of the tax 14 law, provided such shares or certificates are sold: 15 (i) as stock in trade or inventory or as property held for sale in the 16 ordinary course of such dealer's trade or business, including transfers 17 which are part of an underwriting, 18 (ii) in (a) a bona fide arbitrage transaction; (b) a bona fide hedge 19 transaction involving a long or short position in any equity security 20 and a long or short position in a security entitling the holder to 21 acquire or sell such equity security; or (c) a risk arbitrage trans- 22 action in connection with a merger, acquisition, tender offer, recap- 23 italization, reorganization, or similar transaction, or 24 (iii) to offset a transaction made in error. 25 Provided, however, that, except as to subclause (c) of clause (ii) of 26 this paragraph, the term "market making transaction" shall not include 27 any sale of shares or certificates identified in such dealer's records 28 as a security held for investment within the meaning of section twelve 29 hundred thirty-six of the internal revenue code. 30 (c) The credit allowed under this subdivision for any taxable year 31 shall be deemed to be an overpayment of tax by the taxpayer to be cred- 32 ited or refunded in accordance with the provisions of section 11-677 of 33 this chapter, except as otherwise provided in subdivision three of 34 section 11-606 and subdivision eleven of section 11-608; provided, 35 however, that the provisions of this title notwithstanding, the amount 36 to be refunded pursuant to this subdivision shall not be paid prior to 37 the first day of the eighth month following the close of the taxable 38 year, and the provisions of subdivision three of section 11-679 of this 39 chapter notwithstanding interest shall be allowed and paid on the over- 40 payment of the credit under this subdivision from the first day of the 41 eleventh month following the close of the taxable year, or three months 42 after a claim for the credit or refund provided for in this subdivision 43 has been filed, whichever is later. 44 (d) Provided, however, that the credit provided under this subdivision 45 shall be allowed only to the extent that the amount of credit allowable 46 with respect to market making transactions under the provisions of this 47 subdivision, determined without regard to the provisions of this para- 48 graph, exceeds fifty percent of all rebates, provided for under the 49 provisions of section two hundred eighty-a of the tax law, allowed for 50 such taxes incurred in the same market making transactions with respect 51 to which the credit is determined. No credit shall be allowed under this 52 subdivision with respect to any tax incurred in market making trans- 53 actions occurring on or after October first, nineteen hundred eighty- 54 one. 55 12. (a) In addition to the credit allowed by subdivision eleven of 56 this section, a taxpayer shall be allowed a credit against the taxS. 8474 474 1 imposed by this subchapter to be credited or refunded in the manner 2 provided in this section. The amount of such credit shall be the excess 3 of (A) the amount of sales and compensating use taxes imposed by section 4 eleven hundred seven of the tax law during the taxpayer's taxable year 5 which became legally due on or after and was paid on or after July 6 first, nineteen hundred seventy-seven, less any credits or refunds of 7 such taxes, with respect to the purchase or use by the taxpayer of 8 machinery or equipment for use or consumption directly and predominantly 9 in the production of tangible personal property, gas, electricity, 10 refrigeration or steam for sale, by manufacturing, processing, generat- 11 ing, assembling, refining, mining or extracting, or telephone central 12 office equipment or station apparatus or comparable telegraph equipment 13 for use directly and predominantly in receiving at destination or initi- 14 ating and switching telephone or telegraph communication, but not 15 including parts with a useful life of one year or less or tools or 16 supplies used in connection with such machinery, equipment or apparatus 17 over (B) the amount of any credit for such sales and compensating use 18 taxes allowed or allowable against the taxes imposed by subchapter two 19 of chapter eleven of this title for any periods embraced within the 20 taxable year of the taxpayer under this subchapter. 21 (b) The credit allowed under this subdivision for any taxable year 22 shall be deemed to be an overpayment of tax by the taxpayer to be cred- 23 ited or refunded, without interest, in accordance with the provisions of 24 section 11-677 of this chapter. 25 (c) Where the taxpayer receives a refund or credit of any tax imposed 26 under section eleven hundred seven of the tax law for which the taxpayer 27 had claimed a credit under the provisions of this subdivision in a prior 28 taxable year, the amount of such tax refund shall be added to the tax 29 imposed by subdivision one of section 11-603 of this subchapter, and 30 such amount shall be subtracted in computing entire net income for the 31 taxable year. 32 13. (a) In addition to any other credit allowed by this section, a 33 taxpayer shall be allowed a credit against the tax imposed by this 34 subchapter to be credited or refunded without interest, in the manner 35 provided in this section. 36 (1) Where a taxpayer shall have relocated to the city from a location 37 outside the state, and by such relocation shall have created a minimum 38 of one hundred industrial or commercial employment opportunities; and 39 where such taxpayer shall have entered into a written lease for the 40 relocation premises, the terms of which lease provide for increased 41 additional payments to the landlord which are based solely and directly 42 upon any increase or addition in real estate taxes imposed on the leased 43 premises, the taxpayer upon approval and certification by the industrial 44 and commercial incentive board shall be entitled to a credit against the 45 tax imposed by this subchapter. The amount of such credit shall be: An 46 amount equal to the annual increased payments actually made by the 47 taxpayer to the landlord which are solely and directly attributable to 48 an increase or addition to the real estate tax imposed upon the leased 49 premises. Such credit shall be allowed only to the extent that the 50 taxpayer has not otherwise claimed said amount as a deduction against 51 the tax imposed by this subchapter. 52 The industrial and commercial incentive board in approving and certi- 53 fying to the qualifications of the taxpayer to receive the tax credit 54 provided for in this subdivision shall first determine that the appli- 55 cant has met the requirements of this section, and further, that the 56 granting of the tax credit to the applicant is in the "public interest".S. 8474 475 1 In determining that the granting of the tax credit is in the public 2 interest, the board shall make affirmative findings that: the granting 3 of the tax credit to the applicant will not effect an undue hardship on 4 similar taxpayers already located within the city; the existence of this 5 tax incentive has been instrumental in bringing about the relocation of 6 the applicant to the city; and the granting of the tax credit will 7 foster the economic recovery and economic development of the city. 8 The tax credit, if approved and certified by the industrial and 9 commercial incentive board, must be utilized annually by the taxpayer 10 for the length of the term of the lease or for a period not to exceed 11 ten years from the date of relocation whichever period is shorter. 12 (2) When used in this section, the following terms shall have the 13 following meanings: 14 (i) "Employment opportunity" means the creation of a full time posi- 15 tion of gainful employment for an industrial or commercial employee and 16 the actual hiring of such employee for the said position. 17 (ii) "Industrial employee" means one engaged in the manufacture or 18 assembling of tangible goods or the processing of raw materials. 19 (iii) "Commercial employee" means one engaged in the buying, selling 20 or otherwise providing of goods or services other than on a retail 21 basis. 22 (iv) "Retail" means the selling or otherwise disposing or furnishing 23 of tangible goods or services directly to the ultimate user or consumer. 24 (v) "Full time position" means the hiring of an industrial or commer- 25 cial employee in a position of gainful employment where the number of 26 hours worked by such employees is not less than thirty hours during any 27 given work week. 28 (vi) "Industrial and commercial incentive board" means the board 29 created pursuant to part three of subchapter two of chapter two of this 30 title. 31 (b) The credit allowed under this subdivision for any taxable year 32 shall be deemed to be an overpayment of tax by the taxpayer to be cred- 33 ited or refunded, without interest, in accordance with the provisions of 34 section 11-677 of this chapter. 35 14. (a) In addition to any other credit allowed by this section, a 36 taxpayer shall be allowed a credit against the tax imposed by this 37 subchapter to be credited or refunded without interest, in the manner 38 provided in this section. The amount of such credit shall be: 39 (1) A maximum of three hundred dollars for each commercial employment 40 opportunity and a maximum of five hundred dollars for each industrial 41 employment opportunity relocated to the city from an area outside the 42 state. Such credit shall be allowed to a taxpayer who relocates a mini- 43 mum of ten employment opportunities. The credit shall be allowed against 44 employment opportunity relocation costs incurred by the taxpayer. Such 45 credit shall be allowed only to the extent that the taxpayer has not 46 claimed a deduction for allowable employment opportunity relocation 47 costs. Such credit may be taken by the taxpayer in whole or in part in 48 the year in which the employment opportunity is relocated by such 49 taxpayer or either of the two years succeeding such event, provided, 50 however, no credit shall be allowed under this subdivision to a taxpayer 51 for industrial employment opportunities relocated to premises (A) that 52 are within an industrial business zone established pursuant to section 53 22-626 of this code and (B) for which a binding contract to purchase or 54 lease was first entered into by the taxpayer on or after July first, two 55 thousand five.S. 8474 476 1 The commissioner of finance is empowered to promulgate rules and regu- 2 lations and to prescribe the form of application to be used by a taxpay- 3 er seeking such credit. 4 (2) When used in this section: (i) "Employment opportunity" means the 5 creation of a full time position of gainful employment for an industrial 6 or commercial employee and the actual hiring of such employee for the 7 said position. 8 (ii) "Industrial employee" means one engaged in the manufacture or 9 assembling of tangible goods or the processing of raw materials. 10 (iii) "Commercial employee" means one engaged in the buying, selling 11 or otherwise providing of goods or services other than on a retail 12 basis. 13 (iv) "Retail" means the selling or otherwise disposing of tangible 14 goods directly to the ultimate user or consumer. 15 (v) "Full time position" means the hiring of an industrial or commer- 16 cial employee in a position of gainful employment where the number of 17 hours worked by such employee is not less than thirty hours during any 18 given work week. 19 (vi) "Employment opportunity relocation costs" means the costs 20 incurred by the taxpayer in moving furniture, files, papers and office 21 equipment into the city from a location outside the state; the costs 22 incurred by the taxpayer in the moving and installation of machinery and 23 equipment into the city from a location outside the state; the costs of 24 installation of telephones and other communications equipment required 25 as a result of the relocation to the city from a location outside the 26 state; the cost incurred in the purchase of office furniture and 27 fixtures required as a result of the relocation to the city from a 28 location outside the state; and the cost of renovation of the premises 29 to be occupied as a result of the relocation provided, however, that 30 such renovation costs shall be allowable only to the extent that they do 31 not exceed seventy-five cents per square foot of the total area utilized 32 by the taxpayer in the occupied premises. 33 (b) The credit allowed under this section for any taxable year shall 34 be deemed to be an overpayment of tax by the taxpayer to be credited or 35 refunded without interest in accordance with the provisions of section 36 11-677 of this chapter. 37 17. (a) In addition to any other credit allowed by this section, a 38 taxpayer that has obtained the certifications required by chapter six-B 39 of title twenty-two of the preceding municipality code shall be allowed 40 a credit against the tax imposed by this subchapter. The amount of the 41 credit shall be the amount determined by multiplying five hundred 42 dollars or, in the case of a taxpayer that has obtained pursuant to 43 chapter six-B of such title twenty-two a certification of eligibility 44 dated on or after July first, nineteen hundred ninety-five, one thousand 45 dollars or, in the case of an eligible business that has obtained pursu- 46 ant to chapter six-B of such title twenty-two a certification of eligi- 47 bility dated on or after July first, two thousand, for a relocation to 48 eligible premises located within a revitalization area defined in subdi- 49 vision (n) of section 22-621 of the code of the preceding municipality, 50 three thousand dollars, by the number of eligible aggregate employment 51 shares maintained by the taxpayer during the taxable year with respect 52 to particular premises to which the taxpayer has relocated; provided, 53 however, with respect to a relocation for which no application for a 54 certificate of eligibility is submitted prior to July first, two thou- 55 sand three, to eligible premises that are not within a revitalization 56 area, if the date of such relocation as determined pursuant to subdivi-S. 8474 477 1 sion (j) of section 22-621 of the code of the preceding municipality is 2 before July first, nineteen hundred ninety-five, the amount to be multi- 3 plied by the number of eligible aggregate employment shares shall be 4 five hundred dollars, and with respect to a relocation for which no 5 application for a certificate of eligibility is submitted prior to July 6 first, two thousand three, to eligible premises that are within a revi- 7 talization area, if the date of such relocation as determined pursuant 8 to subdivision (j) of such section is before July first, nineteen 9 hundred ninety-five, the amount to be multiplied by the number of eligi- 10 ble aggregate employment shares shall be five hundred dollars, and if 11 the date of such relocation as determined pursuant to subdivision (j) of 12 such section is on or after July first, nineteen hundred ninety-five, 13 and before July first, two thousand, one thousand dollars; provided, 14 however, that no credit shall be allowed for the relocation of any 15 retail activity or hotel services; provided, further, that no credit 16 shall be allowed under this subdivision to any taxpayer that has elected 17 pursuant to subdivision (d) of section 22-622 of the code of the preced- 18 ing municipality to take such credit against a gross receipts tax 19 imposed by chapter eleven of this title; and provided that in the case 20 of an eligible business that has obtained pursuant to chapter six-B of 21 such title twenty-two certifications of eligibility for more than one 22 relocation, the portion of the total amount of eligible aggregate 23 employment shares to be multiplied by the dollar amount specified in 24 this subdivision for each such certification of a relocation shall be 25 the number of total attributed eligible aggregate employment shares 26 determined with respect to such relocation pursuant to subdivision (o) 27 of section 22-621 of the code of the preceding municipality. For 28 purposes of this subdivision, the terms "eligible aggregate employment 29 shares," "relocate," "retail activity" and "hotel services" shall have 30 the meanings ascribed by section 22-621 of the code of the preceding 31 municipality. 32 (b) The credit allowed under this subdivision with respect to eligible 33 aggregate employment shares maintained with respect to particular prem- 34 ises to which the taxpayer has relocated shall be allowed for the first 35 taxable year during which such eligible aggregate employment shares are 36 maintained with respect to such premises and for any of the twelve 37 succeeding taxable years during which eligible aggregate employment 38 shares are maintained with respect to such premises; provided that the 39 credit allowed for the twelfth succeeding taxable year shall be calcu- 40 lated by multiplying the number of eligible aggregate employment shares 41 maintained with respect to such premises in the twelfth succeeding taxa- 42 ble year by the lesser of one and a fraction the numerator of which is 43 such number of days in the taxable year of relocation less the number of 44 days the eligible business maintained employment shares in the eligible 45 premises in the taxable year of relocation and the denominator of which 46 is the number of days in such twelfth succeeding taxable year during 47 which such eligible aggregate employment shares are maintained with 48 respect to such premises. Except as provided in paragraph (d) of this 49 subdivision, if the amount of the credit allowable under this subdivi- 50 sion for any taxable year exceeds the tax imposed for such year, the 51 excess may be carried over, in order, to the five immediately succeeding 52 taxable years and, to the extent not previously deductible, may be 53 deducted from the taxpayer's tax for such years. 54 (c) The credit allowable under this subdivision shall be deducted 55 after the credit allowed by subdivision eighteen of this section, but 56 prior to the deduction of any other credit allowed by this section.S. 8474 478 1 (d) In the case of a taxpayer that has obtained a certification of 2 eligibility pursuant to chapter six-B of title twenty-two of the code of 3 the preceding municipality dated on or after July first, two thousand 4 for a relocation to eligible premises located within the revitalization 5 area defined in subdivision (n) of section 22-621 of the code of the 6 preceding municipality, the credits allowed under this subdivision, or 7 in the case of a taxpayer that has relocated more than once, the portion 8 of such credits attributed to such certification of eligibility pursuant 9 to paragraph (a) of this subdivision, against the tax imposed by this 10 chapter for the taxable year of such relocation and for the four taxable 11 years immediately succeeding the taxable year of such relocation, shall 12 be deemed to be overpayments of tax by the taxpayer to be credited or 13 refunded, without interest, in accordance with the provisions of section 14 11-677 of this chapter. For such taxable years, such credits or portions 15 thereof may not be carried over to any succeeding taxable year; 16 provided, however, that this paragraph shall not apply to any relocation 17 for which an application for a certification of eligibility was not 18 submitted prior to July first, two thousand three, unless the date of 19 such relocation is on or after July first, two thousand. 20 17-a. (a) In addition to any other credit allowed by this section, a 21 taxpayer shall be allowed a credit against the tax imposed by this 22 subchapter to be credited or refunded in the manner provided in this 23 subdivision. The amount of such credit shall be equal to the amount of 24 sales and compensating use taxes imposed by section eleven hundred seven 25 of the tax law during the taxpayer's taxable year, and the amount of any 26 interest imposed in connection therewith, which was paid after January 27 first, nineteen hundred ninety-five, less any credit or refund of such 28 taxes, or such interest, with respect to the purchase or use by the 29 taxpayer of the services described in subdivision (b) of section eleven 30 hundred five-b of the tax law. 31 (b) The credit allowed under this subdivision for any taxable year 32 shall be deemed to be an overpayment of tax by the taxpayer to be cred- 33 ited or refunded, without interest, in accordance with the provisions of 34 section 11-677 of this chapter. 35 (c) Where the taxpayer receives a refund or credit of any tax imposed 36 under section eleven hundred seven of the tax law, or of any interest 37 imposed in connection therewith, for which the taxpayer had claimed a 38 credit under the provisions of this subdivision in a prior taxable year, 39 the amount of such tax, or such interest, refund or credit shall be 40 added to the tax imposed by subdivision one of section 11-603 of this 41 subchapter, and such amount shall be subtracted in computing entire net 42 income for the taxable year. 43 17-b. (a) For taxable years beginning on or after January first, two 44 thousand six, in addition to any other credit allowed by this section, 45 an eligible business that first enters into a binding contract on or 46 after July first, two thousand five to purchase or lease eligible prem- 47 ises to which it relocates shall be allowed a one-time credit against 48 the tax imposed by this subchapter to be credited or refunded in the 49 manner hereinafter provided in this subdivision. The amount of such 50 credit shall be one thousand dollars per full-time employee; provided, 51 however, that the amount of such credit shall not exceed the lesser of 52 actual relocation costs or one hundred thousand dollars. 53 (b) When used in this subdivision, the following terms shall have the 54 following meanings: 55 (i) "Eligible business" means any business subject to tax under this 56 subchapter that (1) has been conducting substantial business operationsS. 8474 479 1 and engaging primarily in industrial and manufacturing activities at one 2 or more locations within the city of Staten Island or outside the state 3 of New York continuously during the twenty-four consecutive full months 4 immediately preceding relocation, (2) has leased the premises from which 5 it relocates continuously during the twenty-four consecutive full months 6 immediately preceding relocation, (3) first enters into a binding 7 contract on or after July first, two thousand five to purchase or lease 8 eligible premises to which such business will relocate, and (4) will be 9 engaged primarily in industrial and manufacturing activities at such 10 eligible premises. 11 (ii) "Eligible premises" means premises located entirely within an 12 industrial business zone. For any eligible business, an industrial busi- 13 ness zone tax credit shall not be granted with respect to more than one 14 eligible premises. 15 (iii) "Full-time employee" means (1) one person gainfully employed in 16 an eligible premises by an eligible business where the number of hours 17 required to be worked by such person is not less than thirty-five hours 18 per week; or (2) two persons gainfully employed in an eligible premises 19 by an eligible business where the number of hours required to be worked 20 by each such person is more than fifteen hours per week but less than 21 thirty-five hours per week. 22 (iv) "Industrial business zone" means an area within the city of 23 Staten Island established pursuant to section 22-626 of the code of the 24 preceding municipality. 25 (v) "Industrial business zone tax credit" means a credit, as provided 26 for in this subdivision, against a tax imposed under this subchapter. 27 (vi) "Industrial and manufacturing activities" means activities 28 involving the assembly of goods to create a different article, or the 29 processing, fabrication, or packaging of goods. Industrial and manufac- 30 turing activities shall not include waste management or utility 31 services. 32 (vii) "Relocation" means the physical relocation of furniture, 33 fixtures, equipment, machinery and supplies directly to an eligible 34 premises, from one or more locations of an eligible business, including 35 at least one location at which such business conducts substantial busi- 36 ness operations and engages primarily in industrial and manufacturing 37 activities. For purposes of this subdivision, the date of relocation 38 shall be (1) the date of the completion of the relocation to the eligi- 39 ble premises or (2) ninety days from the commencement of the relocation 40 to the eligible premises, whichever is earlier. 41 (viii) "Relocation costs" means costs incurred in the relocation of 42 such furniture, fixtures, equipment, machinery and supplies, including, 43 but not limited to, the cost of dismantling and reassembling equipment 44 and the cost of floor preparation necessary for the reassembly of the 45 equipment. Relocation costs shall include only such costs that are 46 incurred during the ninety-day period immediately following the 47 commencement of the relocation to an eligible premises. Relocation costs 48 shall not include costs for structural or capital improvements or items 49 purchased in connection with the relocation. 50 (c) The credit allowed under this subdivision for any taxable year 51 shall be deemed to be an overpayment of tax by the taxpayer to be cred- 52 ited or refunded without interest, in accordance with the provisions of 53 section 11-677 of this chapter. 54 (d) The number of full-time employees for the purposes of calculating 55 an industrial business tax credit shall be the average number of full- 56 time employees, calculated on a weekly basis, employed in the eligibleS. 8474 480 1 premises by the eligible business in the fifty-two week period imme- 2 diately following the earlier of (1) the date of the completion of the 3 relocation to eligible premises or (2) ninety days from the commencement 4 of the relocation to the eligible premises. 5 (e) The credit allowed under this subdivision must be taken by the 6 taxpayer in the taxable year in which such twelve-month period selected 7 by the taxpayer ends. 8 (f) For the purposes of calculating entire net income in the taxable 9 year that an industrial business tax credit is allowed, a taxpayer must 10 add back the amount of the credit allowed under this subdivision, to the 11 extent of any relocation costs deducted in the current taxable year or a 12 prior taxable year in calculating federal taxable income. 13 (g) The credit allowed under this subdivision shall not be granted for 14 an eligible business for more than one relocation, provided, however, an 15 industrial business tax credit shall not be granted if the eligible 16 business receives benefits pursuant to chapter six-B or six-C of title 17 twenty-two of the code of the preceding municipality, through a grant 18 program administered by the business relocation assistance corporation, 19 or through the New York city printers relocation fund grant. 20 (h) The commissioner of finance is authorized to promulgate rules and 21 regulations and to prescribe forms necessary to effectuate the purposes 22 of this subdivision. 23 18. (a) If a corporation is a partner in an unincorporated business 24 taxable under chapter five of this title, and is required to include in 25 entire net income its distributive share of income, gain, loss and 26 deductions of, or guaranteed payments from, such unincorporated busi- 27 ness, such corporation shall be allowed a credit against the tax imposed 28 by this subchapter equal to the lesser of the amounts determined in 29 subparagraphs one and two of this paragraph: 30 (1) The amount determined in this subparagraph is the product of (A) 31 the sum of (i) the tax imposed by chapter five of this title on the 32 unincorporated business for its taxable year ending within or with the 33 taxable year of the corporation and paid by the unincorporated business 34 and (ii) the amount of any credit or credits taken by the unincorporated 35 business under section 11-503 of this title, except the credit allowed 36 by subdivision (b) of such section, for its taxable year ending within 37 or with the taxable year of the corporation, to the extent that such 38 credits do not reduce such unincorporated business's tax below zero, and 39 (B) a fraction, the numerator of which is the net total of the corpo- 40 ration's distributive share of income, gain, loss and deductions of, and 41 guaranteed payments from, the unincorporated business for such taxable 42 year, and the denominator of which is the sum, for such taxable year, of 43 the net total distributive shares of income, gain, loss and deductions 44 of, and guaranteed payments to, all partners in the unincorporated busi- 45 ness for whom or which such net total, as separately determined for each 46 partner, is greater than zero. 47 (2) The amount determined in this subparagraph is the product of (A) 48 the excess of (i) the tax computed under clause one of subparagraph (a) 49 of paragraph E of subdivision one of this section, without allowance of 50 any credits allowed by this section, over (ii) the tax so computed, 51 determined as if the corporation had no such distributive share or guar- 52 anteed payments with respect to the unincorporated business, and (B) a 53 fraction, the numerator of which is four and the denominator of which is 54 eight and eighty-five one-hundredths, provided, however, that the 55 amounts computed in clauses (i) and (ii) of this subparagraph shall be 56 computed with the following modifications:S. 8474 481 1 (I) such amounts shall be computed without taking into account any 2 carryforward or carryback by the partner of a net operating loss; 3 (II) if, prior to taking into account any distributive share or guar- 4 anteed payments from any unincorporated business or any net operating 5 loss carryforward or carryback, the entire net income of the partner is 6 less than zero, such entire net income shall be treated as zero; and 7 (III) if such partner's net total distributive share of income, gain, 8 loss and deductions of, and guaranteed payments from, any unincorporated 9 business is less than zero, such net total shall be treated as zero. The 10 amount determined in this subparagraph shall not be less than zero. 11 (b)(1) Notwithstanding anything to the contrary in paragraph (a) of 12 this subdivision, in the case of a corporation that, before the applica- 13 tion of this subdivision or any other credit allowed by this section, is 14 liable for the tax on entire net income under clause one of subparagraph 15 (a) of paragraph E of subdivision one of this section, the credit or the 16 sum of the credits that may be taken by such corporation for a taxable 17 year under this subdivision with respect to an unincorporated business 18 or unincorporated businesses in which it is a partner shall not exceed 19 the tax so computed, without allowance of any credits allowed by this 20 section, multiplied by a fraction the numerator of which is four and the 21 denominator of which is eight and eighty-five one-hundredths. If the 22 credit allowed under this subdivision or the sum of such credits exceeds 23 the product of such tax and such fraction, the amount of the excess may 24 be carried forward, in order, to each of the seven immediately succeed- 25 ing taxable years and, to the extent not previously taken, shall be 26 allowed as a credit in each of such years. Accordingly, the credit 27 determined for the taxable year under paragraph (a) of this subdivision 28 shall be taken before taking any credit carryforward pursuant to this 29 paragraph and the credit carryforward attributable to the earliest taxa- 30 ble year shall be taken before taking a credit carryforward attributable 31 to a subsequent taxable year. 32 (2) Notwithstanding anything to the contrary in paragraph (a) of this 33 subdivision, in the case of a corporation that, before the application 34 of this subdivision or any other credit allowed by this section, is 35 liable for the tax on entire net income plus certain salaries and other 36 compensation under clause three of subparagraph (a) of paragraph E of 37 subdivision one of this section, the maximum credit that may be taken in 38 any taxable year is the amount that will reduce the tax so computed, 39 without allowance of any credits allowed by this section, to zero. For 40 purposes of this paragraph each dollar of credit shall be applied so as 41 to reduce such tax for taxable years beginning before January first, two 42 thousand seven by sixty-six and thirty-eight one-hundredths cents; for 43 taxable years beginning on or after January first, two thousand seven 44 and before January first, two thousand eight by fifty-eight and eight 45 one-hundredths cents; for taxable years beginning on or after January 46 first, two thousand eight and before January first, two thousand nine by 47 forty-nine and seventy-eight one-hundredths cents; for taxable years 48 beginning on or after January first, two thousand nine and before Janu- 49 ary first, two thousand ten by forty-one and forty-eight one-hundredths 50 cents; and for taxable years beginning on or after January first, two 51 thousand ten by thirty-three and nineteen one-hundredths cents. If the 52 amount of credit allowed under this subdivision or the sum of such cred- 53 its exceeds the amount that may be taken against such tax, the amount of 54 the excess may be carried forward, in order, to each of the seven imme- 55 diately succeeding taxable years and, to the extent not previously 56 taken, shall be allowed as a credit in each of such years. Accordingly,S. 8474 482 1 the credit determined for the taxable year under paragraph (a) of this 2 subdivision shall be taken before taking any credit carryforward pursu- 3 ant to this paragraph and the credit carryforward attributable to the 4 earliest taxable year shall be taken before taking a credit carryforward 5 attributable to a subsequent taxable year. 6 (3) No credit allowed under this subdivision may be taken in a taxable 7 year by a taxpayer that, in the absence of such credit, would be liable 8 for the tax computed on the basis of business and investment capital 9 under clause two of subparagraph (a) of paragraph E of subdivision one 10 of this section or the fixed-dollar minimum tax under clause four of 11 subparagraph (a) of paragraph E of subdivision one of this section. No 12 credit allowed under this subdivision may be taken against the tax 13 computed on the basis of subsidiary capital under subparagraph (b) of 14 paragraph E of subdivision one of this section. 15 (c) For corporations that file a report on a combined basis pursuant 16 to subdivision four of section 11-605 of this chapter, the credit 17 allowed by this subdivision shall be computed as if the combined group 18 were the partner in each unincorporated business from which any of the 19 members of such group had a distributive share or guaranteed payments, 20 provided, however, if more than one member of the combined group is a 21 partner in the same unincorporated business, for purposes of the calcu- 22 lation required in subparagraph one of paragraph (a) of this subdivi- 23 sion, the numerator of the fraction described in clause (B) of such 24 subparagraph one shall be the sum of the net total distributive shares 25 of income, gain, loss and deductions of, and guaranteed payments from, 26 the unincorporated business of all of the partners of the unincorporated 27 business within the combined group for which such net total, as sepa- 28 rately determined for each partner, is greater than zero, and the denom- 29 inator of such fraction shall be the sum of the net total distributive 30 shares of income, gain, loss and deductions of, and guaranteed payments 31 from, the unincorporated business of all partners in the unincorporated 32 business for whom or which such net total, as separately determined for 33 each partner, is greater than zero. 34 (d) The credit allowed by this subdivision shall not be allowed to a 35 partner in an unincorporated business with respect to any tax paid by 36 the unincorporated business under chapter five of this title for any 37 taxable year beginning before July first, nineteen hundred ninety-four. 38 (e) Notwithstanding any other provision of this subchapter, the credit 39 allowable under this subdivision shall be taken prior to the taking of 40 any other credit allowed by this section. Notwithstanding any other 41 provision of this subchapter, the application of this subdivision shall 42 not change the basis on which the taxpayer's tax is computed under para- 43 graph E of subdivision one of this section. 44 19. Lower Manhattan relocation and employment assistance credit. (a) 45 In addition to any other credit allowed by this section, a taxpayer that 46 has obtained the certifications required by chapter six-C of title twen- 47 ty-two of the code of the preceding municipality shall be allowed a 48 credit against the tax imposed by this chapter. The amount of the credit 49 shall be the amount determined by multiplying three thousand dollars by 50 the number of eligible aggregate employment shares maintained by the 51 taxpayer during the taxable year with respect to eligible premises to 52 which the taxpayer has relocated; provided, however, that no credit 53 shall be allowed for the relocation of any retail activity or hotel 54 services; provided, further, that no credit shall be allowed under this 55 subdivision to any taxpayer that has elected pursuant to subdivision (d) 56 of section 22-624 of the code of the preceding municipality to take suchS. 8474 483 1 credit against a gross receipts tax imposed under chapter eleven of this 2 title. For purposes of this subdivision, the terms "eligible aggregate 3 employment shares," "eligible premises," "relocate," "retail activity" 4 and "hotel services" shall have the meanings ascribed by section 22-623 5 of the code of the preceding municipality. 6 (b) The credit allowed under this subdivision with respect to eligible 7 aggregate employment shares maintained with respect to eligible premises 8 to which the taxpayer has relocated shall be allowed for the taxable 9 year of the relocation and for any of the twelve succeeding taxable 10 years during which eligible aggregate employment shares are maintained 11 with respect to eligible premises; provided that the credit allowed for 12 the twelfth succeeding taxable year shall be calculated by multiplying 13 the number of eligible aggregate employment shares maintained with 14 respect to eligible premises in the twelfth succeeding taxable year by 15 the lesser of one and a fraction the numerator of which is such number 16 of days in the taxable year of relocation less the number of days the 17 taxpayer maintained employment shares in eligible premises in the taxa- 18 ble year of relocation and the denominator of which is the number of 19 days in such twelfth taxable year during which such eligible aggregate 20 employment shares are maintained with respect to such premises. 21 (c) Except as provided in paragraph (d) of this subdivision, if the 22 amount of the credit allowable under this subdivision for any taxable 23 year exceeds the tax imposed for such year, the excess may be carried 24 over, in order, to the five immediately succeeding taxable years and, to 25 the extent not previously deductible, may be deducted from the taxpay- 26 er's tax for such years. 27 (d) The credits allowed under this subdivision, against the tax 28 imposed by this chapter for the taxable year of the relocation and for 29 the four taxable years immediately succeeding the taxable year of such 30 relocation, shall be deemed to be overpayments of tax by the taxpayer to 31 be credited or refunded, without interest, in accordance with the 32 provisions of section 11-677 of this chapter. For such taxable years, 33 such credits or portions thereof may not be carried over to any succeed- 34 ing taxable year. 35 (e) The credit allowable under this subdivision shall be deducted 36 after the credits allowed by subdivisions seventeen and eighteen of this 37 section, but prior to the deduction of any other credit allowed by this 38 section. 39 20. Film production credit. (a)(1) allowance of credit. A taxpayer 40 which is a qualified film production company, and which is subject to 41 tax under this subchapter, shall be allowed a credit against such tax, 42 pursuant to the provisions in paragraph (c) of this subdivision, to be 43 computed as provided in this subdivision. 44 (2) The amount of the credit shall be the product of five percent and 45 the qualified production costs paid or incurred in the production of a 46 qualified film, provided that the qualified production costs, excluding 47 post production costs, paid or incurred which are attributable to the 48 use of tangible property or the performance of services at a qualified 49 film production facility in the production of such qualified film equal 50 or exceed seventy-five percent of the production costs, excluding post 51 production costs, paid or incurred which are attributable to the use of 52 tangible property or the performance of services at any film production 53 facility within and without the city of Staten Island in the production 54 of such qualified film. However, if the qualified production costs, 55 excluding post production costs, which are attributable to the use of 56 tangible property or the performance of services at a qualified filmS. 8474 484 1 production facility in the production of such qualified film are less 2 than three million dollars, then the portion of the qualified production 3 costs attributable to the use of tangible property or the performance of 4 services in the production of such qualified film outside of a qualified 5 film production facility shall be allowed only if the shooting days 6 spent in the city of Staten Island outside of a film production facility 7 in the production of such qualified film equal or exceed seventy-five 8 percent of the total shooting days spent within and without the city of 9 Staten Island outside of a film production facility in the production of 10 such qualified film. The credit shall be allowed for the taxable year in 11 which the production of such qualified film is completed. 12 (3) No qualified production costs used by a taxpayer either as the 13 basis for the allowance of the credit provided for under this subdivi- 14 sion or used in the calculation of the credit provided for under this 15 subdivision shall be used by such taxpayer to claim any other credit 16 allowed pursuant to this title. 17 (b) Definitions. As used in this subdivision, the following terms 18 shall have the following meanings: 19 (1) "Qualified production costs" means production costs only to the 20 extent such costs are attributable to the use of tangible property or 21 the performance of services within the city of New York directly and 22 predominantly in the production, including pre-production and post 23 production, of a qualified film. 24 (2) "Production costs" means any costs for tangible property used and 25 services performed directly and predominantly in the production, includ- 26 ing pre-production and post production, of a qualified film. 27 "Production costs" shall not include (i) costs for a story, script or 28 scenario to be used for a qualified film and (ii) wages or salaries or 29 other compensation for writers, directors, including music directors, 30 producers and performers, other than background actors with no scripted 31 lines. "Production costs" generally include technical and crew 32 production costs, such as expenditures for film production facilities, 33 or any part thereof, props, makeup, wardrobe, film processing, camera, 34 sound recording, set construction, lighting, shooting, editing and 35 meals. 36 (3) "Qualified film" means a feature-length film, television film, 37 television pilot and/or each episode of a television series, regardless 38 of the medium by means of which the film, pilot or episode is created or 39 conveyed. "Qualified film" shall not include (i) a documentary film, 40 news or current affairs program, interview or talk program, "how-to" 41 (i.e., instructional) film or program, film or program consisting prima- 42 rily of stock footage, sporting event or sporting program, game show, 43 award ceremony, film or program intended primarily for industrial, 44 corporate or institutional end-users, fundraising film or program, 45 daytime drama (i.e., daytime "soap opera"), commercials, music videos or 46 "reality" program, or (ii) a production for which records are required 47 under section 2257 of title 18, United States code, to be maintained 48 with respect to any performer in such production, reporting of books, 49 films, etc. with respect to sexually explicit conduct. 50 (4) "Film production facility" shall mean a building and/or complex of 51 buildings and their improvements and associated back-lot facilities in 52 which films are or are intended to be regularly produced and which 53 contain at least one sound stage. 54 (5) "Qualified film production facility" shall mean a film production 55 facility in the city of Staten Island, which contains at least one soundS. 8474 485 1 stage having a minimum of seven thousand square feet of contiguous 2 production space. 3 (6) "Qualified film production company" shall mean a corporation which 4 is principally engaged in the production of a qualified film and 5 controls the qualified film during production. 6 (c) Application of credit. (1) The credit allowed under this subdivi- 7 sion for any taxable year shall not reduce the tax due for such year to 8 less than the amount prescribed in clause four of subparagraph (a) of 9 paragraph E of subdivision one of this section. Provided, however, that 10 if the amount of the credit allowable under this subdivision for any 11 taxable year reduces the tax to such amount, fifty percent of the excess 12 shall be treated as an overpayment of tax to be credited or refunded in 13 accordance with the provisions of section 11-677 of this chapter; 14 provided, however, the provisions of section 11-679 of this chapter 15 notwithstanding, no interest shall be paid thereon. The balance of such 16 credit not credited or refunded in such taxable year may be carried over 17 to the immediately succeeding taxable year and may be credited against 18 the taxpayer's tax for such year. The excess, if any, of the amount of 19 the credit over the tax for such succeeding year shall be treated as an 20 overpayment of tax to be credited or refunded in accordance with the 21 provisions of section 11-677 of this chapter. Provided, however, the 22 provisions of section 11-679 of this chapter notwithstanding, no inter- 23 est shall be paid thereon. 24 (2) Notwithstanding anything contained in this section to the contra- 25 ry, the credit provided by this subdivision shall be allowed against the 26 taxes authorized by this chapter for the taxable year after reduction by 27 all other credits permitted by this chapter. 28 21. Biotechnology credit. (a) (1) A taxpayer that is a qualified 29 emerging technology company, engages in biotechnologies, and meets the 30 eligibility requirements of this subdivision, shall be allowed a credit 31 against the tax imposed by this subchapter. The amount of credit shall 32 be equal to the sum of the amounts specified in subparagraphs three, 33 four, and five of this paragraph, subject to the limitations in subpara- 34 graph seven of this paragraph and paragraph (b) of this subdivision. For 35 the purposes of this subdivision, "qualified emerging technology compa- 36 ny" shall mean a company located in a city: (A) whose primary products 37 or services are classified as emerging technologies and whose total 38 annual product sales are ten million dollars or less; or (B) a company 39 that has research and development activities in city and whose ratio of 40 research and development funds to net sales equals or exceeds the aver- 41 age ratio for all surveyed companies classified as determined by the 42 National Science Foundation in the most recent published results from 43 its Survey of Industry Research and Development, or any comparable 44 successor survey as determined by the department, and whose total annual 45 product sales are ten million dollars or less. For the purposes of this 46 subdivision, the definition of research and development funds shall be 47 the same as that used by the National Science Foundation in the afore- 48 mentioned survey. For the purposes of this subdivision, "biotechnolo- 49 gies" shall mean the technologies involving the scientific manipulation 50 of living organisms, especially at the molecular and/or the sub-molecu- 51 lar genetic level, to produce products conducive to improving the lives 52 and health of plants, animals, and humans; and the associated scientific 53 research, pharmacological, mechanical, and computational applications 54 and services connected with these improvements. Activities included with 55 such applications and services shall include, but not be limited to, 56 alternative mRNA splicing, DNA sequence amplification, antigeneticS. 8474 486 1 switching bioaugmentation, bioenrichment, bioremediation, chromosome 2 walking, cytogenetic engineering, DNA diagnosis, fingerprinting, and 3 sequencing, electroporation, gene translocation, genetic mapping, site- 4 directed mutagenesis, bio-transduction, bio-mechanical and bio-electri- 5 cal engineering, and bio-informatics. 6 (2) An eligible taxpayer shall (A) have no more than one hundred full- 7 time employees, of which at least seventy-five percent are employed in 8 the city, (B) have a ratio of research and development funds to net 9 sales, as referred to in section thirty-one hundred two-e of the public 10 authorities law, which equals or exceeds six percent during the calendar 11 year ending with or within the taxable year for which the credit is 12 claimed, and (C) have gross revenues, along with the gross revenues of 13 its "affiliates" and "related members" not exceeding twenty million 14 dollars for the calendar year immediately preceding the calendar year 15 ending with or within the taxable year for which the credit is claimed. 16 For the purposes of this subdivision, "affiliates" shall mean those 17 corporations that are members of the same affiliated group, as defined 18 in section fifteen hundred four of the internal revenue code, as the 19 taxpayer. For the purposes of this subdivision, the term "related 20 members" shall mean a person, corporation, or other entity, including an 21 entity that is treated as a partnership or other pass-through vehicle 22 for purposes of federal taxation, whether such person, corporation or 23 entity is a taxpayer or not, where one such person, corporation or enti- 24 ty, or set of related persons, corporations or entities, directly or 25 indirectly owns or controls a controlling interest in another entity. 26 Such entity or entities may include all taxpayers under chapters five, 27 eleven and seventeen of this title, and subchapters two and three of 28 this chapter. A controlling interest shall mean, in the case of a corpo- 29 ration, either thirty percent or more of the total combined voting power 30 of all classes of stock of such corporation, or thirty percent or more 31 of the capital, profits or beneficial interest in such voting stock of 32 such corporation; and in the case of a partnership, association, trust 33 or other entity, thirty percent or more of the capital, profits or bene- 34 ficial interest in such partnership, association, trust or other entity. 35 (3) An eligible taxpayer shall be allowed a credit for eighteen per 36 centum of the cost or other basis for federal income tax purposes of 37 research and development property that is acquired by the taxpayer by 38 purchase as defined in subdivision (d) of section one hundred seventy- 39 nine of the internal revenue code and placed in service during the 40 calendar year that ends with or within the taxable year for which the 41 credit is claimed. Provided, however, for the purposes of this paragraph 42 only, an eligible taxpayer shall be allowed a credit for such percentage 43 of the (A) cost or other basis for federal income tax purposes for prop- 44 erty used in the testing or inspection of materials and products, (B) 45 the costs or expenses associated with quality control of the research 46 and development, (C) fees for use of sophisticated technology facilities 47 and processes, and (D) fees for the production or eventual commercial 48 distribution of materials and products resulting from the activities of 49 an eligible taxpayer as long as such activities fall under activities 50 relating to biotechnologies. The costs, expenses and other amounts for 51 which a credit is allowed and claimed under this paragraph shall not be 52 used in the calculation of any other credit allowed under this subchap- 53 ter. For the purposes of this subdivision, "research and development 54 property" shall mean property that is used for purposes of research and 55 development in the experimental or laboratory sense. Such purposes shall 56 not be deemed to include the ordinary testing or inspection of materialsS. 8474 487 1 or products for quality control, efficiency surveys, management studies, 2 consumer surveys, advertising, promotions, or research in connection 3 with literary, historical or similar projects. 4 (4) An eligible taxpayer shall be allowed a credit for nine per centum 5 of qualified research expenses paid or incurred by the taxpayer in the 6 calendar year that ends with or within the taxable year for which the 7 credit is claimed. For the purposes of this subdivision, "qualified 8 research expenses" shall mean expenses associated with in-house research 9 and processes, and costs associated with the dissemination of the 10 results of the products that directly result from such research and 11 development activities; provided, however, that such costs shall not 12 include advertising or promotion through media. In addition, costs asso- 13 ciated with the preparation of patent applications, patent application 14 filing fees, patent research fees, patent examinations fees, patent post 15 allowance fees, patent maintenance fees, and grant application expenses 16 and fees shall qualify as qualified research expenses. In no case shall 17 the credit allowed under this subparagraph apply to expenses for liti- 18 gation or the challenge of another entity's intellectual property 19 rights, or for contract expenses involving outside paid consultants. 20 (5) An eligible taxpayer shall be allowed a credit for qualified high- 21 technology training expenditures as described in this subparagraph paid 22 or incurred by the taxpayer during the calendar year that ends with or 23 within the taxable year for which the credit is claimed. 24 (A) The amount of credit shall be one hundred percent of the training 25 expenses described in clause (C) of this subparagraph, subject to a 26 limitation of no more than four thousand dollars per employee per calen- 27 dar year for such training expenses. 28 (B) Qualified high-technology training shall include a course or 29 courses taken and satisfactorily completed by an employee of the taxpay- 30 er at an accredited, degree granting post-secondary college or universi- 31 ty in a city that (i) directly relates to biotechnology activities, and 32 (ii) is intended to upgrade, retrain or improve the productivity or 33 theoretical awareness of the employee. Such course or courses may 34 include, but are not limited to, instruction or research relating to 35 techniques, meta, macro, or micro-theoretical or practical knowledge 36 bases or frontiers, or ethical concerns related to such activities. Such 37 course or courses shall not include classes in the disciplines of 38 management, accounting or the law or any class designed to fulfill the 39 discipline specific requirements of a degree program at the associate, 40 baccalaureate, graduate or professional level of these disciplines. 41 Satisfactory completion of a course or courses shall mean the earning 42 and granting of credit or equivalent unit, with the attainment of a 43 grade of "B" or higher in a graduate level course or courses, a grade of 44 "C" or higher in an undergraduate level course or courses, or a similar 45 measure of competency for a course that is not measured according to a 46 standard grade formula. 47 (C) Qualified high-technology training expenditures shall include 48 expenses for tuition and mandatory fees, software required by the insti- 49 tution, fees for textbooks or other literature required by the institu- 50 tion offering the course or courses, minus applicable scholarships and 51 tuition or fee waivers not granted by the taxpayer or any affiliates of 52 the taxpayer, that are paid or reimbursed by the taxpayer. Qualified 53 high-technology expenditures do not include room and board, computer 54 hardware or software not specifically assigned for such course or cours- 55 es, late-charges, fines or membership dues and similar expenses. Such 56 qualified expenditures shall not be eligible for the credit provided byS. 8474 488 1 this section unless the employee for whom the expenditures are disbursed 2 is continuously employed by the taxpayer in a full-time, full-year posi- 3 tion primarily located at a qualified site during the period of such 4 coursework and lasting through at least one hundred eighty days after 5 the satisfactory completion of the qualifying course-work. Qualified 6 high-technology training expenditures shall not include expenses for 7 in-house or shared training outside of a city higher education institu- 8 tion or the use of consultants outside of credit granting courses, 9 whether such consultants function inside of such higher education insti- 10 tution or not. 11 (D) If a taxpayer relocates from an academic business incubator facil- 12 ity partnered with an accredited post-secondary education institution 13 located within city, which provides space and business support services 14 to taxpayers, to another site, the credit provided in this subdivision 15 shall be allowed for all expenditures referenced in clause (C) of this 16 subparagraph paid or incurred in the two preceding calendar years that 17 the taxpayer was located in such an incubator facility for employees of 18 the taxpayer who also relocate from said incubator facility to such city 19 site and are employed and primarily located by the taxpayer in city. 20 Such expenditures in the two preceding years shall be added to the 21 amounts otherwise qualifying for the credit provided by this subdivision 22 that were paid or incurred in the calendar year that the taxpayer relo- 23 cates from such a facility. Such expenditures shall include expenses 24 paid for an eligible employee who is a full-time, full-year employee of 25 said taxpayer during the calendar year that the taxpayer relocated from 26 an incubator facility notwithstanding (i) that such employee was 27 employed full or part-time as an officer, staff-person or paid intern of 28 the taxpayer when such taxpayer was located at such incubator facility 29 or (ii) that such employee was not continuously employed when such 30 taxpayer was located at the incubator facility during the one hundred 31 eighty day period referred to in clause (C) of this subparagraph, 32 provided such employee received wages or equivalent income for at least 33 seven hundred fifty hours during any twenty-four month period when the 34 taxpayer was located at the incubator facility. Such expenditures shall 35 include payments made to such employee after the taxpayer has relocated 36 from the incubator facility for qualified expenditures if such payments 37 are made to reimburse an employee for expenditures paid by the employee 38 during such two preceding years. The credit provided under this para- 39 graph shall be allowed in any taxable year that the taxpayer qualifies 40 as an eligible taxpayer. 41 (E) For purposes of this subdivision the term "academic year" shall 42 mean the annual period of sessions of a post-secondary college or 43 university. 44 (F) For the purposes of this subdivision the term "academic incubator 45 facility" shall mean a facility providing low-cost space, technical 46 assistance, support services and educational opportunities, including 47 but not limited to central services provided by the manager of the 48 facility to the tenants of the facility, to an entity located in city. 49 Such entity's primary activity must be in biotechnologies, and such 50 entity must be in the formative stage of development. The academic incu- 51 bator facility and the entity must act in partnership with an accredited 52 post-secondary college or university located in city. An academic incu- 53 bator facility's mission shall be to promote job creation, entrepreneur- 54 ship, technology transfer, and provide support services to incubator 55 tenants, including, but not limited to, business planning, managementS. 8474 489 1 assistance, financial-packaging, linkages to financing services, and 2 coordinating with other sources of assistance. 3 (6) An eligible taxpayer may claim credits under this subdivision for 4 three consecutive years. In no case shall the credit allowed by this 5 subdivision to a taxpayer exceed two hundred fifty thousand dollars per 6 calendar year for eligible expenditures made during such calendar year. 7 (7) The credit allowed under this subdivision for any taxable year 8 shall not reduce the tax due for such year to less than the amount 9 prescribed in clause four of subparagraph (a) of paragraph E of subdivi- 10 sion one of this section. Provided, however, if the amount of credit 11 allowed under this subdivision for any taxable year reduces the tax to 12 such amount, any amount of credit not deductible in such taxable year 13 shall be treated as an overpayment of tax to be credited or refunded in 14 accordance with the provisions of section 11-677 of this chapter; 15 provided, however, that notwithstanding the provisions of section 11-679 16 of this chapter, no interest shall be paid thereon. 17 (8) The credit allowed under this subdivision shall only be allowed 18 for taxable years beginning on or after January first, two thousand ten 19 and before January first, two thousand nineteen. 20 (b) (1) The percentage of the credit allowed to a taxpayer under this 21 subdivision in any calendar year shall be: 22 (A) If the average number of individuals employed full time by a 23 taxpayer in the city during the calendar year that ends with or within 24 the taxable year for which the credit is claimed is at least one hundred 25 five percent of the taxpayer's base year employment, one hundred 26 percent, except that in no case shall the credit allowed under this 27 clause exceed two hundred fifty thousand dollars per calendar year. 28 Provided, however, the increase in base year employment shall not apply 29 to a taxpayer allowed a credit under this subdivision that was, (i) 30 located outside of the city, (ii) not doing business, or (iii) did not 31 have any employees, in the year preceding the first year that the credit 32 is claimed. Any such taxpayer shall be eligible for one hundred percent 33 of the credit for the first calendar year that ends with or within the 34 taxable year for which the credit is claimed, provided that such taxpay- 35 er locates in the city, begins doing business in the city or hires 36 employees in the city during such calendar year and is otherwise eligi- 37 ble for the credit pursuant to the provisions of this subdivision. 38 (B) If the average number of individuals employed full time by a 39 taxpayer in the city during the calendar year that ends with or within 40 the taxable year for which the credit is claimed is less than one 41 hundred five percent of the taxpayer's base year employment, fifty 42 percent, except that in no case shall the credit allowed under this 43 clause exceed one hundred twenty-five thousand dollars per calendar 44 year. In the case of an entity located in city receiving space and busi- 45 ness support services by an academic incubator facility, if the average 46 number of individuals employed full time by such entity in the city 47 during the calendar year in which the credit allowed under this subdivi- 48 sion is claimed is less than one hundred five percent of the taxpayer's 49 base year employment, the credit shall be zero. 50 (2) For the purposes of this subdivision, "base year employment" means 51 the average number of individuals employed full-time by the taxpayer in 52 the city in the year preceding the first calendar year that ends with or 53 within the taxable year for which the credit is claimed. 54 (3) For the purposes of this subdivision, average number of individ- 55 uals employed full-time shall be computed by adding the number of such 56 individuals employed by the taxpayer at the end of each quarter duringS. 8474 490 1 each calendar year or other applicable period and dividing the sum so 2 obtained by the number of such quarters occurring within such calendar 3 year or other applicable period. 4 (4) Notwithstanding anything contained in this section to the contra- 5 ry, the credit provided by this subdivision shall be allowed against the 6 taxes authorized by this chapter for the taxable year after reduction by 7 all other credits permitted by this chapter. 8 22. Beer production credit. (a) A taxpayer subject to tax under this 9 subchapter, that is registered as a distributor under article eighteen 10 of the tax law, and that produces sixty million or fewer gallons of beer 11 in this state in the taxable year, shall be allowed a credit against the 12 tax imposed by this subchapter in the amount specified in paragraph (b) 13 of this subdivision. Provided, however, that no credit shall be allowed 14 for any beer produced in excess of fifteen million five hundred thousand 15 gallons in the taxable year. Notwithstanding anything in this title to 16 the contrary, if a partnership is allowed a credit under subdivision (p) 17 of section 11-503 of this title, a taxpayer that is a partner in such 18 partnership shall not be allowed a credit under this subdivision for any 19 taxable year that includes the last day of the taxable year for which 20 the partnership is allowed such credit. 21 (b) The amount of the credit per taxpayer per taxable year for each 22 gallon of beer produced in the city of New York on or after January 23 first, two thousand seventeen shall be determined as follows: 24 (1) for the first five hundred thousand gallons of beer produced in 25 the city of New York in the taxable year, the credit shall equal twelve 26 cents per gallon; and 27 (2) for each gallon of beer produced in the city of New York in the 28 taxable year in excess of five hundred thousand gallons, the credit 29 shall equal three and eighty-six one-hundredths cents per gallon. In no 30 event shall the credit allowed under this subdivision for any taxable 31 year reduce the tax due for such year to less than the amount prescribed 32 in clause four of subparagraph (a) of paragraph E of subdivision one of 33 this section. However, if the amount of credit allowed under this subdi- 34 vision for any taxable year reduces the tax to such amount, any amount 35 of credit thus not deductible in such taxable year shall be treated as 36 an overpayment of tax to be credited or refunded in accordance with the 37 provisions of section 11-677 of this chapter; provided, however, that 38 notwithstanding the provisions of section 11-679 of this chapter, no 39 interest shall be paid thereon. 40 23. Credit for the provision of child care. In addition to any other 41 credit allowed under this section, a taxpayer whose application for a 42 credit authorized by section 11-144 of this title has been approved by 43 the department of finance shall be allowed a credit against the tax 44 imposed by this chapter. The amount of the credit shall be determined as 45 provided in such section. To the extent the amount of the credit allowed 46 by this subdivision exceeds the amount of tax due pursuant to this 47 subchapter, as calculated without such credit, such excess amount shall 48 be treated as an overpayment of tax to be credited or refunded in 49 accordance with the provisions of section 11-677 of this chapter, 50 provided, however, that notwithstanding the requirements of section 51 11-679 of this chapter to the contrary, no interest shall be paid there- 52 on. 53 § 11-605 Reports. 1. Every corporation having an officer, agent or 54 representative within the city, shall annually on or before March 55 fifteenth, transmit to the commissioner of finance a report in a form 56 prescribed by the commissioner, except that a corporation which reportsS. 8474 491 1 on the basis of a fiscal year shall transmit its report within two and 2 one-half months after the close of its fiscal year, setting forth such 3 information as the commissioner of finance may prescribe and every 4 taxpayer which ceases to do business in the city or to be subject to the 5 tax imposed by this subchapter shall transmit to the commissioner of 6 finance a report on the date of such cessation or at such other time as 7 the commissioner may require covering each year or period for which no 8 report was theretofore filed. Every taxpayer shall also transmit such 9 other reports and such facts and information as the commissioner of 10 finance may require in the administration of this subchapter. The 11 commissioner of finance may grant a reasonable extension of time for 12 filing reports whenever good cause exists. 13 With respect to taxable years ending prior to December thirty-first, 14 nineteen hundred sixty-six, the returns required to be made and filed 15 pursuant to this section shall be made and filed on or before the 16 fifteenth day of the third month following the close of such taxable 17 year or September eleventh, nineteen hundred sixty-six, whichever is 18 later. 19 An automatic extension of six months for the filing of its annual 20 report shall be allowed any taxpayer if, within the time prescribed by 21 either of the preceding paragraphs, whichever is applicable, such 22 taxpayer files with the commissioner of finance an application for 23 extension in such form as the commissioner may prescribe by regulation 24 and pays on or before the date of such filing the amount properly esti- 25 mated as its tax. 26 2. Every report shall have annexed thereto a certification by the 27 president, vice-president, treasurer, assistant treasurer, chief 28 accounting officer or another officer of the taxpayer duly authorized so 29 to act to the effect that the statements contained therein are true. In 30 the case of an association, within the meaning of paragraph three of 31 section (a) of section seventy-seven hundred one of the internal revenue 32 code, a publicly-traded partnership treated as a corporation for 33 purposes of the internal revenue code pursuant to section seventy-seven 34 hundred four thereof and any business conducted by a trustee or trustees 35 wherein interest or ownership is evidenced by certificates or other 36 written instruments, such certification shall be made by any person duly 37 authorized so to act on behalf of such association, publicly-traded 38 partnership or business. The fact that an individual's name is signed on 39 a certification of the report shall be prima facie evidence that such 40 individual is authorized to sign and certify the report on behalf of the 41 corporation. Blank forms of reports shall be furnished by the commis- 42 sioner of finance, on application, but failure to secure such a blank 43 shall not release any corporation from the obligation of making any 44 report required by this subchapter. 45 2-a. The commissioner of finance may prescribe regulations and 46 instructions requiring returns of information to be made and filed in 47 conjunction with the reports required to be filed pursuant to this 48 section, relating to payments made to shareholders owning, directly or 49 indirectly, individually or in the aggregate, more than fifty percent of 50 the issued capital stock of the taxpayer, where such payments are treat- 51 ed as payments of interest in the computation of entire net income 52 reported on such reports. 53 3. If the amount of taxable income, alternative minimum taxable income 54 or other basis of tax for any year of any taxpayer, or of any sharehold- 55 er of any taxpayer which has elected to be taxed under subchapter s of 56 chapter one of the internal revenue code or of any shareholder of anyS. 8474 492 1 taxpayer with respect to which an election has been made to be treated 2 as a qualified subchapter s subsidiary under paragraph three of 3 subsection (b) of section thirteen hundred sixty-one of the internal 4 revenue code, as returned to the United States treasury department or 5 the New York state commissioner of taxation and finance is changed or 6 corrected by the commissioner of internal revenue or other officer of 7 the United States or the New York state commissioner of taxation and 8 finance or other competent authority, or where a renegotiation of a 9 contract or subcontract with the United States or the state of New York 10 results in a change in taxable income, alternative minimum taxable 11 income or other basis of tax, or where a recovery of a war loss results 12 in a computation or recomputation of any tax imposed by the United 13 States or the state of New York, or if a taxpayer or such shareholder of 14 a taxpayer, pursuant to subsection (d) of section sixty-two hundred 15 thirteen of the internal revenue code, executes a notice of waiver of 16 the restrictions provided in subsection (a) of said section, or if a 17 taxpayer, or such shareholder of a taxpayer, pursuant to subsection (f) 18 of section one thousand eighty-one of the tax law, executes a notice of 19 waiver of the restrictions provided in subsection (c) of said section, 20 such taxpayer shall report such changed or corrected taxable income, 21 alternative minimum taxable income or other basis of tax, or the results 22 of such renegotiation, or such computation, or recomputation, or such 23 execution of such notice of waiver and the changes or corrections of the 24 taxpayer's federal or New York state taxable income, alternative minimum 25 taxable income or other basis of tax on which it is based, within ninety 26 days, or one hundred twenty days, in the case of a taxpayer making a 27 combined report under this subchapter for such year, after such 28 execution or the final determination of such change or correction or 29 renegotiation, or such computation, or recomputation, or as required by 30 the commissioner of finance, and shall concede the accuracy of such 31 determination or state wherein it is erroneous. The allowance of a 32 tentative carryback adjustment based upon a net operating loss carryback 33 or net capital loss carryback pursuant to section sixty-four hundred 34 eleven of the internal revenue code shall be treated as a final determi- 35 nation for purposes of this subdivision. Any taxpayer filing an amended 36 return with such department shall also file within ninety days thereaft- 37 er an amended report with the commissioner of finance. 38 4. (a) Any taxpayer which owns or controls either directly or indi- 39 rectly substantially all the capital stock of one or more other corpo- 40 rations, or substantially all the capital stock of which is owned or 41 controlled either directly or indirectly by one or more other corpo- 42 rations or by interests which own or control either directly or indi- 43 rectly substantially all the capital stock of one or more other corpo- 44 rations, hereinafter referred to in this paragraph as "related 45 corporations", shall make a combined report covering any related corpo- 46 rations if there are substantial intercorporate transactions among the 47 related corporations, regardless of the transfer price for such inter- 48 corporate transactions. It is not necessary that there be substantial 49 intercorporate transactions between any one corporation and every other 50 related corporation. It is necessary, however, that there be substantial 51 intercorporate transactions between the taxpayer and a related corpo- 52 ration or, collectively, a group of such related corporations. The 53 report shall set forth such information as the commissioner of finance 54 may require. 55 In determining whether there are substantial intercorporate trans- 56 actions, the commissioner shall consider and evaluate all activities andS. 8474 493 1 transactions of the taxpayer and its related corporations. Activities 2 and transactions that will be considered include, but are not limited 3 to: manufacturing, acquiring goods or property, or performing services, 4 for related corporations; selling goods acquired from related corpo- 5 rations; financing sales of related corporations; performing related 6 customer services using common facilities and employees for related 7 corporations; incurring expenses that benefit, directly or indirectly, 8 one or more related corporations; and transferring assets, including 9 such assets as accounts receivable, patents or trademarks from one or 10 more related corporations. 11 (1) No taxpayer may be permitted to make a report on a combined basis 12 covering any such other corporations where such taxpayer or any such 13 other corporation allocates in accordance with clause (A) of subpara- 14 graph six of paragraph (a) of subdivision three of section 11-604 of 15 this subchapter and such taxpayer or any such other corporation does not 16 so allocate. 17 (2) No taxpayer may be permitted to make a report on a combined basis 18 covering any such other corporations where such taxpayer or any such 19 other corporation allocates in accordance with subparagraph seven of 20 paragraph (a) of subdivision three of section 11-604 of this subchapter 21 and such taxpayer or any such other corporation does not so allocate. 22 (3) Except as provided in the first undesignated paragraph of this 23 subdivision, no combined report covering any corporation not a taxpayer 24 shall be required unless the commissioner of finance deems such a report 25 necessary, because of inter-company transactions or some agreement, 26 understanding, arrangement or transaction referred to in subdivision 27 five of this section, in order properly to reflect the tax liability 28 under this subchapter. 29 (4) A corporation organized under the laws of a country other than the 30 United States shall not be required or permitted to make a report on a 31 combined basis. 32 (5)(i) For purposes of this subparagraph, the term "closest control- 33 ling stockholder" means the corporation that indirectly owns or controls 34 over fifty percent of the voting stock of a captive REIT or captive RIC, 35 is subject to tax under this subchapter or otherwise required to be 36 included in a combined report under this subchapter, and is the fewest 37 tiers of corporations away in the ownership structure from the captive 38 REIT or captive RIC. The commissioner is authorized to prescribe by 39 regulation or published guidance the criteria for determining the clos- 40 est controlling stockholder. 41 (ii) A captive REIT or a captive RIC must be included in a combined 42 report with the corporation that directly owns or controls over fifty 43 percent of the voting stock of the captive REIT or captive RIC if that 44 corporation is subject to tax or required to be included in a combined 45 report under this subchapter. 46 (iii) If over fifty percent of the voting stock of a captive REIT or 47 captive RIC is not directly owned or controlled by a corporation that is 48 subject to tax or required to be included in a combined report under 49 this subchapter, then the captive REIT or captive RIC must be included 50 in a combined report with the corporation that is the closest control- 51 ling stockholder of the captive REIT or captive RIC. If the closest 52 controlling stockholder of the captive REIT or captive RIC is subject to 53 tax or otherwise required to be included in a combined report under this 54 subchapter, then the captive REIT or captive RIC must be included in a 55 combined report under this subchapter.S. 8474 494 1 (iv) If the corporation that directly owns or controls the voting 2 stock of the captive REIT or captive RIC is described in subparagraph 3 one, two or four of this paragraph as a corporation not permitted to 4 make a combined report, then the provisions in clause (iii) of this 5 subparagraph must be applied to determine the corporation in whose 6 combined report the captive REIT or captive RIC should be included. If, 7 under clause (iii) of this subparagraph, the corporation that is the 8 closest controlling stockholder of the captive REIT or captive RIC is 9 described in subparagraph one, two or four of this paragraph as a corpo- 10 ration not permitted to make a combined report, then that corporation is 11 deemed to not be in the ownership structure of the captive REIT or 12 captive RIC, and the closest controlling stockholder will be determined 13 without regard to that corporation. 14 (v) If a captive REIT owns the stock of a qualified REIT subsidiary, 15 as defined in paragraph two of subsection (i) of section eight hundred 16 fifty-six of the internal revenue code, then the qualified REIT subsid- 17 iary must be included in a combined report with the captive REIT. 18 (vi) If a captive REIT or a captive RIC is required under this subpar- 19 agraph to be included in a combined report with another corporation, and 20 that other corporation is also required to be included in a combined 21 report with another related corporation or corporations under this para- 22 graph, then the captive REIT or the captive RIC must be included in that 23 combined report with those corporations. 24 (vii) If a captive REIT or a captive RIC is not required to be 25 included in a combined report with another corporation under clause (ii) 26 or (iii) of this subparagraph, or in a combined return under the 27 provisions of subparagraph (v) of paragraph two of subdivision (f) of 28 section 11-646 of this chapter, then the captive REIT or captive RIC is 29 subject to the opening provisions of this paragraph and the provisions 30 of subparagraph three of this paragraph. The captive REIT or captive RIC 31 must be included in a combined report under this subchapter with another 32 corporation if either the substantial intercorporate transactions 33 requirement in the opening provisions of this paragraph or the inter- 34 company transactions or agreement, understanding, arrangement or trans- 35 action requirement of subparagraph three of this paragraph is satisfied 36 and more than fifty percent of the voting stock of the captive REIT or 37 the captive RIC and substantially all of the capital stock of that other 38 corporation are owned and controlled, directly or indirectly, by the 39 same corporation. 40 (b)(1)(i) In the case of a combined report the tax shall be measured 41 by the combined entire net income or combined capital of all the corpo- 42 rations included in the report, including any captive REIT or captive 43 RIC; provided, however, in no event shall the tax measured by combined 44 capital exceed the limitation provided for in paragraph F of subdivision 45 one of section 11-604 of this subchapter. 46 (ii) In the case of a captive REIT or captive RIC required under this 47 subdivision to be included in a combined report, entire net income must 48 be computed as required under subdivision seven, in the case of a 49 captive REIT, or subdivision eight, in the case of a captive RIC, of 50 section 11-603 of this chapter. However, the deduction under the inter- 51 nal revenue code for dividends paid by the captive REIT or captive RIC 52 to any member of the affiliated group that includes the corporation that 53 directly or indirectly owns over fifty percent of the voting stock of 54 the captive REIT or captive RIC shall not be allowed for taxable years 55 beginning on or after January first, two thousand nine. The term "affil- 56 iated group" means "affiliated group" as defined in section fifteenS. 8474 495 1 hundred four of the internal revenue code, but without regard to the 2 exceptions provided for in subsection (b) of that section. 3 (2) In computing combined entire net income intercorporate dividends 4 shall be eliminated, in computing combined business and investment capi- 5 tal intercorporate stock holdings and intercorporate bills, notes and 6 accounts receivable and payable and other intercorporate indebtedness 7 shall be eliminated and in computing combined subsidiary capital inter- 8 corporate stockholdings shall be eliminated. 9 5. In case it shall appear to the commissioner of finance that any 10 agreement, understanding or arrangement exists between the taxpayer and 11 any other corporation or any person or firm, whereby the activity, busi- 12 ness, income or capital of the taxpayer within the city is improperly or 13 inaccurately reflected, the commissioner of finance is authorized and 14 empowered, in its discretion and in such manner as it may determine, to 15 adjust items of income, deductions and capital, and to eliminate assets 16 in computing any allocation percentage provided only that any income 17 directly traceable thereto be also excluded from entire net income, so 18 as equitably to determine the tax. Where (a) any taxpayer conducts its 19 activity or business under any agreement, arrangement or understanding 20 in such manner as either directly or indirectly to benefit its members 21 or stockholders, or any of them, or any person or persons directly or 22 indirectly interested in such activity or business, by entering into any 23 transaction at more or less than a fair price which, but for such agree- 24 ment, arrangement or understanding, might have been paid or received 25 therefor, or (b) any taxpayer, a substantial portion of whose capital 26 stock is owned either directly or indirectly by another corporation, 27 enters into any transaction with such other corporation on such terms as 28 to create an improper loss or net income, the commissioner of finance 29 may include in the entire net income of the taxpayer the fair profits, 30 which, but for such agreement, arrangement or understanding, the taxpay- 31 er might have derived from such transaction. 32 6. An action may be brought at any time by the corporation counsel at 33 the instance of the commissioner of finance to compel the filing of 34 reports due under this subchapter. 35 7. Reports shall be preserved for five years, and thereafter until the 36 commissioner of finance orders them to be destroyed. 37 8. Where the state tax commission changes or corrects a taxpayer's 38 sales and compensating use tax liability with respect to the purchase or 39 use of items for which a sales or compensating use tax credit against 40 the tax imposed by this chapter was claimed, the taxpayer shall report 41 such change or correction to the commissioner of finance within ninety 42 days of the final determination of such change or correction, or as 43 required by the commissioner of finance, and shall concede the accuracy 44 of such determination or state wherein it is erroneous. Any taxpayer 45 filing an amended return or report relating to the purchase or use of 46 such items shall also file within ninety days thereafter a copy of such 47 amended return or report with the commissioner of finance. 48 § 11-606 Payment and lien of tax. 1. To the extent the tax imposed by 49 section 11-603 of this subchapter shall not have been previously paid 50 pursuant to section 11-608 of this subchapter, 51 (a) such tax, or the balance thereof, shall be payable to the commis- 52 sioner of finance in full at the time the report is required to be 53 filed, and 54 (b) such tax, or the balance thereof, imposed on any taxpayer which 55 ceases to do business in the city or to be subject to the tax imposed by 56 this subchapter shall be payable to the commissioner of finance at theS. 8474 496 1 time the report is required to be filed; all other taxes of any such 2 taxpayer, which pursuant to the provisions of this section would other- 3 wise be payable subsequent to the time such report is required to be 4 filed, shall nevertheless be payable at such time. 5 If the taxpayer, within the time prescribed by section 11-605 of this 6 subchapter, shall have applied for an automatic extension of time to 7 file its annual report and shall have paid to the commissioner of 8 finance on or before the date such application is filed an amount prop- 9 erly estimated as provided by said section, the only amount payable in 10 addition to the tax shall be interest at the underpayment rate set by 11 the commissioner of finance pursuant to section 11-687 of this chapter, 12 or, if no rate is set, at the rate of seven and one-half percent per 13 annum upon the amount by which the tax, or the portion thereof payable 14 on or before the date the report was required to be filed, exceeds the 15 amount so paid. For purposes of this paragraph: 16 (1) an amount so paid shall be deemed properly estimated if it is 17 either: (A) not less than ninety percent of the tax as finally deter- 18 mined, computed without regard to any credit allowable under subdivision 19 eleven of section 11-604 of this subchapter, or (B) not less than the 20 tax shown, computed without regard to any credit allowable under subdi- 21 vision eleven of section 11-604 of this subchapter, on the taxpayer's 22 report for the preceding taxable year, if such preceding year was a 23 taxable year of twelve months; and 24 (2) the time when a report is required to be filed shall be determined 25 without regard to any extension of time for filing such report. 26 2. The commissioner of finance may grant a reasonable extension of 27 time for payment of any tax imposed by this subchapter under such condi- 28 tions as it deems just and proper. 29 3. Subdivision one of this section shall apply to a taxpayer which has 30 a right to a credit pursuant to subdivision eleven of section 11-604 of 31 this subchapter, except that the tax, or balance thereof, payable to the 32 commissioner of finance in full pursuant to subdivision one of this 33 section, at the time the report is required to be filed, shall be calcu- 34 lated and paid at such time as if the credit provided for in subdivision 35 eleven of section 11-604 of this subchapter were not allowed. 36 § 11-607 Declaration of estimated tax. 1. Every taxpayer subject to 37 the tax imposed by section 11-603 of this subchapter shall make a decla- 38 ration of its estimated tax for the current privilege period, containing 39 such information as the commissioner of finance may prescribe by regu- 40 lations or instructions, if such estimated tax can reasonably be 41 expected to exceed one thousand dollars. 42 2. The term "estimated tax" means the amount which a taxpayer esti- 43 mates to be the tax imposed by section 11-603 of this subchapter for the 44 current privilege period, less the amount which it estimates to be the 45 sum of any credits allowable against the tax other than the credit 46 allowable under subdivision eleven of section 11-604 of this subchapter. 47 3. In the case of a taxpayer which reports on the basis of a calendar 48 year, a declaration of estimated tax shall be filed on or before June 49 fifteenth of the current privilege period, except that if the require- 50 ments of subdivision one are first met: 51 (a) after May thirty-first and before September first of such 52 current privilege period, the declaration shall be filed on or before 53 September fifteenth, or 54 (b) after August thirty-first and before December first of such 55 current privilege period, the declaration shall be filed on or before 56 December fifteenth.S. 8474 497 1 4. A taxpayer may amend a declaration under regulations of the 2 commissioner of finance. 3 5. If, on or before February fifteenth of the succeeding year in the 4 case of a taxpayer which reports on the basis of a calendar year, a 5 taxpayer files its report for the year for which the declaration is 6 required, and pays therewith the balance, if any, of the full amount 7 of the tax shown to be due on the report, 8 (a) such report shall be considered as its declaration if no decla- 9 ration is required to be filed during the calendar or fiscal year for 10 which the tax was imposed, but is otherwise required to be filed on or 11 before December fifteenth pursuant to subdivision three of this 12 section, and 13 (b) such report shall be considered as the amendment permitted by 14 subdivision four of this section to be filed on or before December 15 fifteenth if the tax shown on the report is greater than the estimated 16 tax shown on a declaration previously made. 17 6. This section shall apply to privilege periods of twelve months 18 other than a calendar year by the substitution of the months of such 19 fiscal year for the corresponding months specified in this section. 20 7. If the privilege period for which a tax is imposed by section 21 11-603 of this subchapter is less than twelve months, every taxpayer 22 required to make a declaration of estimated tax for such privilege 23 period shall make such a declaration in accordance with regulations of 24 the commissioner of finance. 25 8. The commissioner of finance may grant a reasonable extension of 26 time, not to exceed three months, for the filing of any declaration 27 required pursuant to this section, on such terms and conditions as it 28 may require. 29 § 11-608 Payments on account of estimated tax. 1. Every taxpayer 30 subject to the tax imposed by section 11-603 of this subchapter shall 31 pay with the report required to be filed for the preceding privilege 32 period, if any, or with an application for extension of the time and 33 filing such report, an amount equal to twenty-five per centum of the 34 preceding year's tax, computed without regard to the credit provided for 35 in subdivision twelve of section 11-604 of this subchapter, if such 36 preceding year's tax exceeded one thousand dollars. 37 2. The estimated tax with respect to which a declaration for such 38 privilege period is required shall be paid, in the case of a taxpayer 39 which reports on the basis of a calendar year, as follows: 40 (a) If the declaration is filed on or before June fifteenth, the esti- 41 mated tax shown thereon, after applying thereto the amount, if any, paid 42 during the same privilege period pursuant to subdivision one of this 43 section, shall be paid in three equal installments. One of such 44 installments shall be paid at the time of the filing of the declaration, 45 one shall be paid on the following September fifteenth, and one on the 46 following December fifteenth. 47 (b) If the declaration is filed after June fifteenth and not after 48 September fifteenth of such privilege period, and is not required to be 49 filed on or before June fifteenth of such period, the estimated tax 50 shown on such declaration, after applying thereto the amount, if any, 51 paid during the same privilege period pursuant to subdivision one of 52 this section, shall be paid in two equal installments. One of such 53 installments shall be paid at the time of the filing of the declaration 54 and one shall be paid on the following December fifteenth. 55 (c) If the declaration is filed after September fifteenth of such 56 privilege period, and is not required to be filed on or before SeptemberS. 8474 498 1 fifteenth of such privilege period, the estimated tax shown on such 2 declaration, after applying thereto the amount, if any, paid in respect 3 to such privilege period pursuant to subdivision one of this section, 4 shall be paid in full at the time of the filing of the declaration. 5 (d) If the declaration is filed after the time prescribed therefor, or 6 after the expiration of any extension of time therefor, paragraphs (b) 7 and (c) of this subdivision shall not apply, and there shall be paid at 8 the time of such filing all installments of estimated tax payable at or 9 before such time, and the remaining installments shall be paid at the 10 times at which, and in the amounts in which, they would have been paya- 11 ble if the declaration had been filed when due. 12 3. If any amendment of a declaration is filed, the remaining install- 13 ments, if any, shall be ratably increased or decreased, as the case may 14 be, to reflect any increase or decrease in the estimated tax by reason 15 of such amendment, and if any amendment is made after September 16 fifteenth of the privilege period, any increase in the estimated tax by 17 reason thereof shall be paid at the time of making such amendment. 18 4. Any amount paid shall be applied after payment as a first install- 19 ment against the estimated tax of the taxpayer for the current privilege 20 period shown on the declaration required to be filed pursuant to section 21 11-607 of this subchapter or, if no declaration of estimated tax is 22 required to be filed by the taxpayer to such section, any such amount 23 shall be considered a payment on account of the tax shown on the report 24 required to be filed by the taxpayer for such privilege period. 25 5. Notwithstanding the provisions of section 11-679 of this chapter or 26 of section three-a of the general municipal law, if an amount paid 27 pursuant to subdivision one of this section exceeds the tax shown on the 28 report required to be filed by the taxpayer for the privilege period 29 during which the amount was paid, interest shall be allowed and paid on 30 the amount by which the amount so paid pursuant to such subdivision 31 exceeds such tax, at the overpayment rate set by the commissioner of 32 finance pursuant to section 11-687 of this chapter, or, if no rate is 33 set, at the rate of four percent per annum from the date of payment of 34 the amount so paid pursuant to such subdivision to the fifteenth day of 35 the third month following the close of the privilege period, provided, 36 however, that no interest shall be allowed or paid under this subdivi- 37 sion if the amount thereof is less than one dollar or if such interest 38 becomes payable solely because of a carryback of a net operating loss in 39 a subsequent privilege period. 40 6. As used in this section, "the preceding year's tax" means the tax 41 imposed upon the taxpayer by section 11-603 of this subchapter for the 42 preceding calendar or fiscal year, or, for purposes of computing the 43 first installment of estimated tax when an application has been filed 44 for extension of the time for filing the report required to be filed for 45 such preceding calendar or fiscal year, the amount properly estimated 46 pursuant to section 11-607 of this subchapter as the tax imposed upon 47 the taxpayer for such calendar or fiscal year. 48 7. This section shall apply to a privilege period of less than twelve 49 months in accordance with regulations of the commissioner of finance. 50 8. The provisions of this section shall apply to privilege periods of 51 twelve months other than a calendar year by the substitution of the 52 months of such fiscal year for the corresponding months specified in 53 such provisions. 54 9. The commissioner of finance may grant a reasonable extension of 55 time, not to exceed six months, for payment of any installment of esti- 56 mated tax required pursuant to this section, on such terms and condi-S. 8474 499 1 tions as the commissioner may require including the furnishing of a bond 2 or other security by the taxpayer in an amount not exceeding twice the 3 amount for which any extension of time for payment is granted, provided 4 however that interest at the underpayment rate set by the commissioner 5 of finance pursuant to section 11-687 of this chapter, or, if no rate is 6 set, at the rate of seven and one-half percent per annum for the period 7 of the extension shall be charged and collected on the amount for which 8 any extension of time for payment is granted under this subdivision. 9 10. A taxpayer may elect to pay any installment of estimated tax prior 10 to the date prescribed in this section for payment thereof. 11 11. The portion of an overpayment attributable to a credit allowable 12 pursuant to subdivision eleven of section 11-604 of this subchapter may 13 not be credited against any payment due under this section. 14 § 11-609 Collection of taxes. Every foreign corporation, other than 15 a moneyed corporation, subject to the provisions of this subchapter, 16 except a corporation having authority to do business by virtue of 17 section thirteen hundred five of the business corporation law, shall 18 file in the department of state a certificate of designation in its 19 corporate name, signed and acknowledged by its president or a vice-pre- 20 sident or its secretary or treasurer, under its corporate seal, desig- 21 nating the secretary of state as its agent upon whom process in any 22 action provided for by this subchapter may be served within this state, 23 and setting forth an address to which the secretary of state shall mail 24 a copy of any such process against the corporation which may be served 25 upon the secretary of state. In case any such corporation shall have 26 failed to file such certificate of designation, it shall be deemed to 27 have designated the secretary of state as its agent upon whom such proc- 28 ess against it may be served; and until a certificate of designation 29 shall have been filed, the corporation shall be deemed to have directed 30 the secretary of state to mail copies of process served upon him or her 31 to the corporation at its last known office address within or without 32 the state. When a certificate of designation has been filed by such 33 corporation the secretary of state shall mail copies of process there- 34 after served upon the secretary of state to the address set forth in 35 such certificate. Any such corporation, from time to time, may change 36 the address to which the secretary of state is directed to mail copies 37 of process, by filing a certificate to that effect executed, signed and 38 acknowledged in like manner as a certificate of designation as provided 39 in this section. Service of process upon any such corporation or upon 40 any corporation having authority to do business by virtue of section 41 thirteen hundred five of the business corporation law, in any action 42 commenced at any time pursuant to the provisions of this subchapter, may 43 be made by either: (a) personally delivering to and leaving with the 44 secretary of state, a deputy secretary of state or with any person 45 authorized by the secretary of state to receive such service duplicate 46 copies thereof at the office of the department of state in the city of 47 Albany, in which event the secretary of state shall forthwith send by 48 registered mail, return receipt requested, one of such copies to the 49 corporation at the address designated by it or at its last known office 50 address within or without the state, or (b) personally delivering to and 51 leaving with the secretary of state, a deputy secretary of state or with 52 any person authorized by the secretary of state to receive such service, 53 a copy thereof at the office of the department of state in the city of 54 Albany and by delivering a copy thereof to, and leaving such copy with, 55 the president, vice-president, secretary, assistant secretary, treasur- 56 er, assistant treasurer, or cashier of such corporation, or the officerS. 8474 500 1 performing corresponding functions under another name, or a director or 2 managing agent of such corporation, personally without the state. Proof 3 of such personal service without the state shall be filed with the clerk 4 of the court in which the action is pending within thirty days after 5 such service, and such service shall be complete ten days after proof 6 thereof is filed. 7 § 11-610 Limitations of time. The provisions of the civil practice 8 law and rules relative to the limitation of time enforcing a civil reme- 9 dy shall not apply to any proceeding or action taken to levy, appraise, 10 assess, determine or enforce the collection of any tax or penalty 11 prescribed by this subchapter, provided, however, that as to real estate 12 in the hands of persons who are owners thereof who would be purchasers 13 in good faith but for such tax or penalty and as to the lien on real 14 estate of mortgages held by persons who would be holders thereof in good 15 faith but for such tax or penalty, all such taxes and penalties shall 16 cease to be a lien on such real estate as against such purchasers or 17 holders after the expiration of ten years from the date such taxes 18 became due and payable. The limitations provided for in this section 19 shall not apply to any transfer from a corporation to a person or corpo- 20 ration with intent to avoid payment of any taxes, or where with like 21 intent the transfer is made to a grantee corporation, or any subsequent 22 grantee corporation, controlled by such grantor or which has any commu- 23 nity of interest with it, either through stock ownership or otherwise. 24 SUBCHAPTER 3 25 FINANCIAL CORPORATION TAX 26 PART 1 27 TAX ON STATE BANKS, TRUST COMPANIES, FINANCIAL 28 CORPORATIONS AND SAVINGS AND LOAN ASSOCIATIONS 29 § 11-611 Definitions. When used in this part: 30 1. The term "financial corporation" means every corporation doing a 31 banking business as defined in this section, other than a national bank- 32 ing association, a trust company all of the capital stock of which is 33 owned by not less than twenty savings banks organized under a law of 34 this state, or a corporation taxable under subchapter two of this chap- 35 ter, and shall include the mortgage facilities corporation created by 36 chapter five hundred sixty-four of the laws of nineteen hundred fifty- 37 six and any corporation eighty percent or more of whose voting stock is 38 beneficially owned by a corporation or corporations subject to article 39 three or article three-a of the banking law or a national banking asso- 40 ciation or associations, provided the corporation whose voting stock is 41 so owned is principally engaged in business which might be lawfully 42 conducted by a corporation subject to article three of the banking law 43 or a national banking association. 44 2. The word "paid", for the purpose of the deductions and credits 45 under this part, means "paid or accrued" or "paid or incurred," and the 46 terms "paid or incurred" and "paid or accrued" shall be construed 47 according to the method of accounting upon the basis of which the net 48 income is computed, under this part. The term "received," for the 49 purpose of the computation of net income under this part means "received 50 or accrued" and the term "received or accrued" shall be construed 51 according to the method of accounting upon the basis of which the net 52 income is computed under this part.S. 8474 501 1 3. The word "dividend" means any distribution made by a corporation to 2 its shareholders or members, out of its earnings or profits, whether in 3 cash, or in property other than stock of the corporation. 4 4. The words "doing a banking business" means doing such business as a 5 corporation may be created to do under articles three, five, five-a, and 6 six of the banking law, or doing any business which a corporation is 7 authorized by such articles to do. 8 5. The words "foreign banker doing a banking business" in the city, 9 include every foreign corporation doing a banking business in the city, 10 except a national banking association. 11 6. The words "savings and loan association" mean every corporation 12 doing such business as a corporation may be created to do under article 13 ten of the banking law, including every federal savings and loan associ- 14 ation organized under authority of the United States. 15 § 11-612 Tax based on net income; imposition; minimum tax; new incor- 16 porations; dissolution; consolidations; mergers, etc. 17 1. For the privilege of doing business in the city: 18 (a) Every bank and savings and loan association organized under the 19 authority of this state; 20 (b) Every trust company incorporated, organized or formed under, by or 21 pursuant to a law of the state, other than a trust company all of the 22 stock of which is owned by not less than twenty savings banks organized 23 under a law of the state, and every domestic corporation authorized to 24 do a trust company's business solely or in connection with any other 25 business, under a general or special law of the state; 26 (c) Every other domestic financial corporation; 27 (d) Every incorporated foreign banker doing a banking business and 28 every other foreign financial corporation; and 29 (e) Every federal savings and loan association located within the 30 city, shall annually pay a tax at the rate of four and one-half per 31 centum except that for the years nineteen hundred seventy-one and those 32 following, the rate shall be five and sixty-three one hundredths per 33 centum, to be computed as provided in this part, upon the basis of its 34 net income for each calendar year, beginning with the calendar year 35 nineteen hundred sixty-six, next preceding the date when such tax 36 becomes due, if the taxpayer is required to file a declaration of esti- 37 mated tax and to make payments on account of such estimated tax as 38 provided by section 11-636 of this subchapter, upon the basis of its net 39 income for the calendar year with respect to which such declaration is 40 required to be filed. 41 2. Every such corporation for the privilege of doing business in the 42 city and every federal savings and loan association located in the city 43 shall be subject to a minimum tax of not less than ten dollars and not 44 less than one mill except that for the years nineteen hundred seventy- 45 one and those following such minimum tax shall be not less than twelve 46 and one-half dollars and not less than one and one-quarter mills upon 47 each dollar of such a part of its issued capital stock on the last day 48 of the calendar year preceding that in which such tax becomes due, at 49 its face value, as the gross income of such corporation derived from 50 business carried on within the city during such calendar year, bears to 51 its gross income derived from all business, both within and without the 52 city, during said year, but if such a corporation has stock without par 53 value, such stock shall be taken at its actual or market value, and not 54 less than five dollars per share, as may be determined by the commis- 55 sioner of finance; except that a savings bank and savings and loan asso- 56 ciation shall be subject to a minimum tax of not less than an amountS. 8474 502 1 equal to two per centum of the amount of interest or dividends credited 2 by it to depositors or shareholders during the calendar year preceding 3 that in which such tax becomes due except that for the years nineteen 4 hundred seventy-one and those following such minimum tax shall be not 5 less than twelve and one-half dollars and not less than an amount equal 6 to two and one-half per centum of the amount of interest or dividends 7 credited by it to depositors or shareholders during the calendar year 8 preceding that in which such tax becomes due, provided that, in deter- 9 mining such amount each interest or dividend credit to a depositor or 10 shareholder shall be deemed to be the interest or dividend actually 11 credited or the interest or dividend which would have been credited if 12 it had been computed and credited at the rate of two per centum per 13 annum whichever is less and except also that in the case of a trust 14 company or savings bank incorporated in the calendar year preceding that 15 in which its first return under this part shall be due and after the 16 thirtieth day of June in such year, the minimum tax, computed as in this 17 subdivision provided, shall be reduced one-twelfth for each month, or 18 major portion thereof, subsequent to said thirtieth day of June during 19 which such trust company or savings bank did not exercise the privilege 20 of doing business in the city. 21 3. For the privilege of doing business in the city, every such domes- 22 tic corporation, except trust companies and savings banks, shall be 23 subject to a tax for the calendar year in which its organization certif- 24 icate is filed, and, for the privilege of doing business in the city, 25 every such foreign corporation shall be subject to a tax for the calen- 26 dar year in which it first does business in the city, and, every federal 27 savings and loan association located within the city shall be subject to 28 a tax for the calendar year in which it first becomes located within the 29 city, computed in the same manner and at the same rate as the minimum 30 tax under subdivision two of this section, except that the income form- 31 ing the basis for proration shall be the income for such calendar year, 32 and the issued capital stock shall be taken as of the last day of such 33 calendar year; provided, however, that the tax so computed shall be 34 reduced one-twelfth for each month, or major portion thereof, in such 35 calendar year, during which such corporation was not doing business in 36 the city, or, if a federal savings and loan association, was not located 37 in the city, and in no event shall the tax be less than ten dollars 38 except that for the year nineteen hundred seventy-one and those follow- 39 ing, in no event shall the tax be less than twelve and one-half dollars. 40 4. For the privilege of doing business in the city, every such trust 41 company and savings bank which shall become incorporated between the 42 thirty-first day of December and the succeeding first day of July, shall 43 be subject to a tax for such period, computed in the same manner and at 44 the same rate as the minimum tax under subdivision two of this section, 45 except that the income forming the basis for proration shall be the 46 income for such period; and the issued capital stock, or interest cred- 47 ited to depositors of a savings bank, shall be taken as of the last day 48 of such period; provided, however, that the tax so computed shall be 49 reduced one-half and an additional one-twelfth for each month, or major 50 portion thereof, in such period, during which such trust company or 51 savings bank was not doing business in the city, and in no event shall 52 the tax be less than ten dollars except that for the year nineteen 53 hundred seventy-one and those following, in no event shall the tax be 54 less than twelve and one-half dollars. 55 5. For the privilege of doing business in the city, every such corpo- 56 ration, except trust companies and savings banks, which shall beS. 8474 503 1 dissolved between the thirty-first day of December and the succeeding 2 second day of September, and shall not become merged or consolidated 3 with another corporation taxable under this part and, every such foreign 4 corporation which shall cease to do business in the city during the same 5 period, and every federal savings and loan association which ceases to 6 be located in the city during the same period, and shall not become 7 merged or consolidated with another corporation taxable under this part, 8 shall pay a tax for the period from the thirty-first day of December up 9 to the time of dissolution, ceasing to do business in the city, or ceas- 10 ing to be located in the city, as the case may be, equal to that which 11 would have been payable had it not been dissolved, ceased to do business 12 in the city, or ceased to be located in the city, except that such tax 13 shall be reduced one-third and an additional one-twelfth for each month, 14 or major portion thereof, prior to such succeeding second day of Septem- 15 ber, during which such corporation was not doing business in the city, 16 or was not located in the city, and in no event shall the tax be less 17 than ten dollars except that for the year nineteen hundred seventy-one 18 and those following, in no event shall the tax be less than twelve and 19 one-half dollars. If such dissolution or cessation occurs between the 20 fifteenth day of March and the second day of September, and if such 21 corporation shall have filed its return on or before the fifteenth day 22 of March as required by section 11-633 of this subchapter, it may file a 23 claim for refund as provided in section 11-678 of this chapter, showing 24 any reduction in tax to which it may be entitled as provided in the 25 preceding sentence; and if it shall be made to appear that the amount of 26 tax due is less than the amount as computed on the basis of the original 27 return, the commissioner of finance shall adjust the computation of tax 28 accordingly. If the amount of tax as so adjusted shall be less than the 29 amount theretofore paid, the excess shall be refunded by the commission- 30 er of finance as provided in subdivision one of section 11-677 of this 31 chapter. 32 6. Every such trust company and savings bank, which shall be 33 dissolved, and shall not become merged or consolidated with another 34 corporation taxable under this part, shall, if dissolution takes place 35 between the thirtieth day of June and the succeeding first day of Janu- 36 ary, be subject to a tax, for that part of such period in which it had 37 been doing business, computed in the same manner and at the same rate as 38 the minimum tax under subdivision two of this section, except that the 39 income forming the basis for proration shall be the income for the 40 calendar year in which such dissolution occurs; and the issued capital 41 stock, or interest credited to depositors of a savings bank, shall be 42 taken as of the date of dissolution; provided, however, that the tax so 43 computed shall be reduced one-half and an additional one-twelfth for 44 each month, or major portion thereof, between the date of dissolution 45 and the succeeding first day of January. If dissolution occurs between 46 the thirty-first day of December and the succeeding sixteenth day of 47 March, such trust company and savings bank shall be subject to the same 48 tax that would have been due from it on or before the fifteenth day of 49 March had it not been dissolved, except that such tax shall be reduced 50 one-twelfth for each month, or major portion thereof, from the date of 51 dissolution to the succeeding first day of July, and shall be for the 52 period beginning on the preceding first day of July and ending on the 53 date of dissolution. In no event shall the tax under this subdivision 54 be less than ten dollars except that for the year nineteen hundred 55 seventy-one and those following, in no event shall the tax under this 56 subdivision be less than twelve and one-half dollars.S. 8474 504 1 7. In the case of a consolidation or merger of taxpayers, or in case a 2 national bank taxable under part two of this subchapter shall be consol- 3 idated or merged with a taxpayer under this part, or in case of a series 4 of such transactions, there shall be added to the net income of the 5 taxpayer resulting from such consolidations or mergers the net income of 6 the taxpayers which are consolidated or merged for the period for which 7 the taxpayer resulting from such consolidation or merger is required to 8 render any return under this part, and if such resulting taxpayer is a 9 savings bank or savings and loan association, there shall be added to 10 the interest or dividends credited by it to depositors or shareholders 11 the amount of interest or dividends credited to depositors or sharehold- 12 ers during such period by the taxpayers which are consolidated or 13 merged, except that net income, interest or dividends shall not be 14 included if they have already been used as the basis for a tax under 15 this part, and the tax payable on filing such return shall be based upon 16 the entire net income reported therein or upon the entire amount of 17 interest or dividends so reported, as the case may be. The acquisition 18 by a taxpayer, directly or indirectly, of the assets or franchises of 19 another taxpayer or national bank shall be deemed a merger for the 20 purposes of this section. 21 8. The tax imposed by this part shall be for the calendar year next 22 preceding the year in which it becomes due; except that with respect to 23 corporations subject to a tax imposed under subdivision three, four, 24 five or six of this section, the tax shall be for the period therein 25 specified, and except that with respect to corporations required to file 26 a declaration of estimated tax and to make payments on account of such 27 estimated tax as provided by section 11-636 of this subchapter, all 28 payments of tax within a calendar year, whether computed on the basis of 29 net income for the current calendar year or on the basis of net income 30 for the preceding calendar year, shall be for the calendar year in which 31 the payments are required to be made. 32 9. In the event that it shall be finally determined by a court of 33 competent jurisdiction that the taxes imposed on national banking asso- 34 ciations by part two of this subchapter are unconstitutional or invalid 35 for the reason that they are not in conformity with the provisions of 36 section fifty-two hundred nineteen of the United States revised stat- 37 utes, then, in lieu of the taxes imposed by the provisions of this part, 38 every corporation that otherwise would have been subject to tax under 39 this part shall be subject to the tax imposed under subchapter two as of 40 July thirteenth, nineteen hundred sixty-six, and all of the provisions 41 of subchapter two, unless clearly inappropriate, shall be applicable 42 except subdivision four of section 11-603 of this chapter; and, in such 43 event, any payments made, reports or returns filed or any act of the 44 commissioner of finance or of a taxpayer purportedly under this subchap- 45 ter shall be treated as though made, filed or done pursuant to subchap- 46 ter two. 47 10. Cross reference. For years for which tax is imposed, see section 48 11-613 of this part. 49 § 11-613 Years for which imposed. 1. The tax imposed by section 50 11-612 of this part is imposed for each calendar year included within 51 the period beginning January first, nineteen hundred sixty-six and 52 ending December thirty-first, nineteen hundred seventy-two. 53 2. Cross reference. For tax imposed for years or periods subsequent to 54 nineteen hundred seventy-two, see part four of this subchapter. 55 § 11-614 Ascertainment of gain or loss. 1. For the purpose of ascer- 56 taining the gain derived or loss sustained from the sale or other dispo-S. 8474 505 1 sition of property, real, personal or mixed, the basis shall be the cost 2 thereof, or the inventoried value if the inventory is made in accordance 3 with section 11-617 of this part. 4 2. Notwithstanding subdivision one of this section, with respect to 5 gain derived from the sale or other disposition of any property acquired 6 prior to January first, nineteen hundred sixty-six, except stock in 7 trade of the taxpayer or other property of a kind which would properly 8 be included in the inventory of the taxpayer if on hand at the close of 9 the taxable year, or property held by the taxpayer primarily for sale to 10 customers in the ordinary course of its trade or business, and accounts 11 or notes receivable acquired in the ordinary course of trade or business 12 from the sale of such stock in trade or property, or for services 13 rendered, net income shall not include: 14 (a) That portion of the gain included in determining net income pursu- 15 ant to subdivision one of this section with respect to each such proper- 16 ty, which exceeds: 17 (b) The amount of gain that would be included in determining net 18 income pursuant to subdivision one of this section with respect to each 19 such property if the basis of such property on the date of sale or other 20 disposition were equal to its fair market value on January first, nine- 21 teen hundred sixty-six, plus or minus all adjustments to basis made with 22 respect to each such property in computing net income for periods on or 23 after January first, nineteen hundred sixty-six provided that the total 24 adjustment to net income provided by this subdivision shall not exceed 25 the amount of the taxpayer's net gain from the sale or other disposition 26 of all such property, as determined pursuant to subdivision one of this 27 section. 28 3. In the case of any bond, with respect to which a deduction for 29 amortizable bond premium is allowable under subdivision nine of section 30 11-621 of this part, the basis for determining gain or loss shall be 31 reduced by the total amount of such deductions so allowable. 32 § 11-615 Exchange of property. Upon the sale or exchange of property 33 the entire amount of the gain or loss, determined under section 11-614 34 of this part, shall be recognized, except as provided in this section: 35 1. No gain or loss shall be recognized if common stock in a corpo- 36 ration is exchanged solely for common stock in the same corporation, or 37 if preferred stock in a corporation is exchanged solely for preferred 38 stock in the same corporation; 39 2. No gain or loss shall be recognized if stock or securities in a 40 corporation, a party to a reorganization are, in pursuance of the plan 41 or reorganization, exchanged solely for stock or securities in such 42 corporation or in another corporation a party to such reorganization; 43 3. No gain or loss shall be recognized if a taxpayer, a party to a 44 reorganization, exchanges property, in pursuance of the plan of reorgan- 45 ization, solely for stock or securities in another corporation a party 46 to such reorganization; and 47 4. No gain or loss shall be recognized if property is transferred to a 48 corporation by a taxpayer solely in exchange for stock or securities in 49 such corporation, and immediately after the exchange such taxpayer is in 50 control of the corporation; but in the case of an exchange by a taxpayer 51 and one or more other corporations or persons this subdivision shall 52 apply only if the amount of the stock and securities received by each is 53 substantially in proportion to its interest in the property prior to the 54 exchange. 55 5. If property, as a result of its destruction in whole or in part, 56 theft or seizure, or an exercise of the power of requisition or condem-S. 8474 506 1 nation, or the threat of imminence thereof, is compulsorily or involun- 2 tarily converted into property similar or related in service or use to 3 the property so converted, or into money which is forthwith in good 4 faith, under regulations prescribed by the commissioner of finance, 5 expended in the acquisition of other property similar or related in 6 service or use to the property so converted, or in the acquisition of 7 control of a corporation owning such other property, or in the estab- 8 lishment of a replacement fund, no gain or loss shall be recognized. If 9 any part of the money is not so expended, the gain, if any, shall be 10 recognized, but in an amount not in excess of the money which is not so 11 expended. 12 6. If there is distributed, in pursuance of a plan of reorganization, 13 to a taxpayer shareholder in a corporation a party to the reorganiza- 14 tion, stock or securities in such corporation or in another corporation 15 a party to the reorganization, without the surrender by such taxpayer 16 shareholder of stock or securities in such a corporation, no gain to the 17 distributee from the receipt of such stock or securities shall be recog- 18 nized. 19 7. If an exchange would be within the provisions of subdivision one, 20 two, or four of this section if it were not for the fact that the prop- 21 erty received in exchange consists not only of property permitted by 22 such subdivision to be received without the recognition of gain, but 23 also of other property or money, then the gain, if any, to the recipient 24 shall be recognized, but in an amount not in excess of the sum of such 25 money and the fair market value of such other property. 26 8. If an exchange would be within the provisions of subdivision three 27 of this section if it were not for the fact that the property received 28 in exchange consists not only of stock or securities permitted by such 29 subdivision to be received without the recognition of gain, but also of 30 other property or money, then: 31 (a) If the taxpayer receiving such other property or money distributes 32 it in pursuance of the plan of reorganization, no gain to the taxpayer 33 shall be recognized from the exchange, but 34 (b) If the taxpayer receiving such other property or money does not 35 distribute it in pursuance of the plan of reorganization, the gain, if 36 any, to the taxpayer shall be recognized, but in an amount not in excess 37 of the sum of such money and the fair market value of such other proper- 38 ty so received, which is not so distributed. 39 9. If an exchange would be within the provisions of subdivision one, 40 two, three, or four of this section if it were not for the fact that the 41 property received in exchange consists not only of property permitted by 42 such subdivision to be received without the recognition of gain or loss, 43 but also of other property or money, then no loss from the exchange 44 shall be recognized. 45 10. As used in this section: 46 (a) The term "reorganization" means (i) a merger or consolidation, 47 including the acquisition by one corporation of at least a majority of 48 the voting stock and at least a majority of the total number of shares 49 of all other classes of stock of another corporation, or substantially 50 all the properties of another corporation, or (ii) a transfer by a 51 corporation of all or a part of its assets to another corporation if 52 immediately after the transfer the transferor or its stockholders or 53 both are in control of the corporation to which the assets are trans- 54 ferred, or (iii) a recapitalization, or (iv) a mere change in identity, 55 form or place of organization, however effected;S. 8474 507 1 (b) The term "a party to a reorganization" includes a corporation 2 resulting from a reorganization and includes both corporations in the 3 case of an acquisition by one corporation of at least a majority of the 4 voting stock and at least a majority of the total number of shares of 5 all other classes of stock of another corporation; and 6 (c) The term "control" means the ownership of at least eighty per 7 centum of the voting stock and at least eighty per centum of the total 8 number of shares of all other classes of stock of the corporation. 9 11. No gain or loss shall be recognized upon the receipt by a taxpayer 10 of property distributed in complete liquidation of a corporation. For 11 the purposes of this subdivision a distribution shall be considered to 12 be in complete liquidation only if: 13 (a) the taxpayer receiving such property was, on the date of the 14 adoption of the plan of liquidation, and has continued to be at all 15 times until the receipt of the property, the owner of stock, in such 16 corporation, possessing at least eighty per centum of the total combined 17 voting power of all classes of stock entitled to vote and the owner of 18 at least eighty per centum of the total number of shares of all other 19 classes of stock, except non-voting stock which is limited and preferred 20 as to dividends, and was at no time on or after the date of the adoption 21 of the plan of liquidation and until the receipt of the property the 22 owner of a greater percentage of any class of stock than the percentage 23 of such class owned at the time of the receipt of the property; and 24 either: 25 (b) the distribution is by such corporation in complete cancellation 26 or redemption of all its stock, and the transfer of all the property 27 occurs within the base year; in such case the adoption by the sharehold- 28 ers of the resolution under which is authorized the distribution of all 29 the assets of the corporation in complete cancellation or redemption of 30 all its stock, shall be considered an adoption of a plan of liquidation, 31 even though no time for the completion of the transfer of the property 32 is specified on such resolution; or 33 (c) such distribution is one of a series of distributions by such 34 corporation in complete cancellation or redemption of all its stock in 35 accordance with a plan of liquidation under which the transfer of all 36 the property under the liquidation is to be completed within three years 37 from the close of the year during which is made the first of the series 38 of distributions under the plan, except that if such transfer is not 39 completed within such period, or if the taxpayer does not continue qual- 40 ified under paragraph (a) of this subdivision until the completion of 41 such transfer, no distribution under the plan shall be considered a 42 distribution in complete liquidation. 43 If such transfer of all the property does not occur within the year, 44 the commissioner of finance may require of the taxpayer such bond, or 45 waiver of the statute of limitations on assessment and collection, or 46 both, as the commissioner may deem necessary to insure, if the transfer 47 of the property is not completed within such three year period, or if 48 the taxpayer does not continue qualified under paragraph (a) of this 49 subdivision until the completion of such transfer, the assessment and 50 collection of all taxes then imposed under this part for such year or 51 subsequent years, to the extent attributable to property so received. A 52 distribution otherwise constituting a distribution in complete liqui- 53 dation within the meaning of this paragraph shall not be considered as 54 not constituting such a distribution merely because it does not consti- 55 tute a distribution or liquidation within the meaning of the corporate 56 law under which the distribution is made; and for the purposes of thisS. 8474 508 1 paragraph a transfer of property of such corporation to the taxpayer 2 shall not be considered as not constituting a distribution, or one of a 3 series of distributions, in complete cancellation or redemption of all 4 the stock of such corporation, merely because the carrying out of the 5 plan involves: (1) the transfer under the plan to the taxpayer by such 6 corporation of property, not attributable to shares owned by the taxpay- 7 er, upon an exchange described in subdivision three of this section, and 8 (2) the complete cancellation or redemption under the plan, as a result 9 of exchanges described in subdivision two of this section, of the shares 10 not owned by the taxpayers. 11 § 11-616 Exchange of property when no gain or loss is realized. When 12 property is exchanged for other property and no gain or loss is realized 13 under the provisions of the preceding section, the property received 14 shall be treated as taking the place of the property exchanged therefor. 15 Where no gain or loss is realized under the provisions of subdivision 16 eleven of section 11-615 of this part, the basis of the property 17 received shall be the same as it would be in the hands of the transferor 18 determined in accordance with the provisions of section 11-614 of this 19 part. 20 § 11-617 Inventory. Whenever in the opinion of the commissioner of 21 finance the use of inventories is necessary in order clearly to deter- 22 mine the income of any taxpayer, inventory shall be taken by such 23 taxpayer upon such basis as the commissioner of finance may prescribe, 24 conforming as nearly as may be to the best accounting practice in the 25 banking business most clearly reflecting the income. 26 § 11-618 Net income defined. The term "net income" means the gross 27 income of a taxpayer less the deductions allowed by this part. 28 § 11-619 Computation of net income. The net income shall be computed 29 in accordance with the method of accounting regularly employed in keep- 30 ing the books of such taxpayer; but if no such method of accounting has 31 been so employed, or if the method employed does not clearly reflect the 32 income, the computation shall be made upon such basis and in such manner 33 as in the opinion of the commissioner of finance does clearly reflect 34 the income. In determining net income, war losses, taxation of property 35 recovered, and basis of property shall be treated in substantially the 36 same manner as such losses, recoveries and basis are treated under the 37 applicable provisions of section thirteen hundred thirty-one of the 38 internal revenue code. 39 § 11-620 Gross income defined. 1. The term "gross income" includes 40 gains, profits and income derived from the business, of whatever kind 41 and in whatever form paid, including gains, profits or income from deal- 42 ings in property, whether real or personal, or gains, profits or income 43 received as compensation for services, as interest, rents, commissions, 44 brokerage or other fees, or otherwise in carrying on such business, 45 including all dividends received on stocks and all interest received 46 from federal, state, municipal or other bonds. 47 2. If the gross income of a taxpayer is derived from business carried 48 on both within and without the city, "gross income" means that propor- 49 tion thereof which is derived from business carried on within the city, 50 to be allocated and determined on the basis of separate accounting for 51 each office or branch or, at the election of the taxpayer, under rules 52 and regulations prescribed by the commissioner of finance. 53 3. "Gross income" of a savings bank shall include the amount received 54 by it in any taxable year as a distribution in liquidation of the mutual 55 savings bank fund.S. 8474 509 1 § 11-621 Deductions. In computing net income there shall be allowed as 2 deductions: 3 1. All the ordinary and necessary expenses paid or incurred during the 4 year in carrying on business, including a reasonable allowance for sala- 5 ries or other compensation for personal services actually rendered, and 6 including rentals or other payments required to be made as a condition 7 to the continued use or possession for business purposes of property to 8 which the taxpayer has not taken or is not taking title or in which such 9 taxpayer has no equity. 10 2. All interest paid or accrued during the year on indebtedness. 11 3. Taxes, other than taxes on income or profits paid or accrued within 12 the year, imposed, first, by the authority of the United States, or of 13 any of its possessions, or, second, by the authority of any state, or 14 territory, or any county, school district, municipality, or other taxing 15 subdivisions of any state or territory, not including those assessed 16 against local benefits of a kind tending to increase the value of the 17 property assessed, or, third, by the authority of any foreign govern- 18 ment. 19 4. Losses sustained during the year and not compensated for by insur- 20 ance or otherwise, if incurred in business; unless in order to clearly 21 reflect the income the losses should in the opinion of the commissioner 22 of finance be accounted for as of a different period. No deduction shall 23 be allowed for any loss claimed to have been sustained in any sale or 24 other disposition of shares of stock or securities where it appears that 25 within thirty days before or after the date such sale or other disposi- 26 tion the taxpayer has acquired substantially identical property, and the 27 property so acquired is held by the taxpayer for any period after such 28 sale or other disposition, unless such claim is made with respect to a 29 transaction made in the ordinary course of business. If such acquisi- 30 tion is to the extent of part only of substantially identical property, 31 only a proportionate part of the loss shall be disallowed. 32 5. Debts ascertained to be worthless and charged off within the year; 33 or in the discretion of the commissioner of finance a reasonable addi- 34 tion to a reserve for bad debts. When satisfied that a debt is recovera- 35 ble only in part, the commissioner of finance may allow such debt to be 36 charged off in part. 37 6. A reasonable allowance for the exhaustion, wear and tear of proper- 38 ty used in business, including a reasonable allowance for obsolescence. 39 In the case of any such property acquired before January first, nineteen 40 hundred sixty-six, the amount of such deduction shall be equal to the 41 deduction properly taken for such property in reporting the tax due 42 pursuant to the former article nine-b of the tax law. With respect to 43 property such as described in subdivision twelve of this section, this 44 deduction may be computed and allowed as provided therein. 45 7. If the gross income be derived from business carried on within and 46 without the city, the deductions allowed by this section shall be allo- 47 cated and determined on the basis of separate accounting for each office 48 or branch or, at the election of the taxpayer, under rules and regu- 49 lations to be prescribed by the commissioner of finance. 50 8. In the case of any taxpayer who establishes or maintains a pension 51 trust to provide for the payment of reasonable pensions to its employ- 52 ees, there shall be allowed as a deduction, in addition to the contrib- 53 utions to such trust during the taxable year to cover the pension 54 liability accruing during the year, allowed as a deduction under subdi- 55 vision one of this section, a reasonable amount transferred or paid into 56 such trust during the taxable year in excess of such contributions, butS. 8474 510 1 only if such amount (a) has not theretofore been allowable as a 2 deduction, and (b) is apportioned in equal parts over a period of ten 3 consecutive years beginning with the year in which the transfer or 4 payment is made or, under regulations of the commissioner of finance, 5 covers not more than one-tenth of the total pension liability with 6 respect to services rendered prior to such taxable year; provided that 7 said deduction shall be allowable only with respect to a taxable year, 8 whether the year of the transfer or payment or a subsequent year, of the 9 taxpayer ending within or with a taxable year of the trust with respect 10 to which the trust, by reason of its purposes or activities, is exempt 11 from federal income tax. 12 9. The amount of the amortizable bond premium on a bond for the year 13 shall be allowed as a deduction as hereinafter provided. In computing 14 such deduction: (a) the amount of the bond premium shall be determined 15 with reference to the amount of the basis, for determining loss on sale 16 or exchange, of such bond, and with reference to the amount payable on 17 maturity or on earlier call date, with adjustments proper to reflect 18 unamortized bond premium with respect to the bond, for the period prior 19 to July thirteenth, nineteen hundred sixty-six with respect to the 20 taxpayer with respect to such bond, and (b) the amortizable bond premium 21 of the year shall be the amount of the bond premium attributable to such 22 year. Accordingly, such determination shall be made in accordance with 23 the method of amortizing bond premium regularly employed by the holder 24 of such bond, if such method is reasonable, and in all other cases in 25 accordance with regulations of the commissioner of finance prescribing 26 reasonable methods of amortizing bond premium. This subdivision shall 27 apply only if the taxpayer shall so elect, in accordance with regu- 28 lations of the commissioner of finance, and such election shall be made 29 separately with respect to (1) bonds, the interest of which is wholly 30 taxable, and (2) bonds, the interest of which is wholly or partially tax 31 exempt, for purposes of the income tax imposed by chapter one of the 32 internal revenue code. If such election is made with respect to any bond 33 of the taxpayer described in clauses one or two of this subdivision, it 34 shall also apply to all bonds in the same class held by the taxpayer at 35 the beginning of the first year to which the election applies and to all 36 such bonds thereafter acquired by it and shall be binding for all subse- 37 quent years with respect to all such bonds of the taxpayer, unless upon 38 the application by the taxpayer, the commissioner of finance permits the 39 taxpayer, subject to such conditions as the commissioner of finance 40 deems necessary, to revoke such election. As used in this subdivision 41 the term "bond" means any bond, debenture, note or certificate or other 42 evidence of indebtedness, issued by any corporation and bearing inter- 43 est, including any like obligation issued by a government or political 44 subdivision thereof, with interest coupons or in registered form, but 45 does not include any such obligation which constitutes stock in trade of 46 the taxpayer or any such obligation of a kind which would properly be 47 included in the inventory of the taxpayer if on hand at the close of the 48 year, or any such obligation held by the taxpayer primarily for sale to 49 customers in the ordinary course of its trade or business. 50 10. In the case of a savings bank and savings and loan association, 51 amounts paid or credited to depositors or holders of accounts as inter- 52 est or dividends on their deposits or withdrawable accounts, if such 53 amounts are withdrawable on demand subject only to customary notice of 54 intention to withdraw. 55 11. A savings bank and savings and loan association may deduct in any 56 taxable year the amount of the repayment of any loan or advance from theS. 8474 511 1 mutual savings bank fund in computing its net income and the amount of 2 interest or dividends subject to the minimum tax under subdivision three 3 of section 11-612 of this part. 4 12. (a) At the election of the taxpayer there shall be deducted from 5 gross income, or if gross income is derived from business carried on 6 within and without this city, from the portion thereof allocated within 7 the city, depreciation with respect to any property such as described in 8 paragraph (b) of this subdivision, not exceeding twice the depreciation 9 allowed with respect to the same property for federal income tax 10 purposes. 11 (b) Such deduction shall be allowed only with respect to tangible 12 property which is depreciable pursuant to section one hundred sixty-sev- 13 en of the internal revenue code, having a situs in this city and used in 14 the taxpayer's business, (i) constructed, reconstructed or erected after 15 December thirty-first, nineteen hundred sixty-five, pursuant to a 16 contract which was on or before December thirty-first, nineteen hundred 17 sixty-seven, and at all times thereafter, binding on the taxpayer or, 18 property, the physical construction, reconstruction or erection of which 19 began on or before December thirty-first, nineteen hundred sixty-seven 20 or which began after such date pursuant to an order placed on or before 21 December thirty-first, nineteen hundred sixty-seven, and then only with 22 respect to that portion of the basis thereof which is properly attribut- 23 able to such construction, reconstruction or erection after December 24 thirty-first, nineteen hundred sixty-five, or (ii) acquired after Decem- 25 ber thirty-first, nineteen hundred sixty-five, pursuant to a contract 26 which was, on or before December thirty-first, nineteen hundred sixty- 27 seven, and at all times thereafter, binding on the taxpayer or pursuant 28 to an order placed on or before December thirty-first, nineteen hundred 29 sixty-seven, by purchase as defined in section one hundred seventy-nine 30 (d) of the internal revenue code, if the original use of such property 31 commenced with the taxpayer, commenced in this city and commenced after 32 December thirty-first, nineteen hundred sixty-five, or (iii) acquired, 33 constructed, reconstructed or erected subsequent to December thirty- 34 first, nineteen hundred sixty-seven, if such acquisition, construction, 35 reconstruction or erection is pursuant to a plan of the taxpayer which 36 was in existence December thirty-first, nineteen hundred sixty-seven and 37 not thereafter substantially modified, and such acquisition, 38 construction, reconstruction or erection would qualify under the rules 39 in paragraph four, five or six of subsection (h) of section forty-eight 40 of the internal revenue code provided all references in such paragraphs 41 four, five and six to the dates October nine, nineteen hundred sixty-six 42 and October ten, nineteen hundred sixty-six shall be read as December 43 thirty-first, nineteen hundred sixty-seven. A taxpayer shall be allowed 44 a deduction under clause (i), (ii) or (iii) of this paragraph only if 45 the tangible property shall be delivered or the construction, recon- 46 struction or erection shall be completed on or before December thirty- 47 first, nineteen hundred sixty-nine, except in the case of tangible prop- 48 erty which is acquired, constructed, reconstructed or erected pursuant 49 to a contract which was, on or before December thirty-first, nineteen 50 hundred sixty-seven, and at all times thereafter, binding on the taxpay- 51 er. Provided, however, for any taxable year beginning on or after Janu- 52 ary first, nineteen hundred sixty-eight, a taxpayer shall not be allowed 53 a deduction under paragraph (a) of this subdivision with respect to 54 tangible personal property leased by it to any other person or corpo- 55 ration. Accordingly, any contract or agreement to lease or rent or for a 56 license to use such property shall be considered a lease. With respectS. 8474 512 1 to property which the taxpayer uses itself for purposes other than leas- 2 ing for part of a taxable year and leases for a part of a taxable year, 3 the taxpayer shall be allowed a deduction under paragraph (a) of this 4 subdivision in proportion to the part of the year it uses such property. 5 (c) If the deduction allowable for any taxable year pursuant to this 6 subdivision exceeds the taxpayer's net income computed without the 7 allowance of such deduction and without the allowance of any deduction 8 pursuant to subdivision six of this section with references to the same 9 property, the excess may be carried over to the following taxable year 10 or years and may be deducted in computing net income for such year or 11 years. 12 (d) In any taxable year when property is sold or otherwise disposed 13 of, with respect to which a deduction has been allowed pursuant to this 14 subdivision, the gain or loss thereon shall be computed by adjusting the 15 basis of such property to reflect the deductions so allowed, and if the 16 taxpayer's gross income is derived from business carried on both within 17 and without the city, shall be allocated within the city. Provided, 18 however, that no loss shall be recognized for the purposes of this para- 19 graph with respect to a sale or other disposition of property to a 20 person whose acquisition thereof is not a purchase as defined in section 21 one hundred seventy-nine (d) of the internal revenue code. 22 § 11-622 Items not deductible. In computing net income no deduction 23 shall in any case be allowed in respect of: 24 (a) Any amount paid out for new buildings or for permanent improve- 25 ments or betterments made to increase the value of any property. 26 (b) Any amount expended in restoring property or in making good the 27 exhaustion thereof for which an allowance is or has been made. 28 PART 2 29 TAX ON NATIONAL BANKING ASSOCIATIONS 30 AND PRODUCTION CREDIT ASSOCIATIONS 31 § 11-623 Imposition of tax. 1. Pursuant to the authority conferred by 32 section fifty-two hundred nineteen of the United States revised statutes 33 and in conformity with the provisions contained in subdivision c of 34 clause one of such section, every national banking association organized 35 under authority of the United States and located within the city, shall 36 annually pay a tax, measured by its net income, to be computed, as 37 provided in this part, at the rate of four and one-half per centum 38 except that for the year nineteen hundred seventy-one and those follow- 39 ing the rate shall be five and sixty-three one hundredths per centum, 40 upon the basis of its net income for the calendar year next preceding 41 the date when such tax becomes due. Such tax shall be for the calendar 42 year next preceding the year in which it becomes due; except that with 43 respect to national banking associations required to file a declaration 44 of estimated tax and to make payments on account of such estimated tax 45 in accordance with the provisions of section 11-636 of this subchapter, 46 all payments of tax within a calendar year, whether computed on the 47 basis of net income for the current calendar year or on the basis of net 48 income for the preceding calendar year, shall be for the calendar year 49 in which the payments are required to be made. If, however, such a 50 national banking association shall be dissolved between the thirty-first 51 day of December and the succeeding second day of September, and shall 52 not become merged or consolidated with a corporation taxable under part 53 one of this subchapter, it shall pay a tax for the period from the thir- 54 ty-first day of December up to the time of dissolution equal to thatS. 8474 513 1 which would have been payable had it not been dissolved, except that 2 such tax shall be reduced by one-third and an additional one-twelfth for 3 each month, or major portion thereof, prior to such succeeding second 4 day of September, during which such corporation was so dissolved. If 5 such dissolution occurs between the fifteenth day of March and the 6 second day of September, and if such corporation shall have filed its 7 return on or before the fifteenth day of March as required by sections 8 11-630 and 11-633 of this subchapter, it may file a claim for refund as 9 provided in section 11-678 of this chapter, showing any reduction in tax 10 to which it may be entitled as provided by this section; and if it shall 11 be made to appear that the amount of tax due is less than the amount as 12 computed on the basis of the original return, the commissioner of 13 finance shall adjust the computation of tax accordingly. If the amount 14 of tax as so adjusted shall be less than the amount theretofore paid, 15 the excess shall be refunded by the commissioner of finance as provided 16 in subdivision one of section 11-677 of this chapter. 17 2. In the event that the taxes imposed by this part shall be finally 18 determined to be unconstitutional or invalid for the reason that they do 19 not conform with the provisions of section fifty-two hundred nineteen of 20 the United States revised statutes, then, in lieu of the taxes imposed 21 by the provisions of this part, every national banking association and 22 every production credit association that otherwise would have been 23 subject to tax under this part shall be subject to the tax imposed under 24 subchapter two as of July thirteenth, nineteen hundred sixty-six, and 25 all of the provisions of subchapter two, unless clearly inappropriate, 26 shall be applicable except subdivision four of section 11-603 of this 27 chapter; and, in such event, any payments made, reports or returns filed 28 or any act of the commissioner of finance or of a taxpayer purportedly 29 under this subchapter shall be treated as though made, filed or done 30 pursuant to subchapter two. 31 3. Cross reference. For years for which tax is imposed, see section 32 11-624 of this part. 33 § 11-624 Years for which imposed. 1. The tax imposed by section 34 11-623 of this part is imposed for each calendar year included within 35 the period beginning January first, nineteen hundred sixty-six and 36 ending December thirty-first, nineteen hundred seventy-two. 37 2. Cross reference. For tax imposed for years or periods subsequent to 38 nineteen hundred seventy-two, see part four of this subchapter. 39 § 11-625 Ascertainment of gain or loss; exchange of property. 1. 40 For the purpose of ascertaining the gain derived or loss sustained from 41 the sale or other disposition of property, real, personal or mixed, the 42 basis shall be the cost thereof, or the inventoried value if the inven- 43 tory is made in accordance with section 11-626 of this part. 44 2. Notwithstanding subdivision one of this section, with respect to 45 gain derived from the sale or other disposition of any property acquired 46 prior to January first, nineteen hundred sixty-six, except stock in 47 trade of the taxpayer or other property of a kind which would properly 48 be included in the inventory of the taxpayer if on hand at the close of 49 the taxable year, or property held by the taxpayer primarily for sale to 50 customers in the ordinary course of its trade or business and accounts 51 or notes receivable acquired in the ordinary course of trade or business 52 from the sale of such stock in trade or property, or for services 53 rendered, net income shall not include: 54 (a) That portion of the gain included in determining net income pursu- 55 ant to subdivision one of this section with respect to each such proper- 56 ty which exceeds:S. 8474 514 1 (b) The amount of gain, if any, that would be included in determining 2 net income pursuant to subdivision one of this section with respect to 3 each such property if the basis of such property on the date of sale or 4 other disposition were equal to its fair market value on January first, 5 nineteen hundred sixty-six, plus or minus all adjustments to basis made 6 with respect to each such property in computing net income for periods 7 on or after January first, nineteen hundred sixty-six; provided that the 8 total adjustment to net income provided by this subdivision shall not 9 exceed the amount of the taxpayer's net gain from the sale or other 10 disposition of all such property, as determined pursuant to subdivision 11 one of this section. 12 3. Upon the sale or exchange of property the amount of the gain or 13 loss shall be determined in the manner prescribed by section 11-615 of 14 this subchapter and the basis of such property shall be determined in 15 the manner prescribed by section 11-616 of this subchapter. 16 4. In the case of any bond, with respect to which a deduction for 17 amortizable bond premium is allowable under paragraph (i) of subdivision 18 one of section 11-629 of this part, the basis for determining gain or 19 loss shall be reduced by the total amount of such deductions so allow- 20 able. 21 § 11-626 Inventory. Whenever in the opinion of the commissioner of 22 finance the use of inventories is necessary in order clearly to deter- 23 mine the income of any taxpayer, inventory shall be taken by such 24 taxpayer upon such basis as the commissioner of finance may prescribe, 25 conforming as nearly as may be to the best accounting practice in the 26 banking business and most clearly reflecting the income. 27 § 11-627 Net income defined; computation. The term "net income" 28 means the gross income of a taxpayer less the deductions allowed by this 29 part. The net income shall be computed in accordance with the method of 30 accounting regularly employed in keeping the books of such taxpayer; but 31 if no such method of accounting has been so employed, or if the method 32 employed does not clearly reflect the income, the computation shall be 33 made upon such basis and in such manner as in the opinion of the commis- 34 sioner of finance does clearly reflect the income. In determining net 35 income, war losses, taxation of property recovered, and basis of proper- 36 ty shall be treated in substantially the same manner as such losses, 37 recoveries and basis are treated under the applicable provisions of 38 section thirteen hundred thirty-one of the internal revenue code. 39 § 11-628 Gross income defined. 1. The term "gross income" includes 40 gains, profit and income derived from the business, of whatever kind and 41 in whatever form paid, including gains, profits or income from dealings 42 in property, whether real or personal, or gains, profits, or income 43 received as compensation for services, as interest, rents, commissions, 44 brokerage or other fees, or otherwise in carrying on such business, 45 including all dividends received on stocks and all interest received 46 from federal, state, municipal or other bonds. 47 2. If the gross income of such an association is derived from business 48 carried on both within and without the city, "gross income" means that 49 proportion thereof which is derived from business carried on within the 50 city, to be allocated and determined on the basis of separate accounting 51 for each office or branch or, at the election of the taxpayer, under 52 rules and regulations prescribed by the commissioner of finance. 53 § 11-629 Deductions. 1. In computing net income there shall be 54 allowed as deductions: 55 (a) All the ordinary and necessary expenses paid or incurred during 56 the year in carrying on business, including a reasonable allowance forS. 8474 515 1 salaries or other compensation for personal services actually rendered, 2 and including rentals or other payments required to be made as a condi- 3 tion to the continued use or possession for business purposes of proper- 4 ty to which the taxpayer has not taken or is not taking title or in 5 which such taxpayer has no equity; 6 (b) All interest paid or accrued during the year on indebtedness; 7 (c) Taxes, other than taxes on income or profits paid or accrued with- 8 in the year, imposed, first, by the authority of the United States, or 9 of any of its possessions, or, second, by the authority of any state, or 10 territory, or any county, school district, municipality, or other taxing 11 subdivisions of any state or territory, not including those assessed 12 against local benefits of a kind tending to increase the value of the 13 property assessed, or, third, by the authority of any foreign govern- 14 ment; 15 (d) Losses sustained during the year and not compensated for by insur- 16 ance or otherwise, if incurred in business; unless in order to clearly 17 reflect the income the losses should in the opinion of the commissioner 18 of finance be accounted for as of a different period. No deduction 19 shall be allowed for any loss claimed to have been sustained in any sale 20 or other disposition of shares of stock or securities where it appears 21 that within thirty days before or after the date of such sale or other 22 disposition the taxpayer has acquired substantially identical property, 23 and the property so acquired is held by the taxpayer for any period 24 after such sale or other disposition, unless such claim is made with 25 respect to a transaction made in the ordinary course of business. If 26 such acquisition is to the extent of part only of substantially identi- 27 cal property, only a proportionate part of the loss shall be disallowed; 28 (e) Debts ascertained to be worthless and charged off within the year; 29 or in the discretion of the commissioner of finance a reasonable addi- 30 tion to a reserve for bad debts. When satisfied that a debt is recover- 31 able only in part, the commissioner of finance may allow such debt to be 32 charged off in part; 33 (f) A reasonable allowance for the exhaustion, wear and tear of prop- 34 erty used in business, including a reasonable allowance for obsoles- 35 cence. In the case of any such property acquired before January first, 36 nineteen hundred sixty-six, the amount of such deduction shall be equal 37 to the deduction properly taken for such property in reporting the tax 38 due. With respect to property such as described in paragraph (j) of 39 this subdivision, this deduction may be computed and allowed as provided 40 therein; 41 (g) If the gross income be derived from business carried on within and 42 without the city, the deductions allowed by this section shall be allo- 43 cated and determined on the basis of separate accounting for each office 44 or branch or, at the election of the taxpayer, under rules and regu- 45 lations to be prescribed by the commissioner of finance; 46 (h) In the case of any taxpayer, who establishes or maintains a 47 pension trust to provide for the payment of reasonable pensions to its 48 employees, there shall be allowed as a deduction, in addition to the 49 contributions to such trust during the taxable years, to cover the 50 pension liability accruing during the year, allowed as a deduction under 51 paragraph (a) of this subdivision, a reasonable amount transferred or 52 paid into such trust during the taxable year in excess of such contrib- 53 utions, but only if such amount: (1) has not theretofore been allowable 54 as a deduction, and (2) is apportioned in equal parts over a period of 55 ten consecutive years beginning with the year in which the transfer of 56 payment is made; provided that said deduction shall be allowable onlyS. 8474 516 1 with respect to a taxable year, whether the year of the transfer or 2 payment or a subsequent year, of the taxpayer ending within or with a 3 taxable year of the trust with respect to which the trust, by reason of 4 its purposes or activities is exempt from federal income tax; 5 (i) The amount of the amortizable bond premium on a bond for the year 6 shall be allowed as a deduction as provided in this paragraph. In 7 computing such deduction, (a) the amount of the bond premium shall be 8 determined with reference to the amount of the basis, for determining 9 loss on sale or exchange, of such bond, and with reference to the amount 10 payable on maturity or on earlier call date, with adjustments proper to 11 reflect unamortized bond premium with respect to the bond, for the peri- 12 od prior to July thirteenth, nineteen hundred sixty-six with respect to 13 the taxpayer with respect to such bond, and (b) the amortizable bond 14 premium of the year shall be the amount of the bond premium attributable 15 to such year. Such determinations shall be made in accordance with the 16 method of amortizing bond premium regularly employed by the holder of 17 such bond, if such method is reasonable, and in all other cases in 18 accordance with regulations of the commissioner of finance prescribing 19 reasonable methods of amortizing bond premium. This paragraph shall 20 apply only if the taxpayer shall so elect, in accordance with regu- 21 lations of the commissioner of finance, and such election shall be made 22 separately with respect to: (1) bonds, the interest of which is wholly 23 taxable, and (2) bonds, the interest of which is wholly or partially tax 24 exempt, for purposes of the income tax imposed by chapter one of the 25 internal revenue code. If such election is made with respect to any bond 26 of the taxpayer described in clauses one or two of this subparagraph, it 27 shall also apply to all bonds in the same class held by the taxpayer at 28 the beginning of the first year to which the election applies and to all 29 such bonds thereafter acquired by it and shall be binding for all subse- 30 quent years with respect to all such bonds of the taxpayer, unless, upon 31 application by the taxpayer, the commissioner of finance permits the 32 taxpayer, subject to such conditions as the commissioner of finance 33 deems necessary, to revoke such election. As used in this paragraph, 34 the term "bond" means any bond, debenture, note, or certificate or other 35 evidence of indebtedness, issued by any corporation and bearing inter- 36 est, including any like obligation issued by a government or political 37 subdivision thereof, with interest coupons or in registered form, but 38 does not include any such obligation which constitutes stock in trade of 39 the taxpayer or any such obligation of a kind which would properly be 40 included in the inventory of the taxpayer if on hand at the close of the 41 year, or any such obligation held by the taxpayer primarily for sale to 42 customers in the ordinary course of its trade or business; and 43 (j) (1) At the election of the taxpayer there shall be deducted from 44 gross income, or if gross income is derived from business carried on 45 within and without this city, from the portion thereof allocated within 46 the city, depreciation with respect to any property such as described in 47 subparagraph two of this paragraph, not exceeding twice the depreciation 48 allowed with respect to the same property for federal income tax 49 purposes. 50 (2) Such deduction shall be allowed only with respect to tangible 51 property which is depreciable pursuant to section one hundred sixty-sev- 52 en of the internal revenue code, having a situs in this city and used in 53 the taxpayer's business, (i) constructed, reconstructed or erected after 54 December thirty-first, nineteen hundred sixty-five, pursuant to a 55 contract which was, on or before December thirty-first, nineteen hundred 56 sixty-seven, and at all times thereafter, binding on the taxpayer orS. 8474 517 1 pursuant to an order placed on or before December thirty-first, nineteen 2 hundred sixty-seven, by purchase as defined in section one hundred 3 seventy-nine (d), of the internal revenue code, if the original use of 4 such property commenced with the taxpayer, commenced in this city and 5 commenced after December thirty-first, nineteen hundred sixty-five or 6 (ii) acquired, constructed, reconstructed, or erected subsequent to 7 December thirty-first, nineteen hundred sixty-seven, if such acquisi- 8 tion, construction, reconstruction or erection is pursuant to a plan of 9 the taxpayer which was in existence December thirty-first, nineteen 10 hundred sixty-seven and not thereafter substantially modified, and such 11 acquisition, construction, reconstruction or erection would qualify 12 under the rules in paragraph four, five or six of subsection (h) of 13 section forty-eight of the internal revenue code provided all references 14 in such paragraphs four, five and six to the dates October nine, nine- 15 teen hundred sixty-six, and October ten, nineteen hundred sixty-six, 16 shall read as December thirty-first, nineteen hundred sixty-seven. A 17 taxpayer shall be allowed a deduction under clause (i) or (ii) of this 18 subparagraph only if the tangible property shall be delivered or the 19 construction, reconstruction or erection shall be completed on or before 20 December thirty-first, nineteen hundred sixty-nine, except in the case 21 of tangible property which is acquired, constructed, reconstructed or 22 erected pursuant to a contract which was, on or before December thirty- 23 first, nineteen hundred sixty-seven, and at all times thereafter, bind- 24 ing on the taxpayer. Provided, however, for any taxable year beginning 25 on or after January first, nineteen hundred sixty-eight, a taxpayer 26 shall not be allowed a deduction under paragraph (a) of this subdivision 27 with respect to tangible personal property leased by it to any other 28 person or corporation. Any such contract or agreement to lease or rent 29 or for a license to use such property shall be considered a lease. With 30 respect to property which the taxpayer uses itself for purposes other 31 than leasing for part of a taxable year and leases for a part of a taxa- 32 ble year, the taxpayer shall be allowed a deduction under paragraph (a) 33 of this subdivision in proportion to the part of the year it uses such 34 property. 35 (3) If the deduction allowable for any taxable year pursuant to this 36 subdivision exceeds the taxpayer's net income computed without the 37 allowance of such deduction and without the allowance of any deduction 38 pursuant to paragraph (f) of this subdivision with reference to the same 39 property, the excess may be carried over to the following taxable year 40 or years and may be deducted in computing net income for such year or 41 years. 42 (4) In any taxable year when property is sold or otherwise disposed 43 of, with respect to which a deduction has been allowed pursuant to this 44 paragraph, the gain or loss thereon shall be computed by adjusting the 45 basis of such property to reflect the deductions so allowed, and if the 46 taxpayer's gross income is derived from business carried on both within 47 and without the city, shall be allocated within the city. Provided, 48 however, that no loss shall be recognized for the purposes of this para- 49 graph with respect to a sale or other disposition of property to a 50 person whose acquisition thereof is not a purchase as defined in section 51 one hundred seventy-nine (d) of the internal revenue code. 52 2. In computing net income no deduction shall in any case be allowed 53 in respect of: 54 (a) Any amount paid out for new buildings or for permanent improve- 55 ments or betterments made to increase the value of any property.S. 8474 518 1 (b) Any amount expended in restoring or in making good the exhaustion 2 thereof for which an allowance is or has been made. 3 § 11-630 Administration; procedure; provisions of law applicable. 4 For the purpose of carrying into effect the provisions of this part, and 5 except as otherwise provided in this part, income shall be computed, 6 gain or loss ascertained, deductions made, apportionments and allo- 7 cations determined, at the same time and subject to the same limitations 8 and conditions, in so far as practicable, as is provided by part one of 9 this subchapter in relation to the tax imposed by such part. 10 § 11-631 Tax on production credit associations. Pursuant to the 11 authority conferred by the federal farm credit act of nineteen hundred 12 thirty-three, every production credit association organized under the 13 authority of the United States and located within the city after the 14 stock held in it by the federal production credit corporation has been 15 retired shall annually pay a tax measured by its net income, which shall 16 be computed in the same manner as the tax imposed upon national banking 17 associations by section 11-623 of this part and shall be subject to the 18 provisions of sections 11-624 of this part to 11-630 of this part inclu- 19 sive. 20 § 11-632 Applicability of part three. 1. This part shall be applica- 21 ble only to the taxes imposed by parts one and two of this subchapter. 22 2. Cross reference. For years for which parts one and two of this 23 subchapter impose a tax, see sections 11-613 and 11-624 of this subchap- 24 ter. 25 PART 3 26 ADMINISTRATION FOR PARTS 1 AND 2 27 § 11-633 Taxpayer's returns. 1. Every taxpayer, on or before March 28 fifteenth of each year, beginning with the year nineteen hundred sixty- 29 seven and ending with the year nineteen hundred seventy-three, shall 30 make a return subscribed by the taxpayer and affirmed by the taxpayer to 31 be true under the penalties of perjury to the commissioner of finance, 32 for the calendar year next preceding, as to the business or that portion 33 of the business of such taxpayer the income from which is the basis of 34 taxation under part one or two of this subchapter, except that every 35 trust company and savings bank which shall become incorporated between 36 the thirty-first day of December and the succeeding first day of July, 37 shall make its return for such period on or before September first, and 38 every taxpayer, other than a trust company and savings bank, which shall 39 commence to do business in the city or become located in the city, shall 40 make its return for the calendar year in which it commences to do busi- 41 ness or becomes located, on or before the twentieth day of January of 42 the year succeeding such calendar year, and except that every taxpayer, 43 other than a trust company and savings bank, which shall be dissolved, 44 cease to do business in the city or cease to be located in the city, 45 between the thirty-first day of December and the succeeding sixteenth 46 day of March and shall not become merged or consolidated with another 47 corporation taxable under the same part, shall make its return for such 48 period on or before the date of such dissolution, or cessation of busi- 49 ness, and every trust company and savings bank which shall be dissolved, 50 and shall not become merged or consolidated with another corporation 51 taxable under the same part, shall make its return, for the period for 52 which it is taxable under subdivision six of section 11-612 of this 53 subchapter on or before the date of such dissolution. Such return shall 54 be in such form and contain such information as the commissioner ofS. 8474 519 1 finance may require for the purpose of making any computation or other- 2 wise performing its duty under parts one, two, and three of this 3 subchapter. Such return shall state specifically the items of gross 4 income derived from such business and the deductions allowed by the part 5 for which the return is filed, the net income which is the basis of the 6 tax, and the amount of tax due. The return shall be subscribed by the 7 president, vice-president, treasurer, assistant treasurer, chief 8 accounting officer or any other officer of the taxpayer duly authorized 9 so to act. The fact that an individual's name is signed on the return 10 shall be prima facie evidence that such individual is authorized to 11 subscribe and affirm the return on behalf of the corporation. Blank 12 forms of return shall be furnished by the commissioner of finance upon 13 application, but failure to secure the form shall not relieve any 14 taxpayer from the obligation of making any return herein required. An 15 automatic extension of three months for the filing of its annual return 16 shall be allowed for any taxpayer if, within the time prescribed under 17 this subdivision for the filing thereof, such taxpayer files with the 18 commissioner of finance an application for extension in such form as the 19 commissioner of finance may prescribe by regulation and pays on or 20 before the date of such filing the amount properly estimated as its tax. 21 The commissioner of finance may grant a reasonable extension of time for 22 filing a return, which may be in addition to any three-month automatic 23 extension allowed, whenever in the commissioner's judgment good cause 24 exists and shall keep a record of every such extension and the reason 25 therefor. No such extension or extensions shall aggregate more than 26 three months, exclusive of any automatic extension. 27 2. If the amount of taxable income for any year of any taxpayer as 28 returned to the United States treasury department or the New York state 29 tax department is changed or corrected by the commissioner of internal 30 revenue or other officer of the United States or the New York state tax 31 commission or other competent authority; or if a taxpayer, pursuant to 32 subsection (d) of section sixty-two hundred thirteen of the internal 33 revenue code, executes a notice of waiver of the restrictions provided 34 in subsection (a) of such section, or if a taxpayer, pursuant to subdi- 35 vision (f) of section one thousand eighty-one of the tax law, executes a 36 notice of waiver of the restrictions provided in subdivision (c) of such 37 section, such taxpayer shall report such change or corrected taxable 38 income or such execution of such notice of waiver and the changes or 39 corrections of such taxpayer's federal or New York state taxable income 40 on which it is based, within ninety days after such execution or the 41 final determination of such change or correction, or as required by the 42 commissioner of finance, and shall concede the accuracy of such determi- 43 nation or state wherein it is erroneous. Any taxpayer filing an amended 44 return with such department shall also file within ninety days thereaft- 45 er an amended return with the commissioner of finance which shall 46 contain such information as it shall require. 47 § 11-634 Consolidated returns. Corporations which are affiliated 48 may, if authorized, and shall, if required, by the commissioner of 49 finance, under regulations prescribed by the commissioner of finance, 50 make a consolidated return for the purpose of parts one, two and three 51 of this subchapter. The commissioner of finance may, in his or her 52 discretion, authorize bank holding companies as defined in article 53 three-a of the banking law to make a consolidated return with affiliated 54 corporations taxable under part one and under part two of this subchap- 55 ter in which case the consolidated tax will be computed in accordance 56 with the provisions of part one of this subchapter. In all other casesS. 8474 520 1 in which a corporation taxable under part two of this subchapter makes a 2 consolidated return with corporations taxable under part one of this 3 subchapter, the consolidated tax will be computed in accordance with the 4 provisions of part one of this subchapter. In any case in which a tax is 5 assessed upon the basis of a consolidated return, the total tax shall be 6 computed in the first instance as a unit and shall then be assessed upon 7 the respective affiliated corporations in such proportions as may be 8 agreed upon among them, or in the absence of any such agreement, then on 9 the basis of the net income properly assignable to each. 10 § 11-635 Payment of tax. Each taxpayer shall, at the time of filing 11 its return, pay to the commissioner of finance: 12 (a) the amount of tax payable under part one or two of this subchapter 13 as the same shall appear from the face of the return, or 14 (b) if payments of estimated tax have been made pursuant to section 15 11-636 of this part, the balance, if any, of the tax payable under part 16 one or two of this subchapter, as the same shall appear from the face of 17 the return, after applying thereto any payments made pursuant to said 18 section. 19 If the time for filing the return shall be extended, the taxpayer 20 shall pay in addition interest at the rate of six per centum per annum 21 from the time when the return was originally required to be filed to the 22 time of payment upon the amount by which the tax, or the portion thereof 23 payable when the return was required to be filed, exceeds the amount 24 then paid: 25 (1) a payment made on or before the date of filing of an application 26 for an automatic extension shall be deemed properly estimated if its 27 either: (A) not less than ninety per centum of the tax as finally 28 determined, or (B) not less than the tax shown on the taxpayer's return 29 for the preceding taxable year, if such preceding year was a taxable 30 year of twelve months; and 31 (2) the time when a return is required to be filed shall be determined 32 without regard to any extension of time for filing such return. 33 § 11-636 Declaration of estimated tax; payments on account of esti- 34 mated tax. 1. Every taxpayer subject to the tax imposed by part one or 35 two of this subchapter shall make a declaration of the estimated tax 36 upon the basis of its net income for the current calendar year, contain- 37 ing such information as the commissioner of finance may prescribe by 38 regulations or instructions, if such estimated tax can reasonably be 39 expected to exceed one thousand dollars. 40 2. The term "estimated tax" means the amount which a taxpayer esti- 41 mates to be the tax imposed upon it by part one or two of this subchap- 42 ter upon the basis of its net income for the current calendar year, less 43 the amount which it estimates to be the sum of any credits allowable 44 against the tax. 45 3. A declaration of estimated tax shall be filed on or before June 46 fifteenth of the calendar year upon the net income of which the tax is 47 based, except that if the requirements of subdivision one of this 48 section are first met: 49 (a) after June first and before October second of such calendar year, 50 the declaration shall be filed on or before October fifteenth, or 51 (b) after October first of such calendar year, the declaration shall 52 be filed on or before January fifteenth of the succeeding calendar year. 53 Notwithstanding any other provision of this subdivision, no declara- 54 tion need be filed prior to September eleventh, nineteen hundred sixty- 55 six.S. 8474 521 1 4. A taxpayer may amend a declaration under regulations of the commis- 2 sioner of finance. 3 5. If, on or before February fifteenth of the succeeding year, a 4 taxpayer files its return for the calendar year upon the net income of 5 which the declaration is required to be based, and pays therewith the 6 balance, if any, of the full amount of the tax shown to be due on the 7 return, 8 (a) such return shall be considered as its declaration if no declara- 9 tion was required to be filed during such calendar year, but is other- 10 wise required to be filed on or before January fifteenth of the succeed- 11 ing year pursuant to subdivision three of this section, 12 (b) such return shall be considered as an amendment permitted by 13 subdivision four of this section to be filed on or before January 14 fifteenth if the tax shown on the return is greater than the estimated 15 tax shown on a declaration previously made. 16 6. The commissioner of finance may grant a reasonable extension of 17 time, not to exceed three months, for the filing of any declaration 18 required pursuant to this section, on such terms and conditions as the 19 commissioner may require. 20 7. Every taxpayer subject to the tax imposed by part one or two of 21 this subchapter shall pay with the return of tax, if any, required to be 22 filed upon the basis of its net income for the preceding calendar year, 23 or with an application for extension of the time for filing such return, 24 an amount equal to twenty-five per centum of the preceding year's tax, 25 if such preceding year's tax exceeded one thousand dollars. 26 8. The estimated tax with respect to which a declaration for such 27 calendar year is required pursuant to this section shall be paid as 28 follows: 29 (a) If the declaration is filed on or before June fifteenth, the esti- 30 mated tax shown thereon, after applying thereto the amount if any, paid 31 during the same calendar year pursuant to subdivision seven of this 32 section, shall be paid in three equal installments. One of such 33 installments shall be paid at the time of the filing of the declaration, 34 one shall be paid on the following October fifteenth, and one on the 35 following January fifteenth. 36 (b) If the declaration is filed after June fifteenth, and not after 37 October fifteenth of such calendar year, and is not required to be filed 38 on or before June fifteenth of such calendar year, the estimated tax 39 shown on such declaration, after applying thereto the amount, if any, 40 paid during the same calendar year pursuant to subdivision seven of this 41 section, shall be paid in two equal installments. One of such install- 42 ments shall be paid at the time of the filing of the declaration and one 43 shall be paid on the following January fifteenth. 44 (c) If the declaration is filed after October fifteenth of such calen- 45 dar year, and is not required to be filed on or before October fifteenth 46 of such calendar year, the estimated tax shown on such declaration, 47 after applying thereto the amount, if any, paid in respect of such 48 calendar year pursuant to subdivision seven of this section, shall be 49 paid in full at the time of the filing of the declaration. 50 (d) If the declaration is filed after the time prescribed therefor, or 51 after the expiration of any extension of time therefor, paragraphs (b) 52 and (c) of this subdivision shall not apply, and there shall be paid at 53 the time of such filing all installments of estimated tax payable at or 54 before such time, and the remaining installments shall be paid at the 55 times at which, and in the amounts in which, they would have been paya- 56 ble if the declaration had been filed when due.S. 8474 522 1 9. If any amendment of a declaration is filed, the remaining install- 2 ments, if any, shall be ratably increased or decreased, as the case may 3 be, to reflect any increase or decrease in the estimated tax by reason 4 of such amendment, and if any amendment is made after October fifteenth 5 of the calendar year, any increase in the estimated tax by reason there- 6 of shall be paid at the time of making such amendment. 7 10. Any amount paid pursuant to subdivision seven of this section 8 shall be applied after payment as a first installment against the esti- 9 mated tax of the taxpayer shown on the declaration next required to be 10 filed pursuant to this section or, if no declaration of estimated tax is 11 required to be filed by the taxpayer pursuant to this section, any such 12 amount shall be considered a payment on account of the tax shown on the 13 return of tax required to be filed by the taxpayer upon the basis of its 14 net income for the calendar year during which such amount was paid. 15 11. Notwithstanding the provisions of section 11-679 of this chapter 16 or of section three-a of the general municipal law, if any amount paid 17 pursuant to subdivision seven of this section, exceeds the tax shown on 18 the return required to be filed by the taxpayer upon the basis of its 19 net income for the calendar year during which the amount was paid, 20 interest shall be allowed and paid on the amount by which the amount so 21 paid pursuant to such subdivision exceeds such tax, at the rate of six 22 per centum per annum from the date of payment of the amount so paid 23 pursuant to such subdivision to March fifteenth of the succeeding calen- 24 dar year, provided, however, that no interest shall be allowed or paid 25 under this subdivision if the amount thereof is less than one dollar. 26 12. As used in this section, "the preceding year's tax" means the tax 27 imposed upon the taxpayer by part one or two of this subchapter upon the 28 basis of its net income for the preceding calendar year, or, for 29 purposes of computing the first installment of estimated tax when an 30 application has been filed for extension of time for filing the return 31 required to be filed for such preceding calendar year, the amount prop- 32 erly estimated pursuant to section 11-635 of this part as the tax 33 imposed upon the basis of its net income for such calendar year. 34 13. This section shall apply to an income period of less than twelve 35 months in accordance with regulations of the commissioner of finance. 36 14. The commissioner of finance may grant a reasonable extension of 37 time, not to exceed six months, for payment of any installment of esti- 38 mated tax required pursuant to this section, on such terms and condi- 39 tions as the commissioner may require, including the furnishing of a 40 bond or other security by the taxpayer in an amount not exceeding twice 41 the amount for which any extension of time for payment is granted, 42 provided however, that interest at the rate of six per centum per annum 43 for the period of the extension shall be charged and collected on the 44 amount for which any extension of time for payment is granted under this 45 subdivision. 46 15. A taxpayer may elect to pay any installment of estimated tax prior 47 to the date prescribed in this section for payment thereof. 48 § 11-637 Real property taxable. Nothing in this subchapter shall be 49 construed to exempt the real property of any taxpayer from taxation to 50 the same extent, according to its value, as other real property is 51 taxed. 52 PART 4 53 BANKING CORPORATION TAX 54 § 11-638 General definitions. As used in this part:S. 8474 523 1 (a) The word "taxpayer" means a corporation or association subject to 2 a tax imposed by this part. 3 (b) The phrase "taxable year" means the taxpayer's taxable year for 4 federal income tax purposes, or the part thereof during which the 5 taxpayer is subject to the tax imposed by this part. 6 (c) The term "international banking facility" shall mean an interna- 7 tional banking facility located in New York state and shall have the 8 same meaning as is set forth in the New York state banking law or regu- 9 lations of the New York state banking department or as is set forth in 10 the laws of the United States or regulations of the board of governors 11 of the federal reserve system. 12 (d) The term "subsidiary" means a corporation or association of which 13 over fifty percent of the number of shares of stock entitling the hold- 14 ers thereof to vote for the election of directors or trustees is owned 15 by the taxpayer. 16 (e) The term "subsidiary capital" means investments in the stock of 17 subsidiaries and any indebtedness from subsidiaries, exclusive of 18 accounts receivable acquired in the ordinary course of trade or business 19 for services rendered or for sales of property held primarily for sale 20 to customers, whether or not evidenced by written instrument, on which 21 interest is not claimed and deducted by the subsidiary for purposes of 22 taxation under this part or subchapter two of this chapter, provided, 23 however, there shall be deducted from subsidiary capital any liabilities 24 payable by their terms on demand or within one year from the date 25 incurred, other than loans or advances outstanding for more than a year 26 as of any date during the year covered by the return, which are attrib- 27 utable to subsidiary capital. 28 (f) The term "financial holding company" means a corporation that, 29 pursuant to subsection (l) of section four of the federal bank holding 30 company act of nineteen hundred fifty-six, as amended, has filed with 31 the federal reserve board a written declaration that the corporation 32 elects to be a financial holding company and whose election has not been 33 found to be ineffective by the federal reserve board. 34 § 11-639 Imposition of tax. (a) (1) For the privilege of doing busi- 35 ness in the city in a corporate or organized capacity, a tax, computed 36 under section 11-643 of this part, is hereby annually imposed on every 37 banking corporation for each of its taxable years, or any part thereof, 38 beginning on or after January first, nineteen hundred seventy-three and 39 before January first, two thousand fifteen. 40 (2) For the privilege of doing business in the city in a corporate or 41 organized capacity, a tax, computed under section 11-643 of this part, 42 is hereby annually imposed on every banking corporation for each taxable 43 year, or any part thereof, commencing on or after January first, two 44 thousand fifteen, where such banking corporation (i) has an election in 45 effect under subsection (a) of section thirteen hundred sixty-two of the 46 internal revenue code of 1986, as amended, or (ii) is a qualified 47 subchapter S subsidiary within the meaning of paragraph three of 48 subsection (b) of section thirteen hundred sixty-one of the internal 49 revenue code of nineteen eighty-six, as amended. 50 (b) In the case of a taxpayer whose taxable year is other than a 51 calendar year, there is hereby imposed a tax for the privilege of doing 52 business in the city in a corporate or organized capacity for the period 53 beginning January first, nineteen hundred seventy-three and extending 54 through the subsequent part of its first such taxable year ending after 55 such date. Such tax shall be computed under section 11-643 of this part 56 on the basis of such taxpayer's entire net income, or other applicableS. 8474 524 1 basis as the case may be, for such period and shall be paid with a 2 return which shall be separately filed with the department of finance 3 not later than the fifteenth day of the third month succeeding the close 4 of such period. The requirements of sections 11-644 and 11-645 of this 5 part, relating to declarations and payments of estimated tax, except 6 subdivision (a) of section 11-645 of this part, shall not be applicable 7 to the tax imposed by this subdivision. 8 (c) For taxable years beginning on or after January first, two thou- 9 sand eleven, (1) a banking corporation is doing business in the city in 10 a corporate or organized capacity if (i) it has issued credit cards to 11 one thousand or more customers who have a mailing address within the 12 city as of the last day of its taxable year, or (ii) it has merchant 13 customer contracts with merchants and the total number of locations 14 covered by those contracts equals one thousand or more locations in the 15 city to whom the banking corporation remitted payments for credit card 16 transactions during the taxable year, or (iii) it has receipts of one 17 million dollars or more in the taxable year from its customers who have 18 been issued credit cards by the banking corporation and have a mailing 19 address within the city, or (iv) it has receipts of one million dollars 20 or more arising from merchant customer contracts with merchants relating 21 to locations in the city, or (v) the sum of the number of customers 22 described in subparagraph (i) of this paragraph plus the number of 23 locations covered by its contracts described in subparagraph (ii) of 24 this paragraph equals one thousand or more, or the amount of its 25 receipts described in subparagraphs (iii) and (iv) of this paragraph 26 equals one million dollars or more. For purposes of this paragraph, 27 receipts from processing credit card transactions for merchants include 28 merchant discount fees received by the banking corporation. 29 (2) As used in this subdivision, the term "credit card" includes bank, 30 credit, travel and entertainment cards. 31 (d) Cross-Reference. For the taxation of corporations that are not 32 described in paragraph two of subdivision (a) of this section, that were 33 taxable under this subchapter for tax years beginning before January 34 first, two thousand fifteen, see subchapter three-A of this chapter. 35 § 11-640 Banking, corporation defined; exempt corporations. (a) For 36 the purpose of this part, a banking corporation means: 37 (1) every corporation or association organized under the laws of this 38 state which is authorized to do a banking business or which is doing a 39 banking business; 40 (2) every corporation or association organized under the laws of any 41 other state or country which is doing a banking business; 42 (3) every national banking association organized under the authority 43 of the United States which is doing a banking business; 44 (4) every federal savings bank which is doing a banking business; 45 (5) every federal savings and loan association which is doing a bank- 46 ing business; 47 (6) a production credit association organized under the federal farm 48 credit act of nineteen hundred thirty-three, which is doing a banking 49 business and all of whose stock held by the federal production credit 50 corporation has been retired; 51 (7) every other corporation or association organized under the author- 52 ity of the United States which is doing a banking business; 53 (8) the mortgage facilities corporation created in article seven of 54 the private housing finance law; 55 (9) any corporation sixty-five percent or more of whose voting stock 56 is owned or controlled, directly or indirectly, by a corporation orS. 8474 525 1 corporations subject to article three-a of the banking law, or regis- 2 tered under the federal bank holding company act of nineteen hundred 3 fifty-six, as amended, or registered as a savings and loan holding 4 company, but excluding a diversified savings and loan holding company, 5 under the federal national housing act, as amended, or by a corporation 6 or corporations described in paragraphs one through eight of this subdi- 7 vision, provided the corporation whose voting stock is so owned or 8 controlled is principally engaged in a business, regardless of where 9 conducted, which (i) might be lawfully conducted by a corporation 10 subject to article three of the banking law or by a national banking 11 association or (ii) is so closely related to banking or managing or 12 controlling banks as to be a proper incident thereto, as set forth in 13 paragraph eight of subsection (c) or subparagraph (F) of paragraph four 14 of subsection (k) of section four of the federal bank holding company 15 act of nineteen hundred fifty-six, as amended, or (iii) holds and 16 manages investment assets, including but not limited to bonds, notes, 17 debentures and other obligations for the payment of money, stocks, part- 18 nership interests or other equity interests, and other investment secu- 19 rities, and which is not a business described in subparagraph (i) or 20 (ii) of this paragraph. 21 (b) Banking business defined. The words "banking business" as used in 22 this section mean such business as a corporation or association may be 23 created to do under article three, three-B, five, five-A, six or ten of 24 the banking law or any business which a corporation or association is 25 authorized by such article to do. However, with respect to a national 26 banking association organized under the authority of the United States, 27 a federal savings bank, a federal savings and loan association or a 28 production credit association, the words "banking business" as used in 29 this section mean such business as a national banking association, 30 federal savings bank, federal savings and loan association or production 31 credit association, respectively, may be created to do or is authorized 32 to do under the laws of the United States or this state. The words 33 "banking business" as used in this section shall also mean such business 34 as any corporation or association organized under the authority of the 35 United States or organized under the laws of any other state or country 36 has authority to do which is substantially similar to the business which 37 a corporation or association may be created to do under article three, 38 three-B, five, five-A, six or ten of the banking law or any business 39 which a corporation or association is authorized by such article to do. 40 (c) Exempt corporations. A trust company all of whose capital stock is 41 owned by twenty or more savings banks organized under New York law shall 42 be exempt from the tax under this part. 43 (d) Corporations taxable under subchapter two. Notwithstanding the 44 provisions of this part, all corporations of classes now or heretofore 45 taxable under subchapter two of this chapter shall continue to be taxa- 46 ble under subchapter two of this chapter, except: (1) corporations 47 organized under article five-A of the banking law; (2) corporations 48 subject to article three-A of the banking law, or registered under the 49 federal bank holding company act of nineteen hundred fifty-six, as 50 amended, or registered as a savings and loan holding company, but 51 excluding a diversified savings and loan holding company, under the 52 federal national housing act, as amended, which make a combined return 53 under the provisions of subdivision (f) of section 11-646 of this part; 54 (3) banking corporations described in paragraph nine of subdivision (a) 55 of this section; and (4) any captive REIT or captive RIC that is 56 required to be included in a combined return under the provisions ofS. 8474 526 1 section 11-646 of this part. Provided, however, that a corporation 2 described in paragraph three of this subdivision which was subject to 3 the tax imposed by subchapter two of this chapter for its taxable year 4 ending during nineteen hundred eighty-four may, on or before the due 5 date for filing its return, determined with regard to extensions, for 6 its taxable year ending during nineteen hundred eighty-five, make a one 7 time election to continue to be taxable under such subchapter two. Such 8 election shall continue to be in effect until revoked by the taxpayer. 9 In no event shall such election or revocation be for a part of a taxable 10 year. 11 (e) Corporations taxable under article thirty-three of the tax law. 12 Except for corporations described in subsection (l) of section fourteen 13 hundred fifty-three of the tax law, corporations liable to tax under 14 article thirty-three of the tax law shall not be subject to tax under 15 this part. 16 (f) A banking corporation organized under the laws of a country, or 17 any political subdivision thereof, other than the United States shall 18 not be deemed to be doing business in the city under this subchapter if 19 its activities in the city are limited solely to (1) investing or trad- 20 ing in stocks and securities for its own account within the meaning of 21 clause (ii) of subparagraph (A) of paragraph two of subsection (b) of 22 section eight hundred sixty-four of the internal revenue code or (2) 23 investing or trading in commodities for its own account within the mean- 24 ing of clause (ii) of subparagraph (B) of paragraph two of subsection 25 (b) of section eight hundred sixty-four of the internal revenue code or 26 (3) any combination of activities described in paragraphs one and two of 27 this subdivision. 28 (g) Transitional provisions relating to the enactment and implementa- 29 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding 30 anything to the contrary contained in this section other than subdivi- 31 sion (m) of this section, a corporation that was in existence before 32 January first, two thousand and was subject to tax under subchapter two 33 of this chapter for its last taxable year beginning before January 34 first, two thousand, shall continue to be taxable under subchapter two 35 of this chapter for all taxable years beginning on or after January 36 first, two thousand and before January first, two thousand one; 37 provided, however, this shall not apply to any taxable year during which 38 such corporation is a banking corporation described in paragraphs one 39 through eight of subdivision (a) of this section. Notwithstanding 40 anything to the contrary contained in this section other than subdivi- 41 sion (m) of this section, a banking corporation that was in existence 42 before January first, two thousand and was subject to tax under this 43 subchapter for its last taxable year beginning before January first, two 44 thousand, shall continue to be taxable under this subchapter for all 45 taxable years beginning on or after January first, two thousand and 46 before January first, two thousand one. Provided, however, that nothing 47 in this subdivision shall prohibit a corporation that elected pursuant 48 to subdivision (d) of this section to be taxable under subchapter two of 49 this chapter from revoking that election in accordance with such subdi- 50 vision (d). 51 For purposes of this paragraph, a corporation shall be considered to 52 be subject to tax under subchapter two of this chapter for a taxable 53 year if such corporation was not a taxpayer but was properly included in 54 a combined report filed pursuant to subdivision four of section 11-605 55 of this chapter for such taxable year and a corporation shall be consid- 56 ered to be subject to tax under this subchapter for a taxable year ifS. 8474 527 1 such corporation was not a taxpayer but was properly included in a 2 combined report filed pursuant to subdivision (f) or (g) of section 3 11-646 of this chapter for such taxable year. A corporation that was in 4 existence before January first, two thousand but first becomes a taxpay- 5 er in a taxable year beginning on or after January first, two thousand 6 and before January first, two thousand one, shall be considered for 7 purposes of this paragraph to have been subject to tax under subchapter 8 two of this chapter for its last taxable year beginning before January 9 first, two thousand if such corporation would have been subject to tax 10 under such subchapter for such taxable year if it had been a taxpayer 11 during such taxable year. A corporation that was in existence before 12 January first, two thousand but first becomes a taxpayer in a taxable 13 year beginning on or after January first, two thousand and before Janu- 14 ary first, two thousand one, shall be considered for purposes of this 15 paragraph to have been subject to tax under this subchapter for its last 16 taxable year beginning before January first, two thousand if such corpo- 17 ration would have been subject to tax under this subchapter for such 18 taxable year if it had been a taxpayer during such taxable year. 19 (2) Notwithstanding anything to the contrary contained in this section 20 other than subdivision (m) of this section, a corporation formed on or 21 after January first, two thousand and before January first, two thousand 22 one may elect to be subject to tax under this subchapter or under 23 subchapter two of this chapter for its first taxable year beginning on 24 or after January first, two thousand and before January first, two thou- 25 sand one in which either (i) sixty-five percent or more of its voting 26 stock is owned or controlled, directly or indirectly by a financial 27 holding company, provided the corporation whose voting stock is so owned 28 or controlled is principally engaged in activities that are described in 29 paragraph four or five of subdivision (k) of section four of the federal 30 bank holding company act of nineteen hundred fifty-six, as amended and 31 the regulations promulgated pursuant to the authority of such section or 32 (ii) it is a financial subsidiary. An election under this paragraph may 33 not be made by a corporation described in paragraphs one through eight 34 of subdivision (a) of this section or in subdivision (e) of this 35 section. In addition, an election under this paragraph may not be made 36 by a corporation that is a party to a reorganization, as defined in 37 subsection (a) of section three hundred sixty-eight of the internal 38 revenue code of nineteen hundred eighty-six, as amended, of a corpo- 39 ration described in paragraph one of this subdivision if both corpo- 40 rations were sixty-five percent or more owned or controlled, directly or 41 indirectly by the same interests at the time of the reorganization. 42 An election under this paragraph must be made by the taxpayer on or 43 before the due date for filing its return, determined with regard to 44 extensions of time for filing, for the applicable taxable year. The 45 election to be taxed under subchapter two of this chapter shall be made 46 by the taxpayer by filing the return required pursuant to subdivision 47 one of section 11-605 of this chapter and the election to be taxed under 48 this subchapter shall be made by the taxpayer by filing the return 49 required pursuant to subdivision (a) of section 11-646 of this chapter. 50 Any election made pursuant to this paragraph shall be irrevocable and 51 shall apply to each subsequent taxable year beginning on or after Janu- 52 ary first, two thousand and before January first, two thousand one, 53 provided that the stock ownership requirements described in subparagraph 54 (i) of this paragraph are met or such corporation described in subpara- 55 graph (ii) of this paragraph continues as a financial subsidiary.S. 8474 528 1 (3) For purposes of this section, a financial subsidiary means a 2 corporation (i) sixty-five percent or more of whose voting stock is 3 owned or controlled, directly or indirectly by a banking corporation 4 described in paragraph one, two or three of subdivision (a) of this 5 section and (ii) is described in subdivision (g) of section five thou- 6 sand one hundred thirty-six-A of the revised statutes of the United 7 States or section forty-six of the federal deposit insurance act. For 8 purposes of this subchapter, the term "banking corporation" shall 9 include a corporation electing to be taxed under this subchapter pursu- 10 ant to paragraph two of this subdivision for so long as such election 11 shall be in effect. 12 (4) The provisions of this subdivision shall not apply to a captive 13 REIT or a captive RIC. 14 (h) Transitional provisions relating to the enactment and implementa- 15 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything 16 to the contrary contained in this section other than subdivision (m) of 17 this section, a corporation that was in existence before January first, 18 two thousand one and was subject to tax under subchapter two of this 19 chapter for its last taxable year beginning before January first, two 20 thousand one, shall continue to be taxable under subchapter two for all 21 taxable years beginning on or after January first, two thousand one and 22 before January first, two thousand three, provided, however, this shall 23 not apply to any taxable year during which such corporation is a banking 24 corporation described in paragraphs one through eight of subdivision (a) 25 of this section. Notwithstanding anything to the contrary contained in 26 this section other than subdivision (m) of this section, a banking 27 corporation that was in existence before January first, two thousand one 28 and was subject to tax under this subchapter for its last taxable year 29 beginning before January first, two thousand one, shall continue to be 30 taxable under this subchapter for all taxable years beginning on or 31 after January first, two thousand one and before January first, two 32 thousand three. Provided, however, that nothing in this subdivision 33 shall prohibit a corporation that elected pursuant to subdivision (d) of 34 this section to be taxable under subchapter two of this chapter from 35 revoking that election in accordance with subdivision (d) of this 36 section. 37 For purposes of this paragraph, a corporation shall be considered to 38 be subject to tax under subchapter two of this chapter for a taxable 39 year if such corporation was not a taxpayer but was properly included in 40 a combined report filed pursuant to subdivision four of section 11-605 41 of this chapter for such taxable year and a corporation shall be consid- 42 ered to be subject to tax under this subchapter for a taxable year if 43 such corporation was not a taxpayer but was properly included in a 44 combined report filed pursuant to subdivision (f) or (g) of section 45 11-646 of this chapter for such taxable year. A corporation that was in 46 existence before January first, two thousand one but first becomes a 47 taxpayer in a taxable year beginning on or after January first, two 48 thousand one and before January first, two thousand three, shall be 49 considered for purposes of this paragraph to have been subject to tax 50 under subchapter two of this chapter for its last taxable year beginning 51 before January first, two thousand one if such corporation would have 52 been subject to tax under such subchapter for such taxable year if it 53 had been a taxpayer during such taxable year. A corporation that was in 54 existence before January first, two thousand one but first becomes a 55 taxpayer in a taxable year beginning on or after January first, two 56 thousand one and before January first, two thousand three, shall beS. 8474 529 1 considered for purposes of this paragraph to have been subject to tax 2 under this subchapter for its last taxable year beginning before January 3 first, two thousand one if such corporation would have been subject to 4 tax under this subchapter for such taxable year if it had been a taxpay- 5 er during such taxable year. 6 (2) Notwithstanding anything to the contrary contained in this section 7 other than subdivision (m) of this section, a corporation formed on or 8 after January first, two thousand one and before January first, two 9 thousand three may elect to be subject to tax under this subchapter or 10 under subchapter two of this chapter for its first taxable year begin- 11 ning on or after January first, two thousand one and before January 12 first, two thousand three in which either (i) sixty-five percent or more 13 of its voting stock is owned or controlled, directly or indirectly by a 14 financial holding company, provided the corporation whose voting stock 15 is so owned or controlled is principally engaged in activities that are 16 described in paragraph four or five of subdivision (k) of section four 17 of the federal bank holding company act of nineteen hundred fifty-six, 18 as amended and the regulations promulgated pursuant to the authority of 19 such section or (ii) it is a financial subsidiary. An election under 20 this paragraph may not be made by a corporation described in paragraphs 21 one through eight of subdivision (a) of this section or in subdivision 22 (e) of this section. In addition, an election under this paragraph may 23 not be made by a corporation that is a party to a reorganization, as 24 defined in subsection (a) of section three hundred sixty-eight of the 25 internal revenue code of nineteen hundred eighty-six, as amended, of a 26 corporation described in paragraph one of this subdivision if both 27 corporations were sixty-five percent or more owned or controlled, 28 directly or indirectly by the same interests at the time of the reorgan- 29 ization. 30 An election under this paragraph must be made by the taxpayer on or 31 before the due date for filing its return, determined with regard to 32 extensions of time for filing, for the applicable taxable year. The 33 election to be taxed under subchapter two of this chapter shall be made 34 by the taxpayer by filing the return required pursuant to subdivision 35 one of section 11-605 of this chapter and the election to be taxed under 36 this subchapter shall be made by the taxpayer by filing the return 37 required pursuant to subdivision (a) of section 11-646 of this chapter. 38 Any election made pursuant to this paragraph shall be irrevocable and 39 shall apply to each subsequent taxable year beginning on or after Janu- 40 ary first, two thousand one and before January first, two thousand 41 three, provided that the stock ownership requirements described in 42 subparagraph (i) of this paragraph are met or such corporation described 43 in subparagraph (ii) of this paragraph continues as a financial subsid- 44 iary. 45 (3) For purposes of this section, a financial subsidiary means a 46 corporation (i) sixty-five percent or more of whose voting stock is 47 owned or controlled, directly or indirectly by a banking corporation 48 described in paragraph one, two or three of subdivision (a) of this 49 section and (ii) is described in subdivision (g) of section five thou- 50 sand one hundred thirty-six-A of the revised statutes of the United 51 States or section forty-six of the federal deposit insurance act. For 52 purposes of this subchapter, the term "banking corporation" shall 53 include a corporation electing to be taxed under this subchapter pursu- 54 ant to paragraph two of this subdivision for so long as such election 55 shall be in effect.S. 8474 530 1 (i) Transitional provisions relating to the enactment and implementa- 2 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything 3 to the contrary contained in this section other than subdivision (m) of 4 this section, a corporation that was in existence before January first, 5 two thousand three and was subject to tax under subchapter two of this 6 chapter for its last taxable year beginning before January first, two 7 thousand three, shall continue to be taxable under subchapter two for 8 all taxable years beginning on or after January first, two thousand 9 three and before January first, two thousand four provided, however, 10 this shall not apply to any taxable year during which such corporation 11 is a banking corporation described in paragraphs one through eight of 12 subdivision (a) of this section. Notwithstanding anything to the contra- 13 ry contained in this section other than subdivision (m) of this section, 14 a banking corporation that was in existence before January first, two 15 thousand three and was subject to tax under this subchapter for its last 16 taxable year beginning before January first, two thousand three, shall 17 continue to be taxable under this subchapter for all taxable years 18 beginning on or after January first, two thousand three and before Janu- 19 ary first, two thousand four. Provided, however, that nothing in this 20 subdivision shall prohibit a corporation that elected pursuant to subdi- 21 vision (d) of this section to be taxable under subchapter two of this 22 chapter from revoking that election in accordance with subdivision (d) 23 of this section. 24 For purposes of this paragraph, a corporation shall be considered to 25 be subject to tax under subchapter two of this chapter for a taxable 26 year if such corporation was not a taxpayer but was properly included in 27 a combined report filed pursuant to subdivision four of section 11-605 28 of this chapter for such taxable year and a corporation shall be consid- 29 ered to be subject to tax under this subchapter for a taxable year if 30 such corporation was not a taxpayer but was properly included in a 31 combined report filed pursuant to subdivision (f) or (g) of section 32 11-646 of this chapter for such taxable year. A corporation that was in 33 existence before January first, two thousand three but first becomes a 34 taxpayer in a taxable year beginning on or after January first, two 35 thousand three and before January first, two thousand four, shall be 36 considered for purposes of this paragraph to have been subject to tax 37 under subchapter two of this chapter for its last taxable year beginning 38 before January first, two thousand three if such corporation would have 39 been subject to tax under such subchapter for such taxable year if it 40 had been a taxpayer during such taxable year. A corporation that was in 41 existence before January first, two thousand three but first becomes a 42 taxpayer in a taxable year beginning on or after January first, two 43 thousand three and before January first, two thousand four, shall be 44 considered for purposes of this paragraph to have been subject to tax 45 under this subchapter for its last taxable year beginning before January 46 first, two thousand three if such corporation would have been subject to 47 tax under this subchapter for such taxable year if it had been a taxpay- 48 er during such taxable year. 49 (2) Notwithstanding anything to the contrary contained in this section 50 other than subdivision (m) of this section, a corporation formed on or 51 after January first, two thousand three and before January first, two 52 thousand four may elect to be subject to tax under this subchapter or 53 under subchapter two of this chapter for its first taxable year begin- 54 ning on or after January first, two thousand three and before January 55 first, two thousand four in which either (i) sixty-five percent or more 56 of its voting stock is owned or controlled, directly or indirectly by aS. 8474 531 1 financial holding company, provided the corporation whose voting stock 2 is so owned or controlled is principally engaged in activities that are 3 described in paragraphs four or five of subdivision (k) of section four 4 of the federal bank holding company act of nineteen hundred fifty-six, 5 as amended and the regulations promulgated pursuant to the authority of 6 such section or (ii) it is a financial subsidiary. An election under 7 this paragraph may not be made by a corporation described in paragraphs 8 one through eight of subdivision (a) of this section or in subdivision 9 (e) of this section. In addition, an election under this paragraph may 10 not be made by a corporation that is a party to a reorganization, as 11 defined in subsection (a) of section three hundred sixty-eight of the 12 internal revenue code of nineteen hundred eighty-six, as amended, of a 13 corporation described in paragraph one of this subdivision if both 14 corporations were sixty-five percent or more owned or controlled, 15 directly or indirectly by the same interests at the time of the reorgan- 16 ization. 17 An election under this paragraph must be made by the taxpayer on or 18 before the due date for filing its return, determined with regard to 19 extensions of time for filing, for the applicable taxable year. The 20 election to be taxed under subchapter two of this chapter shall be made 21 by the taxpayer by filing the return required pursuant to subdivision 22 one of section 11-605 of this chapter and the election to be taxed under 23 this subchapter shall be made by the taxpayer by filing the return 24 required pursuant to subdivision (a) of section 11-646 of this chapter. 25 Any election made pursuant to this paragraph shall be irrevocable and 26 shall apply to each subsequent taxable year beginning on or after Janu- 27 ary first, two thousand three and before January first, two thousand 28 four, provided that the stock ownership requirements described in 29 subparagraph (i) of this paragraph are met or such corporation described 30 in subparagraph (ii) of this paragraph continues as a financial subsid- 31 iary. 32 (3) For purposes of this section, a financial subsidiary means a 33 corporation (i) sixty-five percent or more of whose voting stock is 34 owned or controlled, directly or indirectly by a banking corporation 35 described in paragraph one, two or three of subdivision (a) of this 36 section and (ii) is described in subdivision (g) of section five thou- 37 sand one hundred thirty-six-A of the revised statutes of the United 38 States or section forty-six of the federal deposit insurance act. For 39 purposes of this subchapter, the term "banking corporation" shall 40 include a corporation electing to be taxed under this subchapter pursu- 41 ant to paragraph two of this subdivision for so long as such election 42 shall be in effect. 43 (j) Transitional provisions relating to the enactment and implementa- 44 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything 45 to the contrary contained in this section other than subdivision (m) of 46 this section, a corporation that was in existence before January first, 47 two thousand four and was subject to tax under subchapter two of this 48 chapter for its last taxable year beginning before January first, two 49 thousand four, shall continue to be taxable under subchapter two for all 50 taxable years beginning on or after January first, two thousand four and 51 before January first, two thousand six. The preceding sentence shall not 52 apply to any taxable year during which such corporation is a banking 53 corporation described in paragraphs one through eight of subdivision (a) 54 of this section. Notwithstanding anything to the contrary contained in 55 this section other than subdivision (m) of this section, a banking 56 corporation that was in existence before January first, two thousandS. 8474 532 1 four and was subject to tax under this subchapter for its last taxable 2 year beginning before January first, two thousand four, shall continue 3 to be taxable under this subchapter for all taxable years beginning on 4 or after January first, two thousand four and before January first, two 5 thousand six. Provided, however, that nothing in this subdivision shall 6 prohibit a corporation that elected pursuant to subdivision (d) of this 7 section to be taxable under subchapter two of this chapter from revoking 8 that election in accordance with subdivision (d) of this section. 9 For purposes of this paragraph, a corporation shall be considered to 10 be subject to tax under subchapter two of this chapter for a taxable 11 year if such corporation was not a taxpayer but was properly included in 12 a combined report filed pursuant to subdivision four of section 11-605 13 of this chapter for such taxable year and a corporation shall be consid- 14 ered to be subject to tax under this subchapter for a taxable year if 15 such corporation was not a taxpayer but was properly included in a 16 combined report filed pursuant to subdivision (f) or (g) of section 17 11-646 of this chapter for such taxable year. A corporation that was in 18 existence before January first, two thousand four but first becomes a 19 taxpayer in a taxable year beginning on or after January first, two 20 thousand four and before January first, two thousand six, shall be 21 considered for purposes of this paragraph to have been subject to tax 22 under subchapter two of this chapter for its last taxable year beginning 23 before January first, two thousand four if such corporation would have 24 been subject to tax under such subchapter for such taxable year if it 25 had been a taxpayer during such taxable year. A corporation that was in 26 existence before January first, two thousand four but first becomes a 27 taxpayer in a taxable year beginning on or after January first, two 28 thousand four and before January first, two thousand six, shall be 29 considered for purposes of this paragraph to have been subject to tax 30 under this subchapter for its last taxable year beginning before January 31 first, two thousand four if such corporation would have been subject to 32 tax under this subchapter for such taxable year if it had been a taxpay- 33 er during such taxable year. 34 (2) Notwithstanding anything to the contrary contained in this section 35 other than subdivision (m) of this section, a corporation formed on or 36 after January first, two thousand four and before January first, two 37 thousand six may elect to be subject to tax under this subchapter or 38 under subchapter two of this chapter for its first taxable year begin- 39 ning on or after January first, two thousand four and before January 40 first, two thousand six in which either (i) sixty-five percent or more 41 of its voting stock is owned or controlled, directly or indirectly by a 42 financial holding company, provided the corporation whose voting stock 43 is so owned or controlled is principally engaged in activities that are 44 described in paragraph four or five of subdivision (k) of section four 45 of the federal bank holding company act of nineteen hundred fifty-six, 46 as amended and the regulations promulgated pursuant to the authority of 47 such section or (ii) it is a financial subsidiary. An election under 48 this paragraph may not be made by a corporation described in paragraphs 49 one through eight of subdivision (a) of this section or in subdivision 50 (e) of this section. In addition, an election under this paragraph may 51 not be made by a corporation that is a party to a reorganization, as 52 defined in subsection (a) of section three hundred sixty-eight of the 53 internal revenue code of nineteen hundred eighty-six, as amended, of a 54 corporation described in paragraph one of this subdivision if both 55 corporations were sixty-five percent or more owned or controlled,S. 8474 533 1 directly or indirectly by the same interests at the time of the reorgan- 2 ization. 3 An election under this paragraph must be made by the taxpayer on or 4 before the due date for filing its return, determined with regard to 5 extensions of time for filing, for the applicable taxable year. The 6 election to be taxed under subchapter two of this chapter shall be made 7 by the taxpayer by filing the return required pursuant to subdivision 8 one of section 11-605 of this chapter and the election to be taxed under 9 this subchapter shall be made by the taxpayer by filing the return 10 required pursuant to subdivision (a) of section 11-646 of this chapter. 11 Any election made pursuant to this paragraph shall be irrevocable and 12 shall apply to each subsequent taxable year beginning on or after Janu- 13 ary first, two thousand four and before January first, two thousand six, 14 provided that the stock ownership requirements described in subparagraph 15 (i) of this paragraph are met or such corporation described in subpara- 16 graph (ii) of this paragraph continues as a financial subsidiary. 17 (3) For purposes of this section, a financial subsidiary means a 18 corporation (i) sixty-five percent or more of whose voting stock is 19 owned or controlled, directly or indirectly by a banking corporation 20 described in paragraph one, two or three of subdivision (a) of this 21 section and (ii) is described in subdivision (g) of section five thou- 22 sand one hundred thirty-six-A of the revised statutes of the United 23 States or section forty-six of the federal deposit insurance act. For 24 purposes of this subchapter, the term "banking corporation" shall 25 include a corporation electing to be taxed under this subchapter pursu- 26 ant to paragraph two of this subdivision for so long as such election 27 shall be in effect. 28 (k) Transitional provisions relating to the enactment and implementa- 29 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything 30 to the contrary contained in this section other than subdivision (m) of 31 this section, a corporation that was in existence before January first, 32 two thousand six and was subject to tax under subchapter two of this 33 chapter for its last taxable year beginning before January first, two 34 thousand six, shall continue to be taxable under subchapter two of this 35 chapter for all taxable years beginning on or after January first, two 36 thousand six and before January first, two thousand eight, provided, 37 however, this shall not apply to any taxable year during which such 38 corporation is a banking corporation described in paragraphs one through 39 eight of subdivision (a) of this section. Notwithstanding anything to 40 the contrary contained in this section other than subdivision (m) of 41 this section, a banking corporation that was in existence before January 42 first, two thousand six and was subject to tax under this subchapter for 43 its last taxable year beginning before January first, two thousand six, 44 shall continue to be taxable under this subchapter for all taxable years 45 beginning on or after January first, two thousand six and before January 46 first, two thousand eight. Provided, however, that nothing in this 47 subdivision shall prohibit a corporation that elected pursuant to subdi- 48 vision (d) of this section to be taxable under subchapter two of this 49 chapter from revoking that election in accordance with subdivision (d) 50 of this section. 51 For purposes of this paragraph, a corporation shall be considered to 52 be subject to tax under subchapter two of this chapter for a taxable 53 year if such corporation was not a taxpayer but was properly included in 54 a combined report filed pursuant to subdivision four of section 11-605 55 of this chapter for such taxable year and a corporation shall be consid- 56 ered to be subject to tax under this subchapter for a taxable year ifS. 8474 534 1 such corporation was not a taxpayer but was properly included in a 2 combined report filed pursuant to subdivision (f) or (g) of section 3 11-646 of this part for such taxable year. A corporation that was in 4 existence before January first, two thousand six but first becomes a 5 taxpayer in a taxable year beginning on or after January first, two 6 thousand six and before January first, two thousand eight, shall be 7 considered for purposes of this paragraph to have been subject to tax 8 under subchapter two of this chapter for its last taxable year beginning 9 before January first, two thousand six if such corporation would have 10 been subject to tax under such subchapter for such taxable year if it 11 had been a taxpayer during such taxable year. A corporation that was in 12 existence before January first, two thousand six but first becomes a 13 taxpayer in a taxable year beginning on or after January first, two 14 thousand six and before January first, two thousand eight, shall be 15 considered for purposes of this paragraph to have been subject to tax 16 under this subchapter for its last taxable year beginning before January 17 first, two thousand six if such corporation would have been subject to 18 tax under this subchapter for such taxable year if it had been a taxpay- 19 er during such taxable year. 20 (2) Notwithstanding anything to the contrary contained in this section 21 other than subdivision (m) of this section, a corporation formed on or 22 after January first, two thousand six and before January first, two 23 thousand eight may elect to be subject to tax under this subchapter or 24 under subchapter two of this chapter for its first taxable year begin- 25 ning on or after January first, two thousand six and before January 26 first, two thousand eight in which either (i) sixty-five percent or more 27 of its voting stock is owned or controlled, directly or indirectly by a 28 financial holding company, provided the corporation whose voting stock 29 is so owned or controlled is principally engaged in activities that are 30 described in paragraph four or five of subdivision (k) of section four 31 of the federal bank holding company act of nineteen hundred fifty-six, 32 as amended and the regulations promulgated pursuant to the authority of 33 such section or (ii) it is a financial subsidiary. An election under 34 this paragraph may not be made by a corporation described in paragraphs 35 one through eight of subdivision (a) of this section or in subdivision 36 (e) of this section. In addition, an election under this paragraph may 37 not be made by a corporation that is a party to a reorganization, as 38 defined in subsection (a) of section three hundred sixty-eight of the 39 internal revenue code of nineteen hundred eighty-six, as amended, of a 40 corporation described in paragraph one of this subdivision if both 41 corporations were sixty-five percent or more owned or controlled, 42 directly or indirectly by the same interests at the time of the reorgan- 43 ization. 44 An election under this paragraph must be made by the taxpayer on or 45 before the due date for filing its return, determined with regard to 46 extensions of time for filing, for the applicable taxable year. The 47 election to be taxed under subchapter two of this chapter shall be made 48 by the taxpayer by filing the return required pursuant to subdivision 49 one of section 11-605 of this chapter and the election to be taxed under 50 this subchapter shall be made by the taxpayer by filing the return 51 required pursuant to subdivision (a) of section 11-646 of this part. Any 52 election made pursuant to this paragraph shall be irrevocable and shall 53 apply to each subsequent taxable year beginning on or after January 54 first, two thousand six and before January first, two thousand eight, 55 provided that the stock ownership requirements described in subparagraphS. 8474 535 1 (i) of this paragraph are met or such corporation described in subpara- 2 graph (ii) of this paragraph continues as a financial subsidiary. 3 (3) For purposes of this section, a financial subsidiary means a 4 corporation (i) sixty-five percent or more of whose voting stock is 5 owned or controlled, directly or indirectly by a banking corporation 6 described in paragraph one, two or three of subdivision (a) of this 7 section and (ii) is described in subdivision (g) of section five thou- 8 sand one hundred thirty-six-A of the revised statutes of the United 9 States or section forty-six of the federal deposit insurance act. For 10 purposes of this subchapter, the term "banking corporation" shall 11 include a corporation electing to be taxed under this subchapter pursu- 12 ant to paragraph two of this subdivision for so long as such election 13 shall be in effect. 14 (l) Transitional provisions relating to the enactment and implementa- 15 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything 16 to the contrary contained in this section other than subdivision (m) of 17 this section, a corporation that was in existence before January first, 18 two thousand fourteen and was subject to tax under subchapter two of 19 this chapter for its last taxable year beginning before January first, 20 two thousand fourteen, shall continue to be taxable under such subchap- 21 ter for all taxable years beginning on or after January first, two thou- 22 sand fourteen and before January first, two thousand seventeen, 23 provided, however, this shall not apply to any taxable year during which 24 such corporation is a banking corporation described in paragraphs one 25 through eight of subdivision (a) of this section. Notwithstanding 26 anything to the contrary contained in this section other than subdivi- 27 sion (m) of this section, a banking corporation or corporation that was 28 in existence before January first, two thousand fourteen and was subject 29 to tax under this subchapter for its last taxable year beginning before 30 January first, two thousand fourteen, shall continue to be taxable under 31 this subchapter for all taxable years beginning on or after January 32 first, two thousand fourteen and before January first, two thousand 33 seventeen only if the corporation is a banking corporation as defined in 34 subdivision (a) of this section or the corporation satisfies the 35 requirements for a corporation to elect to be taxable under this 36 subchapter. Provided further, that nothing in this subdivision shall 37 prohibit a corporation that elected pursuant to subdivision (d) of this 38 section to be taxable under subchapter two of this chapter from revoking 39 that election in accordance with subdivision (d) of this section. For 40 purposes of this paragraph, a corporation shall be considered to be 41 subject to tax under subchapter two of this chapter for a taxable year 42 if such corporation was not a taxpayer but was properly included in a 43 combined report filed pursuant to subdivision four of section 11-605 of 44 this chapter for such taxable year and a corporation shall be considered 45 to be subject to tax under this subchapter for a taxable year if such 46 corporation was not a taxpayer but was properly included in a combined 47 report filed pursuant to subdivision (f) or (g) of section 11-646 of 48 this part for such taxable year. A corporation that was in existence 49 before January first, two thousand fourteen but first becomes a taxpayer 50 in a taxable year beginning on or after January first, two thousand 51 fourteen and before January first, two thousand seventeen, shall be 52 considered for purposes of this paragraph to have been subject to tax 53 under subchapter two of this chapter for its last taxable year beginning 54 before January first, two thousand fourteen if such corporation would 55 have been subject to tax under such subchapter for such taxable year if 56 it had been a taxpayer during such taxable year. A corporation that wasS. 8474 536 1 in existence before January first, two thousand fourteen but first 2 becomes a taxpayer in a taxable year beginning on or after January 3 first, two thousand fourteen and before January first, two thousand 4 seventeen, shall be considered for purposes of this paragraph to have 5 been subject to tax under this subchapter for its last taxable year 6 beginning before January first, two thousand fourteen if such corpo- 7 ration would have been subject to tax under this subchapter for such 8 taxable year if it had been a taxpayer during such taxable year. 9 (2) Notwithstanding anything to the contrary contained in this section 10 other than subdivision (m) of this section, a corporation formed on or 11 after January first, two thousand fourteen and before January first, two 12 thousand seventeen may elect to be subject to tax under this subchapter 13 or under subchapter two of this chapter for its first taxable year 14 beginning on or after January first, two thousand fourteen and before 15 January first, two thousand seventeen in which either (i) sixty-five 16 percent or more of its voting stock is owned or controlled, directly or 17 indirectly by a financial holding company, provided the corporation 18 whose voting stock is so owned or controlled is principally engaged in 19 activities that are described in paragraph four or five of subdivision 20 (k) of section four of the federal bank holding company act of nineteen 21 hundred fifty-six, as amended and the regulations promulgated pursuant 22 to the authority of such section or (ii) it is a financial subsidiary. 23 An election under this paragraph may not be made by a corporation 24 described in paragraphs one through eight of subdivision (a) of this 25 section or in subdivision (e) of this section. In addition, an election 26 under this paragraph may not be made by a corporation that is a party to 27 a reorganization, as defined in subsection (a) of section three hundred 28 sixty-eight of the internal revenue code of nineteen hundred eighty-six, 29 as amended, of a corporation described in paragraph one of this subdivi- 30 sion if both corporations were sixty-five percent or more owned or 31 controlled, directly or indirectly by the same interests at the time of 32 the reorganization. 33 An election under this paragraph must be made by the taxpayer on or 34 before the due date for filing its return, determined with regard to 35 extensions of time for filing, for the applicable taxable year. The 36 election to be taxed under subchapter two of this chapter shall be made 37 by the taxpayer by filing the return required pursuant to subdivision 38 one of section 11-605 of this chapter and the election to be taxed under 39 this subchapter shall be made by the taxpayer by filing the return 40 required pursuant to subdivision (a) of section 11-646 of this part. Any 41 election made pursuant to this paragraph shall be irrevocable and shall 42 apply to each subsequent taxable year beginning on or after January 43 first, two thousand fourteen and before January first, two thousand 44 seventeen, provided that the stock ownership and activities requirements 45 described in subparagraph (i) of this paragraph are met or such corpo- 46 ration described in subparagraph (ii) of this paragraph continues as a 47 financial subsidiary. 48 (3) For purposes of this section, a financial subsidiary means a 49 corporation (i) sixty-five percent or more of whose voting stock is 50 owned or controlled, directly or indirectly by a banking corporation 51 described in paragraph one, two or three of subdivision (a) of this 52 section and (ii) is described in subdivision (g) of section five thou- 53 sand one hundred thirty-six-A of the revised statutes of the United 54 States or section forty-six of the federal deposit insurance act. For 55 purposes of this subchapter, the term "banking corporation" shall 56 include a corporation electing to be taxed under this subchapter pursu-S. 8474 537 1 ant to paragraph two of this subdivision for so long as such election 2 shall be in effect. 3 (m) (1) Notwithstanding anything in this part to the contrary, if any 4 of the conditions described in paragraph three of this subdivision apply 5 to a corporation that has made either the election to be taxable under 6 subchapter two of chapter six of this title pursuant to the Gramm-Leach- 7 Bliley transitional provisions in this section, or the election pursuant 8 to subdivision (d) of this section to continue to be taxable under 9 subchapter two of chapter six of this title, hereinafter the "electing 10 corporation", then such corporation shall be deemed to have revoked the 11 election as of the first day of the taxable year in which such condition 12 applied. 13 (2) Notwithstanding anything in this part to the contrary, if any of 14 the conditions described in paragraph three of this subdivision apply to 15 a corporation required to be taxable under subchapter two of chapter six 16 of this title pursuant to the Gramm-Leach-Bliley transitional provisions 17 in this section, hereinafter the "grandfathered corporation", such 18 corporation, if it is otherwise described in subdivision (a) of this 19 section, shall be taxable under this part as of the first day of the 20 taxable year in which such condition applied. 21 (3) The provisions of paragraph one and paragraph two of this subdivi- 22 sion shall apply if any of the following conditions exist or occur with 23 respect to the electing corporation or the grandfathered corporation in 24 a taxable year, including any short taxable year, beginning on or after 25 January first, two thousand nine: 26 (A) the corporation ceases to be a taxpayer under subchapter two of 27 chapter six of this title; 28 (B) the corporation becomes subject to the fixed dollar minimum tax 29 under clause four of subparagraph a of paragraph (E) of subdivision one 30 of section 11-604 of this chapter; 31 (C) the corporation has no wages or receipts allocable to the city 32 pursuant to subdivision three of section 11-604 of this chapter, or is 33 otherwise inactive; provided that this subparagraph shall not apply to a 34 corporation which is engaged in the active conduct of a trade or busi- 35 ness, or substantially all of the assets of which are stock and securi- 36 ties of corporations which are directly or indirectly controlled by it 37 and are engaged in the active conduct of a trade or business; 38 (D) sixty-five percent or more of the voting stock of the corporation 39 becomes owned or controlled directly by a corporation that acquired the 40 stock in a transaction, or series of related transactions, that quali- 41 fies as a purchase within the meaning of paragraph three of subsection 42 (h) of section three hundred thirty-eight of the internal revenue code 43 unless the corporation whose stock was acquired and the corporation 44 acquiring the stock were, immediately prior to such purchase, members of 45 the same affiliated group, as such term is defined in section fifteen 46 hundred four of the internal revenue code without regard to the exclu- 47 sions provided for in subsection (b) of such section; or 48 (E) the corporation, in a transaction or series of related trans- 49 actions, acquires assets, whether by contribution, purchase, or other- 50 wise, having an average value, determined in accordance with subdivision 51 two of section 11-604 of this chapter, or, if greater, a total tax 52 basis, in excess of forty percent of the average value, or, if greater, 53 the total tax basis, of all the assets of the corporation immediately 54 prior to such acquisition and as a result of such acquisition the corpo- 55 ration is principally engaged in a business that is different from the 56 business immediately prior to such acquisition, provided that suchS. 8474 538 1 different business is described in subparagraph (i) or (ii) of paragraph 2 nine of subdivision (a) of this section. 3 (n) Transitional provisions relating to the enactment and implementa- 4 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything 5 to the contrary contained in this section other than subdivision (m) of 6 this section, a corporation that was in existence before January first, 7 two thousand seventeen and was subject to tax under subchapter two of 8 this chapter for its last taxable year beginning before January first, 9 two thousand seventeen, shall continue to be taxable under such subchap- 10 ter for all taxable years beginning on or after January first, two thou- 11 sand seventeen and before January first, two thousand twenty, provided, 12 however, this shall not apply to any taxable year during which such 13 corporation is a banking corporation described in paragraphs one through 14 eight of subdivision (a) of this section. Notwithstanding anything to 15 the contrary contained in this section other than subdivision (m) of 16 this section, a banking corporation or corporation that was in existence 17 before January first, two thousand seventeen and was subject to tax 18 under this subchapter for its last taxable year beginning before January 19 first, two thousand seventeen, shall continue to be taxable under this 20 subchapter for all taxable years beginning on or after January first, 21 two thousand seventeen and before January first, two thousand twenty 22 only if the corporation is a banking corporation as defined in subdivi- 23 sion (a) of this section or the corporation satisfies the requirements 24 for a corporation to elect to be taxable under this subchapter. Provided 25 further, that nothing in this subdivision shall prohibit a corporation 26 that elected pursuant to subdivision (d) of this section to be taxable 27 under subchapter two of this chapter from revoking that election in 28 accordance with subdivision (d) of this section. 29 For purposes of this paragraph, a corporation shall be considered to 30 be subject to tax under subchapter two of this chapter for a taxable 31 year if such corporation was not a taxpayer but was properly included in 32 a combined report filed pursuant to subdivision four of section 11-605 33 of this chapter for such taxable year and a corporation shall be consid- 34 ered to be subject to tax under this subchapter for a taxable year if 35 such corporation was not a taxpayer but was properly included in a 36 combined report filed pursuant to subdivision (f) or (g) of section 37 11-646 of this part for such taxable year. A corporation that was in 38 existence before January first, two thousand seventeen but first becomes 39 a taxpayer in a taxable year beginning on or after January first, two 40 thousand seventeen and before January first, two thousand twenty, shall 41 be considered for purposes of this paragraph to have been subject to tax 42 under subchapter two of this chapter for its last taxable year beginning 43 before January first, two thousand seventeen if such corporation would 44 have been subject to tax under such subchapter for such taxable year if 45 it had been a taxpayer during such taxable year. A corporation that was 46 in existence before January first, two thousand seventeen but first 47 becomes a taxpayer in a taxable year beginning on or after January 48 first, two thousand seventeen and before January first, two thousand 49 twenty, shall be considered for purposes of this paragraph to have been 50 subject to tax under this subchapter for its last taxable year beginning 51 before January first, two thousand seventeen if such corporation would 52 have been subject to tax under this subchapter for such taxable year if 53 it had been a taxpayer during such taxable year. 54 (2) Notwithstanding anything to the contrary contained in this section 55 other than subdivision (m) of this section, a corporation formed on or 56 after January first, two thousand seventeen and before January first,S. 8474 539 1 two thousand twenty may elect to be subject to tax under this subchapter 2 or under subchapter two of this chapter for its first taxable year 3 beginning on or after January first, two thousand seventeen and before 4 January first, two thousand twenty in which either (i) sixty-five 5 percent or more of its voting stock is owned or controlled, directly or 6 indirectly by a financial holding company, provided the corporation 7 whose voting stock is so owned or controlled is principally engaged in 8 activities that are described in paragraphs four or five of subdivision 9 (k) of section four of the federal bank holding company act of nineteen 10 hundred fifty-six, as amended, and the regulations promulgated pursuant 11 to the authority of such section or (ii) it is a financial subsidiary. 12 An election under this paragraph may not be made by a corporation 13 described in paragraphs one through eight of subdivision (a) of this 14 section or in subdivision (e) of this section. In addition, an election 15 under this paragraph may not be made by a corporation that is a party to 16 a reorganization, as defined in subsection (a) of section three hundred 17 sixty-eight of the internal revenue code of nineteen hundred eighty-six, 18 as amended, of a corporation described in paragraph one of this subdivi- 19 sion if both corporations were sixty-five percent or more owned or 20 controlled, directly or indirectly, by the same interests at the time of 21 the reorganization. 22 An election under this paragraph shall be made by the taxpayer on or 23 before the due date for filing its return, determined with regard to 24 extensions of time for filing, for the applicable taxable year. The 25 election to be taxed under subchapter two of this chapter shall be made 26 by the taxpayer by filing the return required pursuant to subdivision 27 one of section 11-605 of this chapter and the election to be taxed under 28 this subchapter shall be made by the taxpayer by filing the return 29 required pursuant to subdivision (a) of section 11-646 of this part. Any 30 election made pursuant to this paragraph shall be irrevocable and shall 31 apply to each subsequent taxable year beginning on or after January 32 first, two thousand seventeen and before January first, two thousand 33 twenty, provided that the stock ownership and activities requirements 34 described in subparagraph (i) of this paragraph are met or such corpo- 35 ration described in subparagraph (ii) of this paragraph continues as a 36 financial subsidiary. 37 (3) For purposes of this subdivision, a financial subsidiary means a 38 corporation (i) sixty-five percent or more of whose voting stock is 39 owned or controlled, directly or indirectly by a banking corporation 40 described in paragraph one, two or three of subdivision (a) of this 41 section and (ii) is described in subdivision (g) of section five thou- 42 sand one hundred thirty-six-A of the revised statutes of the United 43 States or section forty-six of the federal deposit insurance act. For 44 purposes of this subchapter, the term "banking corporation" shall 45 include a corporation electing to be taxed under this subchapter pursu- 46 ant to paragraph two of this subdivision for so long as such election 47 shall be in effect. 48 § 11-641 Computations of entire net income. (a) Entire net income 49 means total net income from all sources which shall be the same as the 50 entire taxable income, but not alternative minimum taxable income, 51 (1) which the taxpayer is required to report to the United States 52 treasury department, or 53 (2) which the taxpayer, in the case of a corporation which is exempt 54 from federal income tax, other than the tax on unrelated business taxa- 55 ble income imposed under section five hundred eleven of the internal 56 revenue code, but which is subject to tax under this part, would haveS. 8474 540 1 been required to report to the United States treasury department but for 2 such exemption, or 3 (3) which, in the case of a corporation organized under the laws of a 4 country other than the United States, is effectively connected with the 5 conduct of a trade or business within the United States as determined 6 under section eight hundred eighty-two of the internal revenue code, or 7 (4) which the taxpayer would have been required to report to the 8 United States treasury department if the taxpayer had not elected to be 9 taxed under subchapter s of chapter one of the internal revenue code, or 10 (5) which the taxpayer would have been required to report to the 11 United States treasury department if no election had been made to treat 12 the taxpayer as a qualified subchapter s subsidiary under paragraph 13 three of subsection (b) of section thirteen hundred sixty-one of the 14 internal revenue code, subject to the modifications and adjustments 15 provided in this section. 16 (b) Entire net income shall be computed without the deduction or 17 exclusion of: 18 (1) (A) in the case of a corporation organized under the laws of a 19 country other than the United States, (i) any part of any income from 20 dividends or interest on any kind of stock, securities or indebtedness, 21 but only if such income is treated as effectively connected with the 22 conduct of a trade or business in the United States pursuant to section 23 eight hundred sixty-four of the internal revenue code, (ii) any income 24 exempt from federal taxable income under any treaty obligation of the 25 United States, but only if such income would be treated as effectively 26 connected in the absence of such exemption, provided that such treaty 27 obligation does not preclude the taxation of such income by a state, or 28 (iii) any income which would be treated as effectively connected if such 29 income were not excluded from gross income pursuant to subsection (a) of 30 section one hundred three of the internal revenue code; (B) in the case 31 of any other corporation, any part of any income from dividends or 32 interest on any kind of stock, securities or indebtedness; (C) except 33 that for purposes of subparagraphs (A) and (B) of this paragraph there 34 shall be excluded any amounts treated as dividends pursuant to section 35 seventy-eight of the internal revenue code and any amounts described in 36 paragraphs eleven and twelve of subdivision (e) of this section; 37 (2) taxes on or measured by income or profits paid or accrued within 38 the taxable year to the United States, or any of its possessions or to 39 any foreign country, taxes on or measured by income or profits paid or 40 accrued to the state or any subdivision thereof, including taxes imposed 41 under article nine, nine-A, thirteen-A, twenty-four-A, twenty-four-B of 42 the tax law, or under article thirty-two of the tax law as such article 43 was in effect on December thirty-first, two thousand fourteen and any 44 tax imposed under this part or subchapter two or three-A of this chap- 45 ter; 46 (4) for taxable years beginning after December thirty-first, nineteen 47 hundred eighty-one, except with respect to property which is a qualified 48 mass commuting vehicle described in subparagraph (D) of paragraph eight 49 of subsection (f) of section one hundred sixty-eight of the internal 50 revenue code, relating to qualified mass commuting vehicles, any amount 51 which the taxpayer claimed as a deduction in computing its federal taxa- 52 ble income solely as a result of an election made pursuant to the 53 provisions of such paragraph eight as it was in effect for agreements 54 entered into prior to January first, nineteen hundred eighty-four; 55 (5) for taxable years beginning after December thirty-first, nineteen 56 hundred eighty-one, except with respect to property which is a qualifiedS. 8474 541 1 mass commuting vehicle described in subparagraph (D) of paragraph eight 2 of subsection (f) of section one hundred sixty-eight of the internal 3 revenue code, relating to qualified mass commuting vehicles, any amount 4 which the taxpayer would have been required to include in the computa- 5 tion of its federal taxable income had it not made the election permit- 6 ted pursuant to such paragraph eight as it was in effect for agreements 7 entered into prior to January first, nineteen hundred eighty-four; 8 (6) in the case of property placed in service in taxable years begin- 9 ning before nineteen hundred ninety-four, for taxable years beginning 10 after December thirty-first, nineteen hundred eighty-one, except with 11 respect to property subject to the provisions of section two hundred 12 eighty-F of the internal revenue code and property subject to the 13 provisions of section one hundred sixty-eight of the internal revenue 14 code which is placed in service in this state in taxable years beginning 15 after December thirty-first, nineteen hundred eighty-four, the amount 16 allowable as a deduction determined under section one hundred sixty- 17 eight of the internal revenue code; 18 (7) upon the disposition of property to which paragraph seven of 19 subdivision (e) of this section applies, the amount, if any, by which 20 the aggregate of the amounts described in such paragraph seven attribut- 21 able to such property exceeds the aggregate of the amounts described in 22 paragraph six of this subdivision attributable to such property; 23 (11) for taxable years beginning before January first, two thousand 24 ten, in the case of a taxpayer subject to the provisions of subdivision 25 (c) of section five hundred eighty-five of the internal revenue code, 26 the amount allowed as a deduction pursuant to section one hundred 27 sixty-six of such code; and 28 (12) for taxable years beginning before January first, two thousand 29 ten, for taxpayers subject to the provisions of subdivision (i) of this 30 section, twenty percent of the excess of (A) the amount determined 31 pursuant to such subdivision (i) over (B) the amount which would have 32 been allowable had such institution maintained its bad debt reserve for 33 all taxable years on the basis of actual experience. 34 (13) for taxable years ending after September tenth, two thousand one, 35 in the case of qualified property described in paragraph two of 36 subsection k of section one hundred sixty-eight of the internal revenue 37 code, other than qualified resurgence zone property defined in subdivi- 38 sion (p) of this section, and other than qualified New York Liberty Zone 39 property described in paragraph two of subsection b of section fourteen 40 hundred-L of the internal revenue code, without regard to clause (i) of 41 subparagraph (C) of such paragraph, the amount allowable as a deduction 42 under section one hundred sixty-seven of the internal revenue code. 43 (14) for taxable years beginning on or after January first, two thou- 44 sand four, in the case of a taxpayer that is not an eligible farmer as 45 defined in subsection (n) of section six hundred six of the tax law, the 46 amount allowable as a deduction under sections one hundred seventy-nine, 47 one hundred sixty-seven and one hundred sixty-eight of the internal 48 revenue code with respect to a sport utility vehicle that is not a 49 passenger automobile as defined in paragraph five of subsection (d) of 50 section two hundred eighty-F of the internal revenue code. 51 (15) The amount of any deduction allowed pursuant to section one 52 hundred ninety-nine of the internal revenue code. 53 (16) The amount of any federal deduction for taxes imposed under arti- 54 cle twenty-three of the tax law. 55 (17) For taxable years beginning in two thousand nineteen and two 56 thousand twenty, the amount of the increase in the federal interestS. 8474 542 1 deduction allowed pursuant to paragraph ten of subdivision (j) of 2 section one hundred sixty-three of the internal revenue code. 3 (c)(1) Except as otherwise provided in paragraphs two and three of 4 this subdivision, in the case of the sale or exchange of property by a 5 taxpayer which has been subject to part one or two of this subchapter 6 three where the property has a higher adjusted basis for city tax 7 purposes than for federal tax purposes, there shall be allowed as a 8 deduction from entire net income, the portion of any gain or loss on 9 such sale which equals the difference in such basis. 10 (2) In case of property of a taxpayer, other than a savings bank, 11 acquired prior to January first, nineteen hundred sixty-six, and 12 disposed of thereafter, the computation of entire net income shall be 13 modified as follows: 14 (i) no gain shall be deemed to have been derived if either the cost or 15 the fair market price or value on January first, nineteen hundred 16 sixty-six, exceeds the value realized; 17 (ii) no loss shall be deemed to have been sustained if either the cost 18 or the fair market price or value on January first, nineteen hundred 19 sixty-six, is less than the value realized; 20 (iii) where both the cost and the fair market price or value on Janu- 21 ary first, nineteen hundred sixty-six, are less than the value realized, 22 the basis for computing gain shall be the cost or the fair market price 23 or value on such date, whichever is higher; 24 (iv) where both the cost and the fair market price or value on January 25 first, nineteen hundred sixty-six, are in excess of the value realized, 26 the basis for computing loss shall be the cost or the fair market price 27 or value on such date, whichever is lower. 28 (3) In case of property of a savings bank acquired prior to January 29 first, nineteen hundred sixty-six, and disposed of thereafter, in 30 computing entire net income the basis of such property shall be the fair 31 market price or value on January first, nineteen hundred sixty-six. 32 (d) Entire net income shall not include any refund or credit of a tax 33 for which no exclusion or deduction was allowed in determining the 34 taxpayer's entire net income under this subchapter or subchapter two of 35 this chapter, or imposed by article twenty-three of the tax law for any 36 prior year. 37 (e) There shall be allowed as a deduction in determining entire net 38 income, to the extent not deductible in determining federal taxable 39 income: 40 (1) interest on indebtedness incurred or continued to purchase or 41 carry obligations or securities the income from which is subject to tax 42 under this part but exempt from federal income tax, 43 (2) ordinary and necessary expenses paid or incurred during the taxa- 44 ble year attributable to income which is subject to tax under this part 45 but exempt from federal income tax, 46 (3) the amortizable bond premium for the taxable year on any bond the 47 interest on which is subject to tax under this part but exempt from 48 federal income tax, 49 (4) that portion of wages or salaries paid or incurred for the taxable 50 year for which a deduction is not allowed pursuant to the provisions of 51 section two hundred eighty-C of the internal revenue code, 52 (5) for taxable years beginning after December thirty-first, nineteen 53 hundred eighty-one, except with respect to property which is a qualified 54 mass commuting vehicle described in subparagraph (D) of paragraph eight 55 of subsection (f) of section one hundred sixty-eight of the internal 56 revenue code, relating to qualified mass commuting vehicles, any amountS. 8474 543 1 which is included in the taxpayer's federal taxable income solely as a 2 result of an election made pursuant to the provisions of such paragraph 3 eight as it was in effect for agreements entered into prior to January 4 first, nineteen hundred eighty-four, 5 (6) for taxable years beginning after December thirty-first, nineteen 6 hundred eighty-one, except with respect to property which is a qualified 7 mass commuting vehicle described in subparagraph (D) of paragraph eight 8 of subsection (f) of section one hundred sixty-eight of the internal 9 revenue code, relating to qualified mass commuting vehicles, any amount 10 which the taxpayer could have excluded from federal taxable income had 11 it not made the election provided for in such paragraph eight as it was 12 in effect for agreements entered into prior to January first, nineteen 13 hundred eighty-four, 14 (7) in the case of property placed in service in taxable years begin- 15 ning before nineteen hundred ninety-four, for taxable years beginning 16 after December thirty-first, nineteen hundred eighty-one, except with 17 respect to property subject to the provisions of section two hundred 18 eighty-F of the internal revenue code and property subject to the 19 provisions of section one hundred sixty-eight of the internal revenue 20 code which is placed in service in this state in taxable years beginning 21 after December thirty-first, nineteen hundred eighty-four, and provided 22 a deduction has not been excluded from entire net income pursuant to 23 paragraph four of subdivision (b) of this section, an amount with 24 respect to property which is subject to the provisions of section one 25 hundred sixty-eight of the internal revenue code equal to the amount 26 allowable as the depreciation deduction under section one hundred 27 sixty-seven of the internal revenue code as such section would have 28 applied to property placed in service on December thirty-first, nineteen 29 hundred eighty, 30 (8) upon the disposition of property to which paragraph seven of this 31 subdivision applies, the amount, if any, by which the aggregate of the 32 amounts described in paragraph six of subdivision (b) of this section 33 attributable to such property exceeds the aggregate of the amounts 34 described in paragraph seven of this subdivision attributable to such 35 property, 36 (9) any amount of money or other property received from the federal 37 deposit insurance corporation pursuant to subsection (c) of section 38 thirteen of the federal deposit insurance act, as amended, regardless of 39 whether any note or other instrument is issued in exchange therefor, 40 (10) any amount of money or other property received from the federal 41 savings and loan insurance corporation pursuant to paragraph one, two, 42 three or four of subsection (f) of section four hundred six of the 43 federal national housing act, as amended, regardless of whether any note 44 or other instrument is issued in exchange therefor, 45 (11) (i) seventeen percent of interest income from subsidiary capital, 46 and 47 (ii) sixty percent of dividend income from subsidiary capital, and 48 (iii) sixty percent of the amount by which gains from subsidiary capi- 49 tal exceed losses from subsidiary capital, to the extent such gains and 50 losses were taken into account in determining the entire taxable income 51 referred to in subdivision (a) of this section, 52 (12) twenty-two and one-half percent of interest income on obligations 53 of New York state, or of any political subdivision thereof, or on obli- 54 gations of the United States, other than obligations held for resale in 55 connection with regular trading activities,S. 8474 544 1 (13) for the taxable years beginning before January first, two thou- 2 sand ten, in the case of a taxpayer which recaptures its balance of the 3 reserve for losses on loans for federal income tax purposes pursuant to 4 subdivision (c) of section five hundred eight-five of the internal 5 revenue code, any amount which is included in federal taxable income 6 pursuant to subdivision (c) of section five hundred eighty-five of such 7 code, 8 (14) for taxable years beginning before January first, two thousand 9 ten, in the case of a taxpayer subject to the provisions of subdivision 10 (c) of section five hundred eighty-five of the internal revenue code, 11 any amount which is included in federal taxable income as a result of a 12 recovery of a loan, 13 (15) for taxable years beginning before January first, two thousand 14 ten, in the case of a taxpayer which is currently or has previously been 15 subject to subdivision (h) of this section, any amount which is included 16 in federal taxable income pursuant to paragraph two of subdivision (e) 17 of section five hundred ninety-three of the internal revenue code, and 18 any other amount so included as a result of a recovery of or termination 19 from the use of a bad debt reserve as defined in section five hundred 20 ninety-three of such code as in existence on December thirty-first, 21 nineteen hundred ninety-five as a result of federal legislation enacted 22 after December thirty-first, nineteen hundred ninety-five, 23 (16) one hundred percent of dividend income from subsidiary capital 24 received during the taxable year if that dividend income is directly 25 attributable to a dividend from a captive REIT or captive RIC for which 26 the captive REIT or captive RIC claimed a federal dividends paid 27 deduction and that captive REIT or captive RIC is included in a combined 28 report or return under subchapter two or part four of subchapter three 29 of this chapter. 30 (f) Provided the taxpayer has not made an election pursuant to para- 31 graph two of subdivision (b) of section 11-642 of this part, there shall 32 be allowed as a deduction in determining entire net income, to the 33 extent not deductible in determining federal taxable income, the 34 adjusted eligible net income of an international banking facility deter- 35 mined as follows: 36 (1) The eligible net income of an international banking facility shall 37 be the amount remaining after subtracting from the eligible gross income 38 the applicable expenses. 39 (2) Eligible gross income shall be the gross income derived by an 40 international banking facility from: 41 (A) making, arranging for, placing or servicing loans to foreign 42 persons, provided, however, that in the case of a foreign person which 43 is an individual, or which is a foreign branch of a domestic corpo- 44 ration, other than a bank, or which is a foreign corporation or foreign 45 partnership which is eighty per centum or more owned or controlled, 46 either directly or indirectly, by one or more domestic corporations, 47 other than banks, domestic partnerships or resident individuals, 48 substantially all the proceeds of the loan are intended for use outside 49 of the United States; 50 (B) making or placing deposits with foreign persons which are banks or 51 foreign branches of banks, including foreign subsidiaries or foreign 52 branches of the taxpayer, or with other international banking facili- 53 ties; or 54 (C) entering into foreign exchange trading or hedging transactions 55 related to any of the transactions described in this paragraph.S. 8474 545 1 (3) Applicable expenses shall be any expenses or other deductions 2 attributable, directly or indirectly, to the eligible gross income 3 described in paragraph two of this subdivision. 4 (4) Adjusted eligible net income shall be determined by subtracting 5 from eligible net income the ineligible funding amount, and by subtract- 6 ing from the amount then remaining the floor amount. 7 (5) The ineligible funding amount shall be the amount, if any, deter- 8 mined by multiplying eligible net income by a fraction, the numerator of 9 which is the average aggregate amount for the taxable year of all 10 liabilities, including deposits, and other sources of funds of the 11 international banking facility which were not owed to or received from 12 foreign persons, and the denominator of which is the average aggregate 13 amount for the taxable year of all liabilities, including deposits and 14 other sources of funds of the international banking facility. 15 (6) The floor amount shall be the amount, if any, determined by multi- 16 plying the amount remaining after subtracting the ineligible funding 17 amount from the eligible net income by a fraction, not greater than one, 18 which is determined as follows: 19 (A) The numerator shall be 20 (i) the percentage, as set forth in subparagraph (C) of this para- 21 graph, of the average aggregate amount of the taxpayer's loans to 22 foreign persons and deposits with foreign persons which are banks or 23 foreign branches of banks, including foreign subsidiaries or foreign 24 branches of the taxpayer, which loans and deposits were recorded in the 25 financial accounts of the taxpayer for its branches, agencies and 26 offices within the state for taxable years nineteen hundred seventy- 27 five, nineteen hundred seventy-six and nineteen hundred seventy-seven, 28 minus 29 (ii) the average aggregate amount of such loans and such deposits for 30 the taxable year of the taxpayer, other than such loans and deposits of 31 an international banking facility, provided, however, that in no case 32 shall the amount determined in this clause exceed the amount determined 33 in clause (i) of this subparagraph; and 34 (B) The denominator shall be the average aggregate amount of the loans 35 to foreign persons and deposits with foreign persons which are banks or 36 foreign branches of banks, including foreign subsidiaries or foreign 37 branches of the taxpayer, which loans and deposits were recorded in the 38 financial accounts of the taxpayer's international banking facility for 39 the taxable year. 40 (C) The percentage shall be one hundred percent for the first taxable 41 year in which the taxpayer establishes an international banking facility 42 and for the next succeeding four taxable years. The percentage shall be 43 eighty percent for the fifth, sixty percent for the sixth, forty percent 44 for the seventh, and twenty percent for the eighth taxable year next 45 succeeding the year such taxpayer establishes such international banking 46 facility, and zero in the ninth succeeding year and thereafter. 47 (7) In the event adjusted eligible net income is a loss, such loss 48 shall be added to entire net income. 49 (8) For purposes of this subdivision, the term "foreign person" means: 50 (A) an individual who is not a resident of the United States, 51 (B) a foreign corporation, a foreign partnership or a foreign trust, 52 as defined in section seventy-seven hundred one of the internal revenue 53 code, other than a domestic branch thereof, 54 (C) a foreign branch of a domestic corporation, including the taxpay- 55 er,S. 8474 546 1 (D) a foreign government or an international organization or an agency 2 of either, or 3 (E) an international banking facility. 4 For purposes of this paragraph, the terms "foreign" and "domestic" 5 shall have the same meaning as set forth in section seventy-seven 6 hundred one of the internal revenue code. 7 (g) Entire net income shall be computed without regard to the 8 reduction in the basis of property that is required by section three 9 hundred sixty-two of the internal revenue code, because of any amount of 10 money or other property received from the federal deposit insurance 11 corporation pursuant to subsection (c) of section thirteen of the feder- 12 al deposit insurance act, as amended, or from the federal savings and 13 loan insurance corporation pursuant to paragraph one, two, three or four 14 of subsection (f) of section four hundred six of the federal national 15 housing act, as amended. 16 (h)(1) For purposes of this subdivision, a "thrift institution" is a 17 banking corporation which satisfies the requirements of subparagraphs 18 (A) and (B) of this paragraph. 19 (A) Such banking corporation must be (i) a banking corporation as 20 defined in paragraph one of subdivision (a) of section 11-640 of this 21 part created or authorized to do business under article six or ten of 22 the banking law, (ii) a banking corporation as defined in paragraph two 23 or seven of subdivision (a) of section 11-640 of this part which is 24 doing a business substantially similar to the business which a corpo- 25 ration or association may be created to do under article six or ten of 26 the banking law or any business which a corporation or association is 27 authorized by such article to do, or (iii) a banking corporation as 28 defined in paragraph four or five of subdivision (a) of section 11-640 29 of this part. 30 (B) At least sixty percent of the amount of the total assets, at the 31 close of the taxable year, of such banking corporation must consist of 32 (i) cash; (ii) obligations of the United States or of a state or poli- 33 tical subdivision thereof, and stock or obligations of a corporation 34 which is an instrumentality of the United States or of a state or poli- 35 tical subdivision thereof, but not including obligations the interest on 36 which is excludable from gross income under section one hundred three of 37 the internal revenue code; (iii) loans secured by a deposit or share of 38 a member; (iv) loans secured by an interest in real property which is, 39 or from the proceeds of the loan, will become, residential real property 40 or real property used primarily for church purposes, loans made for the 41 improvement of residential real property or real property used primarily 42 for church purposes, provided that for purposes of this clause, residen- 43 tial real property shall include single or multifamily dwellings, facil- 44 ities in residential developments dedicated to public use or property 45 used on a nonprofit basis for residents, and mobile homes not used on a 46 transient basis; (v) property acquired through the liquidation of 47 defaulted loans described in clause (iv) of this subparagraph; (vi) any 48 regular or residual interest in a REMIC, as such term is defined in 49 section eight hundred sixty-D of the internal revenue code and any regu- 50 lar interest in a FASIT, as such term is defined in section eight 51 hundred sixty-L of the internal revenue code, but only in the proportion 52 which the assets of such REMIC or FASIT consist of property described in 53 clauses (i) through (v) of this subparagraph, except that if ninety-five 54 percent or more of the assets of such REMIC or FASIT are assets 55 described in clauses (i) through (v) of this subparagraph, the entire 56 interest in the REMIC or FASIT shall qualify; (vii) any mortgage-backedS. 8474 547 1 security which represents ownership of a fractional undivided interest 2 in a trust, the assets of which consist primarily of mortgage loans, 3 provided that the real property which serves as security for the loans 4 is, or from the proceeds of the loan, will become, the type of property 5 described in clause (iv) of this subparagraph and any collateralized 6 mortgage obligation, the security for which consists primarily of mort- 7 gage loans, provided that the real property which serves as security for 8 the loans is, or from the proceeds of the loan, will become, the type of 9 property described in clause (iv) of this subparagraph; (viii) certif- 10 icates of deposit in, or obligations of, a corporation organized under a 11 state law which specifically authorizes such corporation to insure the 12 deposits or share accounts of member associations; (ix) loans secured by 13 an interest in real property located within any urban renewal area to be 14 developed for predominantly residential use under an urban renewal plan 15 approved by the Secretary of Housing and Urban Development under part A 16 or part B of title I of the Housing Act of nineteen hundred forty-nine, 17 as amended, or located within any area covered by a program eligible for 18 assistance under section one hundred three of the Demonstration Cities 19 and Metropolitan Development Act of nineteen hundred sixty-six, as 20 amended, and loans made for the improvement of any such real property; 21 (x) loans secured by an interest in educational, health, or welfare 22 institutions or facilities, including structures designed or used prima- 23 rily for residential purposes for students, residents, and persons under 24 care, employees, or members of the staff of such institutions or facili- 25 ties; (xi) loans made for the payment of expenses of college or univer- 26 sity education or vocational training; (xii) property used by the 27 taxpayer in the conduct of business which consists principally of 28 acquiring the savings of the public and investing in loans; (xiii) loans 29 for which the taxpayer is the creditor and which are wholly secured by 30 loans described in clause (iv) of this subparagraph, but excluding loans 31 for which the taxpayer is the creditor to any banking corporation 32 described in paragraphs one through seven of subdivision (a) of section 33 11-640 of this part or a real estate investment trust, as such term is 34 defined in section eight hundred fifty-six of the internal revenue code, 35 and excluding loans which are treated by the taxpayer as subsidiary 36 capital for purposes of the deductions provided by paragraph eleven of 37 subdivision (e) of this section; (xiv) small business loans or small 38 farm loans located in low-income or moderate-income census tracts or 39 block numbering areas delineated by the United States bureau of the 40 census in the most recent decennial census; and (xv) community develop- 41 ment loans or community development investments. For purposes of clause 42 (xv) of this subparagraph, a "community development loan" is a loan that 43 (I) has as its primary purpose community development, (II) has not been 44 reported or collected by the taxpayer for consideration in the taxpay- 45 er's community reinvestment act evaluation pursuant to the federal 46 community reinvestment act of nineteen hundred seventy-seven, as 47 amended, or section twenty-eight-b of the banking law as a mortgage loan 48 described in clause (iv) of this subparagraph or a small business loan, 49 small farm loan, or consumer loan, (III) benefits the taxpayer's assess- 50 ment area or areas for purposes of the federal community reinvestment 51 act of nineteen hundred seventy-seven, as amended or section twenty- 52 eight-b of the banking law or a broader statewide or regional area that 53 includes the taxpayer's assessment area, and (IV) is identified in the 54 taxpayer's books and records as a community development loan for 55 purposes of its community reinvestment act evaluation pursuant to the 56 federal community reinvestment act of nineteen hundred seventy-seven, asS. 8474 548 1 amended or section twenty-eight-b of the banking law. For purposes of 2 clause (xv) of this subparagraph, a "community development investment" 3 is an investment in a security which has as its primary purpose communi- 4 ty development and which is identified in the taxpayer's books and 5 records as a qualified investment for purposes of its community rein- 6 vestment act evaluation pursuant to the federal community reinvestment 7 act of nineteen hundred seventy-seven, as amended or section twenty- 8 eight-b of the banking law. For purposes of this subparagraph, "communi- 9 ty development" means (I) affordable housing, including multifamily 10 rental housing for low-income or moderate-income individuals; (II) 11 community services targeted to low-income or moderate-income individ- 12 uals; (III) activities that promote economic development by financing 13 businesses or farms that meet the size eligibility standards of the 14 small business administration's development company or small business 15 investment company programs or have gross annual revenues of one million 16 dollars or less; (IV) activities that revitalize or stabilize low-income 17 or moderate-income census tracts or block numbering areas delineated by 18 the United States bureau of the census in the most recent decennial 19 census; or (V) activities that seek to prevent defaults and/or foreclo- 20 sures in loans included in items (I) and (III) of this subclause. 21 (C) At the election of the taxpayer, the percentage specified in 22 subparagraph (B) of this paragraph shall be applied on the basis of the 23 average assets outstanding during the taxable year, in lieu of the close 24 of the taxable year. For purposes of clause (iv) of subparagraph (B) of 25 this paragraph, if a multifamily structure securing a loan is used in 26 part for nonresidential use purposes, the entire loan is deemed a resi- 27 dential real property loan if the planned residential use exceeds eighty 28 percent of the property's planned use, determined as of the time the 29 loan is made. Also, for purposes of clause (iv) of subparagraph (B) of 30 this paragraph, loans made to finance the acquisition or development of 31 land shall be deemed to be loans secured by an interest in residential 32 real property if there is a reasonable assurance that the property will 33 become residential real property within a period of three years from the 34 date of acquisition of such land; but this shall not apply for any taxa- 35 ble year unless, within such three year period, such land becomes resi- 36 dential real property. For purposes of determining whether any interest 37 in a REMIC qualifies under clause (vi) of subparagraph (B) of this para- 38 graph, any regular interest in another REMIC held by such REMIC shall be 39 treated as a loan described in clauses (i), (ii), (iii), (iv) or (v) of 40 subparagraph (B) of this paragraph under principles similar to the prin- 41 ciple of such clause (vi); except that if such REMICS are part of a 42 tiered structure, they shall be treated as one REMIC for purposes of 43 such clause (vi). 44 (2) For taxable years beginning before January first, two thousand 45 ten, a thrift institution must exclude from the computation of its 46 entire net income any amount allowed as a deduction for federal income 47 tax purposes pursuant to section one hundred sixty-six, five hundred 48 eight-five or five hundred ninety-three of the internal revenue code. 49 (3) For taxable years beginning before January first, two thousand 50 ten, a thrift institution shall be allowed as a deduction in computing 51 entire net income the amount of a reasonable addition to its reserve for 52 bad debts. This amount shall be equal to the sum of: 53 (A) the amount determined to be a reasonable addition to the reserve 54 for losses on nonqualifying loans, computed in the same manner as is 55 provided with respect to additions to the reserves for losses on loans 56 of banks under paragraph one of subdivision (i) of this section, plusS. 8474 549 1 (B) the amount determined by the taxpayer to be a reasonable addition 2 to the reserve for losses on qualifying real property loans, but such 3 amount shall not exceed the amount determined under paragraph four or 4 five of this subdivision, whichever is the larger, but the amount deter- 5 mined under this subparagraph shall in no case be greater than the larg- 6 er of: 7 (i) the amount determined under paragraph five of this subdivision, or 8 (ii) the amount which, when added to the amount determined under 9 subparagraph (A) of this paragraph, equals the amount by which twelve 10 percent of the total deposits or withdrawable accounts of depositors of 11 the taxpayer at the close of such year exceeds the sum of its surplus, 12 undivided profits and reserves at the beginning of such year, taking 13 into account any portion thereof attributable to the period before the 14 first taxable year beginning after December thirty-first, nineteen 15 hundred fifty-one. 16 The taxpayer must include in its tax return for each year a computa- 17 tion of the amount of the addition to the bad debt reserve determined 18 under this subdivision. The use of a particular method in the return for 19 a taxable year is not a binding election by the taxpayer. 20 (4)(A) Subject to subparagraphs (B) and (C) of this paragraph, the 21 amount determined under this paragraph for the taxable year shall be an 22 amount equal to thirty-two percent of the entire net income for such 23 year. 24 (B) The amount determined under subparagraph (A) of this paragraph 25 shall be reduced, but not below zero, by the amount determined under 26 subparagraph (A) of paragraph three of this subdivision. 27 (C) The amount determined under this paragraph shall not exceed the 28 amount necessary to increase the balance at the close of the taxable 29 year of the reserve for losses on qualifying real property loans to six 30 percent of such loans outstanding at such time. 31 (D) For purposes of this paragraph, entire net income shall be 32 computed 33 (i) by excluding from income any amount included therein by reason of 34 subparagraph (B) of paragraph eight of this subdivision, 35 (ii) without regard to any deduction allowable for any addition to the 36 reserve for bad debts, and 37 (iii) by excluding from income an amount equal to the net gain for the 38 taxable year arising from the sale or exchange of stock of a corporation 39 or of obligations the interest on which is excludable from gross income 40 under section one hundred three of the internal revenue code. 41 (iv) Whenever a thrift institution is properly includable in a 42 combined return, entire net income, for purposes of this paragraph, 43 shall not exceed the lesser of the thrift institution's separately 44 computed entire net income as adjusted pursuant to clauses (i) through 45 (iii) of this subparagraph or the combined group's entire net income as 46 adjusted pursuant to clauses (i) through (iii) of this subparagraph. 47 (5) The amount determined under this paragraph for the taxable year 48 shall be computed in the same manner as is provided under paragraph one 49 of subdivision (i) of this section with respect to additions to reserves 50 for losses on loans of banks. Provided, however, that for any taxable 51 year beginning after nineteen hundred ninety-five, for purposes of such 52 computation, the base year shall be the later of (A) the last taxable 53 year beginning in nineteen hundred ninety-five or (B) the last taxable 54 year before the current year in which the amount determined under the 55 provisions of subparagraph (B) of paragraph three of this subdivision 56 exceeded the amount allowable under this paragraph.S. 8474 550 1 (6) (A) (i) Each taxpayer described in paragraph one of this subdivi- 2 sion shall establish and maintain a New York reserve for losses on qual- 3 ifying real property loans, a New York reserve for losses on nonqualify- 4 ing loans and a supplemental reserve for losses on loans. Such reserves 5 shall be maintained for all subsequent taxable years that this subdivi- 6 sion applies to the taxpayer. 7 (ii) For purposes of this subdivision, such reserves shall be treated 8 as reserves for bad debts, but no deduction shall be allowed for any 9 addition to the supplemental reserve for losses on loans. 10 (iii) Except as provided in this clause, the balances of each such 11 reserve at the beginning of the first day of the first taxable year 12 beginning after December thirty-first, nineteen hundred ninety-five 13 shall be the same as the balances maintained for federal income tax 14 purposes in accordance with paragraph one of subdivision (c) of section 15 five hundred ninety-three of the internal revenue code as in existence 16 on December thirty-first, nineteen hundred ninety-five for the last day 17 of the last tax year beginning before January first, nineteen hundred 18 ninety-six. A taxpayer which maintained a New York reserve for loan 19 losses on qualifying real property loans in the last tax year beginning 20 before January first, nineteen hundred ninety-six shall have a continua- 21 tion of such New York reserve balance in lieu of the amount determined 22 under this clause. 23 (iv) Notwithstanding clause (ii) of this subparagraph, any amount 24 allocated to the reserve for losses on qualifying real property loans 25 pursuant to paragraph five of subdivision (c) of section five hundred 26 ninety-three of the internal revenue code as in effect immediately prior 27 to the enactment of the Tax Reform Act of nineteen hundred seventy six 28 shall not be treated as a reserve for bad debts for any purpose other 29 than determining the amount referred to in subparagraph (B) of paragraph 30 three of this subdivision, and for such purpose such amount shall be 31 treated as remaining in such reserve. 32 (B) Any debt becoming worthless or partially worthless in respect of a 33 qualifying real property loan shall be charged to the reserve for losses 34 on such loans and any debt becoming worthless or partially worthless in 35 respect of a nonqualifying loan shall be charged to the reserve for 36 losses on nonqualifying loans, except that any such debt may, at the 37 election of the taxpayer, be charged in whole or in part to the supple- 38 mental reserve for losses on loans. 39 (C) The New York reserve for losses on qualifying real property loans 40 shall be increased by the amount determined under subparagraph (B) of 41 paragraph three of this subdivision and the New York reserve for losses 42 on nonqualifying loans shall be increased by the amount determined under 43 subparagraph (A) of paragraph three of this subdivision. 44 (7)(A) For purposes of this subdivision, the term "qualifying real 45 property loan" shall mean any loan secured by an interest in improved 46 real property or secured by an interest in real property which is to be 47 improved out of the proceeds of the loan. Such term shall include any 48 mortgage-backed security which represents ownership of a fractional 49 undivided interest in a trust, the assets of which consist primarily of 50 mortgage loans, provided that the real property which serves as security 51 for the loans is, or from the proceeds of the loan, will become, the 52 type of property described in clauses (i) through (v) of subparagraph 53 (B) of paragraph one of this subdivision. However, such term shall not 54 include: (i) any loan evidenced by a security, as defined in subpara- 55 graph (C) of paragraph two of subdivision (g) of section one hundred 56 sixty-five of the internal revenue code; (ii) any loan, whether or notS. 8474 551 1 evidenced by a security, as defined in such subparagraph (C) of para- 2 graph two of subdivision (g) of section one hundred sixty-five, the 3 primary obligor of which is (I) a government or political subdivision or 4 instrumentality thereof, (II) a banking corporation, or (III) any corpo- 5 ration sixty-five percent or more of whose voting stock is owned or 6 controlled, directly or indirectly, by the taxpayer or by a banking 7 corporation or bank holding company that owns or controls, directly or 8 indirectly, sixty-five percent or more of the voting stock of the 9 taxpayer; (iii) any loan, to the extent secured by a deposit in or share 10 of the taxpayer; or (iv) any loan which, within a sixty-day period 11 beginning in one taxable year of the creditor and ending in its next 12 taxable year, is made or acquired and then repaid or disposed of, unless 13 the transactions by which such loan was made or acquired and then repaid 14 or disposed of are established to be for bona fide business purposes. 15 (B) For purposes of this subdivision, the term "nonqualifying loan" 16 shall mean any loan which is not a qualifying real property loan. 17 (C) For purposes of this subdivision, the term "loan" shall mean debt, 18 as the term "debt" is used in section one hundred sixty-six of the 19 internal revenue code. 20 (D) A regular or residual interest in a REMIC, as such term is defined 21 in section eight hundred sixty-D of the internal revenue code, shall be 22 treated as a qualifying real property loan, except that, if less than 23 ninety-five percent of the assets of such REMIC are qualifying real 24 property loans, determined as if the taxpayer held the assets of the 25 REMIC, such interest shall be so treated only in the proportion which 26 the assets of such REMIC consist of such loans. For purposes of deter- 27 mining whether any interest in a REMIC qualifies under the provisions of 28 this paragraph, any interest in another REMIC held by such REMIC shall 29 be treated as a qualifying real property loan under principles similar 30 to the principles of this paragraph, except that if such REMICS are part 31 of a tiered structure, they shall be treated as one REMIC for purposes 32 of this paragraph. 33 (8)(A) Any distribution of property, as defined in subdivision (a) of 34 section three hundred seventeen of the internal revenue code, by a 35 thrift institution to a shareholder with respect to its stock, if such 36 distribution is not allowable as a deduction under section five hundred 37 ninety-one of such code, shall be treated as made 38 (i) first out of its New York earnings and profits accumulated in 39 taxable years beginning after December thirty-first, nineteen hundred 40 fifty-one, to the extent thereof, 41 (ii) then out of the New York reserve for losses on qualifying real 42 property loans, to the extent additions to such reserve exceed the addi- 43 tions which would have been allowed under paragraph five of this subdi- 44 vision, 45 (iii) then out of the supplemental reserve for losses on loans, to the 46 extent thereof, 47 (iv) then out of such other accounts as may be proper. 48 This subparagraph shall apply in the case of any distribution in redemp- 49 tion of stock or in partial or complete liquidation of a thrift institu- 50 tion, except that any such distribution shall be treated as made first 51 out of the amount referred to in clause (ii) of this subparagraph, 52 second out of the amount referred to in clause (iii) of this subpara- 53 graph, third out of the amount referred to in clause (i) of this subpar- 54 agraph and then out of such other accounts as may be proper. This 55 subparagraph shall not apply to any transaction to which section three 56 hundred eighty-one of such code, relating to carryovers and certainS. 8474 552 1 corporate acquisitions, applies, or to any distribution to the federal 2 savings and loan insurance corporation or the federal deposit insurance 3 corporation in redemption of an interest in an association or institu- 4 tion, if such interest was originally received by the federal savings 5 and loan insurance corporation or the federal deposit insurance corpo- 6 ration in exchange for financial assistance pursuant to subdivision (f) 7 of section four hundred six of the federal national housing act or 8 pursuant to subsection (c) of section thirteen of the federal deposit 9 insurance act. 10 (B) If any distribution is treated under subparagraph (A) of this 11 paragraph as having been made out of the reserves described in clauses 12 (ii) and (iii) of such subparagraph, the amount charged against such 13 reserve shall be the amount which, when reduced by the amount of tax 14 imposed under the internal revenue code and attributable to the inclu- 15 sion of such amount in gross income, is equal to the amount of such 16 distribution; and the amount so charged against such reserve shall be 17 included in the entire net income of the taxpayer. 18 (C) (i) For purposes of clause (ii) of subparagraph (A) of this para- 19 graph, additions to the New York reserve for losses on qualifying real 20 property loans for the taxable year in which the distribution occurs 21 shall be taken into account. 22 (ii) For purposes of computing under this subdivision the amount of a 23 reasonable addition to the New York reserve for losses on qualifying 24 real property loans for any taxable year, the amount charged during any 25 year to such reserve pursuant to the provisions of subparagraph (B) of 26 this paragraph shall not be taken into account. 27 (9) A taxpayer which maintains a New York reserve for losses on quali- 28 fying real property loans and which ceases to meet the definition of a 29 thrift institution as defined in paragraph one of this subdivision, must 30 include in its entire net income for the last taxable year such para- 31 graph applied the excess of its New York reserve for losses on qualify- 32 ing real property loans over the greater of (A) its reserve for losses 33 on qualifying real property loans as of the last day of the last taxable 34 year such reserve is maintained for federal income tax purposes or (B) 35 the balance of the New York reserve for losses on qualifying real prop- 36 erty loans which would be allowable to the taxpayer for the last taxable 37 year such taxpayer met such definition of a thrift institution if the 38 taxpayer had computed its reserve balance pursuant to the method 39 described in subparagraph (A) of paragraph one of subdivision (i) of 40 this section. 41 (i) (1) For taxable years beginning before January first, two thousand 42 ten, a taxpayer subject to the provisions of subdivision (c) of section 43 five hundred eighty-five of the internal revenue code and not subject to 44 subdivision (h) of this section may, in computing entire net income, 45 deduct an amount equal to or less than the amount determined pursuant to 46 subparagraph (A) of this paragraph or subparagraph (B) of this para- 47 graph, whichever is greater. Provided, however, in no event shall the 48 deduction be less than the amount determined pursuant to such subpara- 49 graph (A). 50 (A) The amount determined pursuant to this subparagraph shall be the 51 amount necessary to increase the balance of its New York reserve for 52 losses on loans, at the close of the taxable year, to the amount which 53 bears the same ratio to loans outstanding at the close of the taxable 54 year as (i) the total bad debts sustained during the taxable year and 55 the five preceding taxable years, or, with the approval of the commis- 56 sioner of finance, a shorter period, adjusted for recoveries of badS. 8474 553 1 debts during such period, bears to (ii) the sum of the loans outstanding 2 at the close of such six or fewer taxable years. 3 (B)(i) The amount determined pursuant to this subparagraph shall be 4 the amount necessary to increase the balance of its New York reserve for 5 losses on loans, at the close of the taxable year, to the lower of: 6 (I) the balance of the reserve at the close of the base year, or 7 (II) if the amount of loans outstanding at the close of the taxable 8 year is less than the amount of loans outstanding at the close of the 9 base year, the amount which bears the same ratio to loans outstanding at 10 the close of the taxable year as the balance of the reserve at the close 11 of the base year bears to the amount of loans outstanding at the close 12 of the base year. 13 (ii) For purposes of this paragraph, the base year shall be (I) for 14 taxable years beginning in nineteen hundred eighty-seven, the last taxa- 15 ble year before the most recent adoption of the experience method for 16 federal income tax purposes or for purposes of this part, whichever is 17 earlier, and (II) for taxable years beginning after nineteen hundred 18 eighty-seven, the last taxable year beginning before nineteen hundred 19 eighty-eight. 20 (2) (A) For taxable years beginning before January first, two thousand 21 ten, each taxpayer described in paragraph one of this subdivision shall 22 establish and maintain a New York reserve for losses on loans. Such 23 reserve shall be maintained for all subsequent taxable years. The 24 balance of the New York reserve for losses on loans at the beginning of 25 the first day of the first taxable year the taxpayer becomes subject to 26 this subdivision shall be the same as the balance at the beginning of 27 such day of the reserve for losses on loans maintained for federal 28 income tax purposes. The New York reserve for losses on loans shall be 29 reduced by an amount equal to the deduction allowed, but not more than 30 the amount allowable, for worthless debts for federal income tax 31 purposes pursuant to section one hundred sixty-six of the internal 32 revenue code plus the amount, if any, charged against its reserve for 33 losses on loans pursuant to paragraph four of subdivision (c) of section 34 five hundred eighty-five of such code. 35 (B) For purposes of subparagraph (A) of this paragraph, a taxpayer 36 which had previously been subject to the provisions of subdivision (h) 37 of this section shall establish a New York reserve for losses on loans 38 equal to the sum of (i) the greater of (I) the balance of its federal 39 reserve for losses on qualifying real property loans as of the first day 40 of the first taxable year the taxpayer becomes subject to the provisions 41 of this subdivision or (II) the greater of the amounts determined under 42 subparagraphs (A) and (B) of paragraph nine of subdivision (h) of this 43 section in the year such paragraph applied to the taxpayer, (ii) the 44 greater of (I) the balance in its federal reserve for losses on nonqual- 45 ifying loans as of the first day of the first taxable year the taxpayer 46 becomes subject to this subdivision or (II) the balance in its New York 47 reserve for losses on nonqualifying loans as of the last date the 48 taxpayer was subject to the provisions of subdivision (h) of this 49 section, and (iii) the balance in its supplemental reserve for losses on 50 loans as of the last date the taxpayer was subject to the provisions of 51 subdivision (h) of this section. 52 (3) The determination and treatment of the New York reserve balance, 53 including any additions thereto, subtractions therefrom, or recapture 54 thereof, for:S. 8474 554 1 (A) any banking corporation which was subject to tax for federal 2 income tax purposes but not subject to tax under this part for prior 3 taxable years, 4 (B) any taxpayer which ceases to be subject to tax under this part, or 5 (C) any other unusual circumstances, 6 shall be determined by the commissioner of finance. Provided, however, 7 any banking corporation which was subject to tax for federal income tax 8 purposes but not subject to tax under this part for prior taxable years 9 shall have as its opening New York reserve for losses on loans the 10 amount determined by applying the provisions of subparagraph (A) of 11 paragraph one of this subdivision to loans outstanding at the close of 12 its last taxable year for federal income tax purposes ending prior to 13 the first taxable year for which the taxpayer is subject to tax under 14 this part and provided, further, that the provisions of subparagraph (B) 15 of paragraph one of this subdivision shall not apply. 16 (j) (1) For any taxable year beginning in nineteen hundred seventy- 17 three or for any period for which a tax is imposed under subdivision (b) 18 of section 11-639 of this part, entire net income shall be computed 19 without regard to the amount allowable as a deduction for bad debts or 20 an addition to a reserve for bad debts in computing federal taxable 21 income for the taxable year, but, in lieu thereof, a deduction shall be 22 allowed to the extent and in the manner authorized by subdivision five 23 of section 11-621 or subdivision (e) of section 11-629 of this subchap- 24 ter as if such provisions were set forth in full in this part and by 25 treating such provisions as applicable under this part. 26 (2) In the case of property placed in service prior to January first, 27 nineteen hundred seventy-three, for which the taxpayer properly adopted 28 a different method of computing depreciation under section 11-621 or 29 section 11-629 of this subchapter than was adopted for federal income 30 tax purposes with respect to such property, entire net income under this 31 part shall be computed without regard to the amount allowable as a 32 deduction for depreciation of such property in computing federal taxable 33 income for the taxable year but, in lieu thereof, shall be computed as 34 if such deduction were determined by the method of depreciation adopted 35 with respect to such property under section 11-621 or 11-629 of this 36 subchapter. 37 (3) In computing entire net income, the amount allowable as a 38 deduction for charitable contributions for federal income tax purposes 39 shall be: (a) increased for the first taxable year or period beginning 40 in nineteen hundred seventy-three by the amount of any contributions 41 made during such taxable year or period which were not allowable as a 42 deduction for charitable contributions for federal income tax purposes 43 for such taxable year or period because of an election pursuant to para- 44 graph two of subsection (a) of section one hundred seventy of the inter- 45 nal revenue code and which were not deductible in computing the tax due 46 under part one or two of this subchapter, and (b) decreased by any 47 amount allowed as a deduction for federal income tax purposes for the 48 taxable year under section one hundred seventy of the internal revenue 49 code as a carryover of excess contributions which are not made in such 50 taxable year and which were deductible in computing the tax due under 51 part one or two of this subchapter. 52 (4) There shall be excluded from the computation of entire net income 53 any amount allowed as a deduction for federal income tax purposes for 54 the taxable year under section twelve hundred twelve of the internal 55 revenue code as a capital loss carry forward to the taxable year, whichS. 8474 555 1 was deductible as a loss in computing the tax due under part one or two 2 of this subchapter. 3 (5) There shall be excluded from the computation of entire net income 4 the amount of any income or gain from the sale of real or personal prop- 5 erty which is includible in determining federal taxable income for the 6 taxable year pursuant to the installment method under section four 7 hundred fifty-three of the internal revenue code, to the extent that 8 such income or gain was includible in the computation of the tax due 9 under part one or two of this subchapter. 10 (6) To the extent not otherwise provided in this part, there shall be 11 excluded from entire net income the amount necessary to prevent the 12 taxation under this part of any other amount of income or gain which was 13 properly included in income or gain and was taxable under part one or 14 two of this subchapter and there shall be disallowed as a deduction in 15 computing entire net income any amount which was allowed as a deduction 16 in computing the tax due under such parts. 17 (k) (1) At the election of the taxpayer, there shall be deducted from 18 the portion of its entire net income allocated within the city, depreci- 19 ation with respect to any property such as described in paragraph two of 20 this subdivision, not exceeding twice the depreciation allowed with 21 respect to the same property for federal income tax purposes. Such 22 deduction shall be allowed only upon condition that entire net income be 23 computed without any deduction for depreciation or amortization of the 24 same property, and the total of all deductions allowed under parts one 25 and two of this subchapter three and this part in any taxable year or 26 years with respect to the depreciaton of any such property shall not 27 exceed its cost or other basis. 28 (2) Such deduction shall be allowed only with respect to tangible 29 property which is depreciable pursuant to section one hundred sixty-sev- 30 en of the internal revenue code, having a situs in this city and used in 31 the taxpayer's business, (i) constructed, reconstructed or erected after 32 December thirty-first, nineteen hundred sixty-five, pursuant to a 33 contract which was, on or before December thirty-first, nineteen hundred 34 sixty-seven, and at all times thereafter, binding on the taxpayer or, 35 property, the physical construction, reconstruction or erection of which 36 began on or before December thirty-first, nineteen hundred sixty-seven 37 or which began after such date pursuant to an order placed on or before 38 December thirty-first, nineteen hundred sixty-seven, and then only with 39 respect to that portion of the basis thereof which is properly attribut- 40 able to such construction, reconstruction or erection after December 41 thirty-first, nineteen hundred sixty-five, or (ii) acquired after Decem- 42 ber thirty-first, nineteen hundred sixty-five, pursuant to a contract 43 which was, on or before December thirty-first, nineteen hundred sixty- 44 seven, and at all times thereafter, binding on the taxpayer or pursuant 45 to an order placed on or before December thirty-first, nineteen hundred 46 sixty-seven, by purchase as defined in subdivision (d) of section one 47 hundred seventy-nine of the internal revenue code, if the original use 48 of such property commenced with the taxpayer, commenced in this city and 49 commenced after December thirty-first, nineteen hundred sixty-five, or 50 (iii) acquired, constructed, reconstructed, or erected subsequent to 51 December thirty-first, nineteen hundred sixty-seven, if such acquisi- 52 tion, construction, reconstruction or erection is pursuant to a plan of 53 the taxpayer which was in existence December thirty-first, nineteen 54 hundred sixty-seven and not thereafter substantially modified, and such 55 acquisition, construction, reconstruction or erection would qualify 56 under the rules in paragraph four, five or six of subsection (h) ofS. 8474 556 1 section forty-eight of the internal revenue code provided all references 2 in such paragraphs four, five and six to the dates October nine, nine- 3 teen hundred sixty-six, and October ten, nineteen hundred sixty-six, 4 shall be read as December thirty-first, nineteen hundred sixty-seven. A 5 taxpayer shall be allowed a deduction under clause (i), (ii) or (iii) of 6 this paragraph only if the tangible property shall be delivered or the 7 construction, reconstruction or erection shall be completed on or before 8 December thirty-first, nineteen hundred sixty-nine, except in the case 9 of tangible property which is acquired, constructed, reconstructed or 10 erected pursuant to a contract which was, on or before December thirty- 11 first, nineteen hundred sixty-seven, and at all times thereafter, bind- 12 ing on the taxpayer. Provided, however, for any taxable year beginning 13 on or after January first, nineteen hundred sixty-eight, a taxpayer 14 shall not be allowed a deduction under paragraph one of this subdivision 15 with respect to tangible personal property leased by it to any other 16 person or corporation, provided, that any contract or agreement to lease 17 or rent or for a license to use such property shall be considered a 18 lease. With respect to property which the taxpayer uses itself for 19 purposes other than leasing for part of a taxable year and leases for a 20 part of a taxable year, the taxpayer shall be allowed a deduction under 21 paragraph one of this subdivision in proportion to the part of the year 22 it uses such property. 23 (3) If the deduction allowable for any taxable year pursuant to this 24 subdivision exceeds the portion of the taxpayer's entire net income 25 allocated to this city for such year, the excess may be carried over to 26 the following taxable year or years and may be deducted from the portion 27 of the taxpayer's entire net income allocated to this city for such year 28 or years. 29 (4) In any taxable year when property is sold or otherwise disposed 30 of, with respect to which a deduction has been allowed pursuant to this 31 subdivision, subdivision twelve of section 11-621 or subdivision (j) of 32 section 11-629 of this subchapter, the gain or loss entering into the 33 computation of federal taxable income shall be disregarded in computing 34 entire net income, and there shall be added or subtracted from the 35 portion of entire net income allocated within the city the gain or loss 36 upon such sale or other disposition. In computing such gain or loss the 37 basis of the property sold or disposed of shall be adjusted to reflect 38 the deduction allowed with respect to such property pursuant to para- 39 graph one of this subdivision. Provided, however, that no loss shall be 40 recognized for the purposes of this paragraph with respect to a sale or 41 other disposition of property to a person whose acquisition thereof is 42 not a purchase as defined in subdivision (d) of section one hundred 43 seventy-nine of the internal revenue code. 44 (k-1) A net operating loss deduction shall be allowed which shall be 45 presumably the same as the net operating loss deduction allowed under 46 section one hundred seventy-two of the internal revenue code, except 47 that in every instance where such deduction is allowed under this 48 subchapter: 49 (1) any net operating loss included in determining such deduction 50 shall be adjusted to reflect the inclusions and exclusions from entire 51 net income required by the other provisions of this section; 52 (2) such deduction shall not include any net operating loss sustained 53 during any taxable year beginning prior to January first, two thousand 54 nine, or during any taxable year in which the taxpayer was not subject 55 to the tax imposed by this subchapter;S. 8474 557 1 (3) such deduction shall not exceed the deduction for the taxable year 2 allowed under section one hundred seventy-two of the internal revenue 3 code augmented by the excess of the amount allowed as a deduction pursu- 4 ant to subdivision (h) or (i) of this section, whichever is applicable, 5 over the amount allowed as a deduction pursuant to section one hundred 6 sixty-six or five hundred eighty-five of the internal revenue code, for 7 each taxable year in which the taxpayer had a net operating loss which 8 is carried to the taxable year of the deduction under this provision, in 9 the aggregate, except to the extent such excess was previously deducted 10 in computing entire net income; and 11 (4) the net operating loss deduction allowed under section one hundred 12 seventy-two of the internal revenue code shall for purposes of this 13 subdivision be determined as if the taxpayer had elected under such 14 section to relinquish the entire carryback period with respect to net 15 operating losses. 16 (k-2) Notwithstanding any other provision of this section to the 17 contrary, for taxable years beginning before January first, two thousand 18 twenty-one, any amendment to section one hundred seventy-two of the 19 internal revenue code made after March first, two thousand twenty shall 20 not apply to this part. 21 (1) If the period covered by a return under this part is other than 22 the period covered by the return to the United States treasury depart- 23 ment, entire net income and alternative entire net income shall be 24 determined by multiplying the taxable income reported to such depart- 25 ment, as adjusted pursuant to the provisions of this part, by the number 26 of calendar months or major parts thereof covered by the return under 27 this part and dividing by the number of calendar months or major parts 28 thereof covered by the return to such department. If it shall appear 29 that such method of determining entire net income or alternative entire 30 net income does not properly reflect the taxpayer's income during the 31 period covered by the return under this part, the commissioner of 32 finance shall be authorized in his or her discretion to determine such 33 entire net income or alternative entire net income solely on the basis 34 of the taxpayer's income during the period covered by its return under 35 this part. 36 (m) The commissioner of finance, may, whenever necessary in order to 37 properly reflect the entire net income of any taxpayer, determine the 38 year or period in which any item of income or deduction shall be 39 included, without regard to the method of accounting employed by the 40 taxpayer. 41 (n) Notwithstanding any other provision of this subchapter, for taxa- 42 ble years beginning on or after August first, two thousand two, in the 43 case of a taxpayer that is a partner in a partnership subject to the tax 44 imposed by chapter eleven of this title as a utility, as defined in 45 subdivision six of section 11-1101 of such chapter, entire net income 46 shall not include the taxpayer's distributive or pro rata share for 47 federal income tax purposes of any item of income, gain, loss or 48 deduction of such partnership, or any item of income, gain, loss or 49 deduction of such partnership that the taxpayer is required to take into 50 account separately for federal income tax purposes. 51 (n-1) for taxable years ending after September tenth, two thousand 52 one, in the case of qualified property described in paragraph two of 53 subsection k of section one hundred sixty-eight of the internal revenue 54 code, other than qualified resurgence zone property described in subdi- 55 vision (p) of this section, and other than qualified New York Liberty 56 Zone property described in paragraph two of subsection b of sectionS. 8474 558 1 fourteen hundred-L of the internal revenue code, without regard to 2 clause (i) of subparagraph (C) of such paragraph, a taxpayer shall be 3 allowed with respect to such property the depreciation deduction allow- 4 able under section one hundred sixty-seven as such section would have 5 applied to such property had it been acquired by the taxpayer on Septem- 6 ber tenth, two thousand one, provided, however, that for taxable years 7 beginning on or after January first, two thousand four, in the case of a 8 passenger motor vehicle or a sport utility vehicle subject to the 9 provisions of subdivision (r) of this section, the limitation under 10 clause (i) of subparagraph (A) of paragraph one of subdivision (a) of 11 section two hundred eighty-F of the internal revenue code applicable to 12 the amount allowed as a deduction under this paragraph shall be deter- 13 mined as of the date such vehicle was placed in service and not as of 14 September tenth, two thousand one. 15 (o) for taxable years ending after September tenth, two thousand one, 16 upon the disposition of property to which subdivision (n) of this 17 section applies, the amount of any gain or loss includible in entire net 18 income shall be adjusted to reflect the inclusions and exclusions from 19 entire net income pursuant to paragraph thirteen of subdivision (b) and 20 subdivision (n) of this section attributable to such property. 21 (p) for purposes of subdivisions (n) and (o) of this section, quali- 22 fied resurgence zone property shall mean qualified property described in 23 paragraph two of subsection k of section one hundred sixty-eight of the 24 internal revenue code substantially all of the use of which is in the 25 resurgence zone, as defined below, and is in the active conduct of a 26 trade or business by the taxpayer in such zone, and the original use of 27 which in the resurgence zone commences with the taxpayer after September 28 tenth, two thousand one. The resurgence zone shall mean the area of New 29 York county bounded on the south by a line running from the intersection 30 of the Hudson River with the Holland Tunnel, and running thence east to 31 Canal Street, then running along the centerline of Canal Street to the 32 intersection of the Bowery and Canal Street, running thence in a south- 33 easterly direction diagonally across Manhattan Bridge Plaza, to the 34 Manhattan Bridge, and thence along the centerline of the Manhattan 35 Bridge to the point where the centerline of the Manhattan Bridge would 36 intersect with the easterly bank of the East River, and bounded on the 37 north by a line running from the intersection of the Hudson River with 38 the Holland Tunnel and running thence north along West Avenue to the 39 intersection of Clarkson Street then running east along the centerline 40 of Clarkson Street to the intersection of Washington Avenue, then 41 running south along the centerline of Washington Avenue to the inter- 42 section of West Houston Street, then east along the centerline of West 43 Houston Street, then at the intersection of the Avenue of the Americas 44 continuing east along the centerline of East Houston Street to the east- 45 erly bank of the East River. 46 (q) Related members expense add back. (1) Definitions. (A) Related 47 member. "Related member" means a related person as defined in subpara- 48 graph (c) of paragraph three of subsection (b) of section four hundred 49 sixty-five of the internal revenue code, except that "fifty percent" 50 shall be substituted for "ten percent". 51 (B) Effective rate of tax. "Effective rate of tax" means, as to any 52 city, the maximum statutory rate of tax imposed by the city on or meas- 53 ured by a related member's net income multiplied by the apportionment 54 percentage, if any, applicable to the related member under the laws of 55 said jurisdiction. For purposes of this definition, the effective rate 56 of tax as to any city is zero where the related member's net income taxS. 8474 559 1 liability in said city is reported on a combined or consolidated return 2 including both the taxpayer and the related member where the reported 3 transactions between the taxpayer and the related member are eliminated 4 or offset. Also, for purposes of this definition, when computing the 5 effective rate of tax for a city in which a related member's net income 6 is eliminated or offset by a credit or similar adjustment that is 7 dependent upon the related member either maintaining or managing intan- 8 gible property or collecting interest income in that city, the maximum 9 statutory rate of tax imposed by said city shall be decreased to reflect 10 the statutory rate of tax that applies to the related member as effec- 11 tively reduced by such credit or similar adjustment. 12 (C) Royalty payments. Royalty payments are payments directly connected 13 to the acquisition, use, maintenance or management, ownership, sale, 14 exchange, or any other disposition of licenses, trademarks, copyrights, 15 trade names, trade dress, service marks, mask works, trade secrets, 16 patents and any other similar types of intangible assets as determined 17 by the commissioner of finance, and include amounts allowable as inter- 18 est deductions under section one hundred sixty-three of the internal 19 revenue code to the extent such amounts are directly or indirectly for, 20 related to or in connection with the acquisition, use, maintenance or 21 management, ownership, sale, exchange or disposition of such intangible 22 assets. 23 (D) Valid business purpose. A valid business purpose is one or more 24 business purposes, other than the avoidance or reduction of taxation, 25 which alone or in combination constitute the primary motivation for some 26 business activity or transaction, which activity or transaction changes 27 in a meaningful way, apart from tax effects, the economic position of 28 the taxpayer. The economic position of the taxpayer includes an increase 29 in the market share of the taxpayer, or the entry by the taxpayer into 30 new business markets. 31 (2) Royalty expense add backs. (A) For the purpose of computing entire 32 net income, a taxpayer must add back royalty payments directly or indi- 33 rectly paid, accrued, or incurred in connection with one or more direct 34 or indirect transactions with one or more related members during the 35 taxable year to the extent deductible in calculating federal taxable 36 income. 37 (B) Exceptions. (i) The adjustment required in this subdivision shall 38 not apply to the portion of the royalty payment that the taxpayer estab- 39 lishes, by clear and convincing evidence of the type and in the form 40 specified by the commissioner of finance, meets all of the following 41 requirements: (I) the related member was subject to tax in this city or 42 another city within the United States or a foreign nation or some combi- 43 nation thereof on a tax base that included the royalty payment paid, 44 accrued or incurred by the taxpayer; (II) the related member during the 45 same taxable year directly or indirectly paid, accrued or incurred such 46 portion to a person that is not a related member; and (III) the trans- 47 action giving rise to the royalty payment between the taxpayer and the 48 related member was undertaken for a valid business purpose. 49 (ii) The adjustment required in this subdivision shall not apply if 50 the taxpayer establishes, by clear and convincing evidence of the type 51 and in the form specified by the commissioner of finance, that: (I) the 52 related member was subject to tax on or measured by its net income in 53 this city or another city within the United States, or some combination 54 thereof; (II) the tax base for such tax included the royalty payment 55 paid, accrued or incurred by the taxpayer; and (III) the aggregate 56 effective rate of tax applied to the related member in those jurisdic-S. 8474 560 1 tions is no less than eighty percent of the statutory rate of tax that 2 applied to the taxpayer under section 11-643.5 of this part for the 3 taxable year. 4 (iii) The adjustment required in this subdivision shall not apply if 5 the taxpayer establishes, by clear and convincing evidence of the type 6 and in the form specified by the commissioner of finance, that: (I) the 7 royalty payment was paid, accrued or incurred to a related member organ- 8 ized under the laws of a country other than the United States; (II) the 9 related member's income from the transaction was subject to a comprehen- 10 sive income tax treaty between such country and the United States; (III) 11 the related member was subject to tax in a foreign nation on a tax base 12 that included the royalty payment paid, accrued or incurred by the 13 taxpayer; (IV) the related member's income from the transaction was 14 taxed in such country at an effective rate of tax at least equal to that 15 imposed by this city; and (V) the royalty payment was paid, accrued or 16 incurred pursuant to a transaction that was undertaken for a valid busi- 17 ness purpose and using terms that reflect an arm's length relationship. 18 (iv) The adjustment required in this subdivision shall not apply if 19 the taxpayer and the commissioner of finance agree in writing to the 20 application or use of alternative adjustments or computations. The 21 commissioner of finance may, in his or her discretion, agree to the 22 application or use of alternative adjustments or computations when he or 23 she concludes that in the absence of such agreement the income of the 24 taxpayer would not be properly reflected. 25 (r) For taxable years beginning on or after January first, two thou- 26 sand four, in the case of a taxpayer that is not an eligible farmer as 27 defined in subsection (n) of section six hundred six of the tax law, a 28 taxpayer shall be allowed with respect to a sport utility vehicle that 29 is not a passenger automobile as defined in paragraph five of subsection 30 (d) of section two hundred eighty-F of the internal revenue code, the 31 deductions allowable under sections one hundred seventy-nine, one 32 hundred sixty-seven and one hundred sixty-eight of the internal revenue 33 code, determined as if such sport utility vehicle were a passenger auto- 34 mobile as defined in such paragraph five. 35 (s) Upon the disposition of property to which subdivision (r) of this 36 section applies, the amount of any gain or loss includible in entire net 37 income shall be adjusted to reflect the modification provided in such 38 subdivision attributable to such property. 39 (t) Entire net income shall not include the amount of any grant 40 received through either the COVID-19 pandemic small business recovery 41 grant program, pursuant to section sixteen-ff of the New York state 42 urban development corporation act, or the small business resilience 43 grant program administered by the department of small business services, 44 to the extent the amount of either such grant is included in federal 45 taxable income. 46 § 11-641.1 Computation of alternative entire net income. (a) Alterna- 47 tive entire net income means entire net income as determined pursuant to 48 section 11-641 of this part, except that the deductions described in 49 paragraphs eleven and twelve of subdivision (e) of section 11-641 of 50 this part shall not be allowed. 51 (b) Any election made pursuant to paragraph two of subdivision (b) of 52 section 11-642 of this part with respect to the modification provided 53 for in subdivision (f) of section 11-641 of this part shall be deemed to 54 have been made for purposes of computing alternative entire net income. 55 § 11-642 Allocation. (a) In general. If a taxpayer's entire net 56 income, alternative entire net income, or taxable assets are derivedS. 8474 561 1 from business carried on within and without the city, the taxpayer shall 2 for purposes of computing allocation percentages compute payroll, 3 receipts, and deposits percentages in accordance with the following 4 rules: 5 (1) The taxpayer shall ascertain the percentage which eighty percent 6 of the total wages, salaries and other personal service compensation 7 during the taxable year of employees within the city, except wages, 8 salaries and other personal service compensation of general executive 9 officers, bears to the total wages, salaries and other personal service 10 compensation during the taxable year of all the taxpayer's employees 11 within and without the city, except wages, salaries and other personal 12 service compensation of general executive officers. 13 (2) (A) The taxpayer shall ascertain the percentage which the receipts 14 of the taxpayer arising during the taxable year from: 15 (i) loans, including a taxpayer's portion of a participation in a 16 loan, and financing leases within the city, and all other business 17 receipts earned within the city, bear to 18 (ii) the total amount of the taxpayer's receipts from loans, including 19 a taxpayer's portion of a participation in a loan, and financing leases 20 and all other business receipts within and without the city. 21 (B) All interest from loans and financing leases is located where the 22 greater portion of income producing activity related to the loan or 23 financing lease occurred; provided, however: 24 (i) In the case of a taxpayer described in paragraph one, two, three, 25 four, five or seven of subdivision (a) of section 11-640 of this part, a 26 loan or financing lease attributed by such taxpayer to a branch without 27 the city shall be presumed to be properly so attributed provided that 28 such presumption may be rebutted if the commissioner of finance demon- 29 strates that the greater portion of income producing activity related to 30 the loan or financing lease did not occur at such branch. Where such 31 presumption has been rebutted, the loan or financing lease shall be 32 presumed to be within the city if the taxpayer had a branch within the 33 city at the time the loan or financing lease was made. The taxpayer may 34 rebut such presumption by demonstrating that the greater portion of 35 income producing activity related to the loan or financing lease did not 36 occur within the city. In the case of a loan or financing lease which is 37 recorded on the books of a place without the city which is not a branch, 38 it shall be presumed that the greater portion of income producing activ- 39 ity related to such loan or financing lease occurred within the city if 40 the taxpayer had a branch within the city at the time the loan or 41 financing lease was made. The taxpayer may rebut such presumption by 42 demonstrating that the greater portion of income producing activity 43 related to the loan or financing lease did not occur within the city. 44 (ii) In the case of a taxpayer described in paragraph six or nine of 45 subdivision (a) of section 11-640 of this part, a loan or financing 46 lease attributed by such taxpayer to a bona fide office without the city 47 shall be presumed to be properly so attributed provided that such 48 presumption may be rebutted if the commissioner of finance demonstrates 49 that the greater portion of income producing activity related to the 50 loan or financing lease did not occur without the city. 51 (C) Receipts from lease transactions other than financing leases 52 referred to in subparagraph (B) are located where the property subject 53 to the lease is located. 54 (D) (i) Interest, and fees and penalties in the nature of interest, 55 from bank, credit, travel and entertainment card receivables are earnedS. 8474 562 1 within the city if the mailing address of the card holder in the records 2 of the taxpayer is in the city; and 3 (ii) Service charges and fees from such cards are earned within the 4 city if the card is serviced in the city; and 5 (iii) Receipts from merchant discounts are earned within the city if 6 the merchant is located within the city. 7 (E) The portion of total net gains and other income from trading 8 activities, including but not limited to foreign exchange, options and 9 financial futures, and from investment activities which is attributed 10 within the city shall be ascertained by multiplying such total net gains 11 and other income by a fraction the numerator of which is the average 12 value of the trading assets and investment assets attributable to the 13 city and the denominator of which is the average value of all trading 14 and investment assets. A trading asset or investment asset is attribut- 15 able to the city if the greater portion of income producing activity 16 related to the trading asset or investment asset occurred within the 17 city. 18 (F) Fees or charges from the issuance of letters of credit, travelers 19 checks and money orders are earned within the city if such letters of 20 credit, travelers checks or money orders are issued within the city. 21 (G) Rules for receipts from certain services to investment companies. 22 (1) For taxable years beginning on or after January first, two thousand 23 one, the portion of receipts received from an investment company arising 24 from the sale of management, administration or distribution services to 25 such investment company determined in accordance with clause two of this 26 subparagraph shall be deemed to arise from services performed within the 27 city, such portion referred to herein as the Staten Island city portion. 28 (2) The Staten Island city portion shall be the product of (i) the 29 total of such receipts from the sale of such services and (ii) a frac- 30 tion. The numerator of that fraction is the sum of the monthly percent- 31 ages, as defined hereinafter, determined for each month of the invest- 32 ment company's taxable year for federal income tax purposes which 33 taxable year ends within the taxable year of the taxpayer, but excluding 34 any month during which the investment company had no outstanding shares. 35 The monthly percentage for each such month is determined by dividing (i) 36 the number of shares in the investment company which are owned on the 37 last day of the month by shareholders that are domiciled in the city by 38 (ii) the total number of shares in the investment company outstanding on 39 that date. The denominator of the fraction is the number of such monthly 40 percentages. 41 (3)(i) For purposes of this subparagraph, the term "domicile", in the 42 case of an individual, shall have the meaning as in chapter seventeen of 43 this title; an estate or trust is domiciled in the city if it is a city 44 resident estate or trust as defined in paragraph three of subdivision 45 (b) of section 11-1705 of this code; a business entity is domiciled in 46 the city if the location of the actual seat of management or control is 47 in the city. It shall be presumed that the domicile of a shareholder, 48 with respect to any month, is his, her or its mailing address on the 49 records of the investment company as of the last day of such month. 50 (ii) For purposes of this subparagraph, the term "investment company" 51 means a regulated investment company, as defined in section eight 52 hundred fifty-one of the internal revenue code, and a partnership to 53 which subdivision (a) of section seven thousand seven hundred four of 54 the internal revenue code applies, by virtue of paragraph three of 55 subdivision (c) of section seven thousand seven hundred four of such 56 code, and that meets the requirements of subdivision (b) of sectionS. 8474 563 1 eight hundred fifty-one of such code. This shall be applied to the 2 taxable year for federal income tax purposes of the business entity that 3 is asserted to constitute an investment company that ends within the 4 taxable year of the taxpayer. 5 (iii) For purposes of this subparagraph, the term "receipts from an 6 investment company" includes amounts received directly from an invest- 7 ment company as well as amounts received from the shareholders in such 8 investment company in their capacity as such. 9 (iv) For purposes of this subparagraph, the term "management services" 10 means the rendering of investment advice to an investment company, 11 making determinations as to when sales and purchases of securities are 12 to be made on behalf of an investment company, or the selling or 13 purchasing of securities constituting assets of an investment company, 14 and related activities, but only where such activity or activities are 15 performed pursuant to a contract with the investment company entered 16 into pursuant to subdivision (a) of section fifteen of the federal 17 investment company act of nineteen hundred forty, as amended. 18 (v) For purposes of this subparagraph, the term "distribution 19 services" means the services of advertising, servicing investor 20 accounts, including redemptions, marketing shares or selling shares of 21 an investment company, but, in the case of advertising, servicing inves- 22 tor accounts, including redemptions, or marketing shares, only where 23 such service is performed by a person who is, or was, in the case of a 24 closed end company, also engaged in the service of selling such shares. 25 In the case of an open end company, such service of selling shares must 26 be performed pursuant to a contract entered into pursuant to subdivision 27 (b) of section fifteen of the federal investment company act of nineteen 28 hundred forty, as amended. 29 (vi) For purposes of this subparagraph, the term "administration 30 services" includes clerical, accounting, bookkeeping, data processing, 31 internal auditing, legal and tax services performed for an investment 32 company but only if the provider of such service or services during the 33 taxable year in which such service or services are sold also sells 34 management or distribution services, as defined in clause (v) of this 35 subparagraph, to such investment company. 36 (H) All receipts from the performance of services not described in 37 this paragraph are earned within the city if the services are performed 38 in the city. When a service is performed both within and without the 39 city, the receipts shall be allocated within and without the city in 40 accordance with rules and regulations of the commissioner of finance. 41 (I) All other receipts not described in subparagraphs (B) through (H) 42 of this paragraph shall be attributable within and without the city in 43 accordance with rules and regulations issued by the commissioner of 44 finance. 45 (3) The taxpayer shall ascertain the percentage which the average 46 value of deposits maintained at branches within the city during the 47 taxable year, bears to the average value of all the taxpayer's deposits 48 maintained at branches within and without the city during the taxable 49 year. 50 (4) Each percentage computed pursuant to this subsection shall be 51 computed on a cash or accrual basis according to the method of account- 52 ing used for the taxable year. The receipts percentage shall include 53 only receipts which are included in alternative entire net income for 54 the taxable year. The deposits and payroll percentages shall include 55 only deposits and payroll the expenses of which are included in the 56 computation of alternative entire net income for the taxable year.S. 8474 564 1 (5) For purposes of this section: 2 (A) The term "bona fide office" means an office at which the taxpayer 3 carries on its business in a regular and systematic manner and which is 4 continuously maintained, occupied and used by employees of the taxpayer. 5 (B) The term "branch" means a bona fide office which is used by the 6 taxpayer on a regular and systematic basis to (i) approve loans, regard- 7 less of whether the approval of certain classes of loans requires review 8 or final approval by another office of the taxpayer, (ii) accept loan 9 repayments, (iii) disburse funds, and (iv) conduct one or more other 10 functions of a banking business. 11 (6) If it shall appear to the commissioner of finance that the allo- 12 cation percentage determined in subdivision (b), (c), or (d) of this 13 section does not properly reflect the activity, business, income or 14 assets of a taxpayer within the city, the commissioner of finance shall 15 be authorized in his discretion to adjust it by (1) excluding one or 16 more of the factors therein, (2) including one or more other factors, or 17 (3) any other similar or different method calculated to effect a fair 18 and proper allocation of the income or assets reasonably attributable to 19 the city. 20 (7) The commissioner of finance from time to time shall publish all 21 rulings of general public interest with respect to any application of 22 the provisions of paragraph six of this subdivision. 23 (b) Allocation of entire net income. 24 (1) If a taxpayer's entire net income is derived from business carried 25 on both within and without the city, the portion thereof which is 26 derived from business carried on within the city shall be determined by 27 multiplying its entire net income by the income allocation percentage 28 determined as follows: add the percentages ascertained under paragraphs 29 one, two and three of subdivision (a) of this section, plus an addi- 30 tional percentage equal to the receipts percentage ascertained under 31 paragraph two of such subdivision and an additional percentage equal to 32 the deposits percentage ascertained under paragraph three of such subdi- 33 vision, and divide the result by the number of percentages so added 34 together. 35 (1-a) Notwithstanding the provisions of paragraph one of this subdivi- 36 sion, each banking corporation described in paragraph nine of subdivi- 37 sion (a) of section 11-640 of this part subject to the tax imposed by 38 this part that substantially provides management, administrative or 39 distribution services to an investment company, as such terms are 40 defined in subparagraph (G) of paragraph two of subdivision (a) of this 41 section, shall determine the portion of its entire net income derived 42 from business carried on within the city by multiplying such income by 43 an income allocation percentage obtained as follows: 44 (A) For taxable years beginning in two thousand nine, the income allo- 45 cation percentage shall be determined by adding together the following 46 percentages: 47 (i) the product of eighteen percent and the percentage determined 48 under paragraph one of subdivision (a) of this section, 49 (ii) the product of forty-six percent and the percentage determined 50 under paragraph two of subdivision (a) of this section, and 51 (iii) the product of thirty-six percent and the percentage determined 52 under paragraph three of subdivision (a) of this section. 53 (B) For taxable years beginning in two thousand ten, the income allo- 54 cation percentage shall be determined by adding together the following 55 percentages:S. 8474 565 1 (i) the product of sixteen percent and the percentage determined under 2 paragraph one of subdivision (a) of this section, 3 (ii) the product of fifty-two percent and the percentage determined 4 under paragraph two of subdivision (a) of this section, and 5 (iii) the product of thirty-two percent and the percentage determined 6 under paragraph three of subdivision (a) of this section. 7 (C) For taxable years beginning in two thousand eleven, the income 8 allocation percentage shall be determined by adding together the follow- 9 ing percentages: 10 (i) the product of fourteen percent and the percentage determined 11 under paragraph one of subdivision (a) of this section, 12 (ii) the product of fifty-eight percent and the percentage determined 13 under paragraph two of subdivision (a) of this section, and 14 (iii) the product of twenty-eight percent and the percentage deter- 15 mined under paragraph three of subdivision (a) of this section. 16 (D) For taxable years beginning in two thousand twelve, the income 17 allocation percentage shall be determined by adding together the follow- 18 ing percentages: 19 (i) the product of twelve percent and the percentage determined under 20 paragraph one of subdivision (a) of this section, 21 (ii) the product of sixty-four percent and the percentage determined 22 under paragraph two of subdivision (a) of this section, and 23 (iii) the product of twenty-four percent and the percentage determined 24 under paragraph three of subdivision (a) of this section. 25 (E) For taxable years beginning in two thousand thirteen, the income 26 allocation percentage shall be determined by adding together the follow- 27 ing percentages: 28 (i) the product of ten percent and the percentage determined under 29 paragraph one of subdivision (a) of this section, 30 (ii) the product of seventy percent and the percentage determined 31 under paragraph two of subdivision (a) of this section, and 32 (iii) the product of twenty percent and the percentage determined 33 under paragraph three of subdivision (a) of this section. 34 (F) For taxable years beginning in two thousand fourteen, the income 35 allocation percentage shall be determined by adding together the follow- 36 ing percentages: 37 (i) the product of eight percent and the percentage determined under 38 paragraph one of subdivision (a) of this section, 39 (ii) the product of seventy-six percent and the percentage determined 40 under paragraph two of subdivision (a) of this section, and 41 (iii) the product of sixteen percent and the percentage determined 42 under paragraph three of subdivision (a) of this section. 43 (G) For taxable years beginning in two thousand fifteen, the income 44 allocation percentage shall be determined by adding together the follow- 45 ing percentages: 46 (i) the product of six percent and the percentage determined under 47 paragraph one of subdivision (a) of this section, 48 (ii) the product of eighty-two percent and the percentage determined 49 under paragraph two of subdivision (a) of this section, and 50 (iii) the product of twelve percent and the percentage determined 51 under paragraph three of subdivision (a) of this section. 52 (H) For taxable years beginning in two thousand sixteen, the income 53 allocation percentage shall be determined by adding together the follow- 54 ing percentages: 55 (i) the product of four percent and the percentage determined under 56 paragraph one of subdivision (a) of this section,S. 8474 566 1 (ii) the product of eighty-eight percent and the percentage determined 2 under paragraph two of subdivision (a) of this section, and 3 (iii) the product of eight percent and the percentage determined under 4 paragraph three of subdivision (a) of this section. 5 (I) For taxable years beginning in two thousand seventeen, the income 6 allocation percentage shall be determined by adding together the follow- 7 ing percentages: 8 (i) the product of two percent and the percentage determined under 9 paragraph one of subdivision (a) of this section, 10 (ii) the product of ninety-four percent and the percentage determined 11 under paragraph two of subdivision (a) of this section, and 12 (iii) the product of four percent and the percentage determined under 13 paragraph three of subdivision (a) of this section. 14 (J) For taxable years beginning after two thousand seventeen, the 15 income allocation percentage shall be the percentage determined under 16 paragraph two of subdivision (a) of this section. 17 (K) The commissioner shall promulgate rules necessary to implement the 18 provisions of this paragraph under such circumstances where any of the 19 percentages to be determined under paragraph one, two or three of subdi- 20 vision (a) of this section cannot be determined because the taxpayer has 21 no compensation, receipts or deposits within or without the city. 22 (2) (A) In lieu of the modification provided for in subdivision (f) of 23 section 11-641 of this part, relating to a modification for the adjusted 24 eligible net income of an international banking facility, a taxpayer 25 may, in the manner prescribed by the commissioner of finance, elect to 26 modify on an annual basis its income allocation percentage in the manner 27 described in clauses (i), (ii) and (iii) of this paragraph below: 28 (i) wages, salaries and other personal service compensation properly 29 attributable to the production of eligible gross income of the taxpay- 30 er's international banking facility shall not be included in the compu- 31 tation of wages, salaries and other personal service compensation of 32 employees within the city, 33 (ii) receipts properly attributable to the production of eligible 34 gross income of the taxpayer's international banking facility shall not 35 be included in the computation of receipts within the city, and 36 (iii) deposits from foreign persons which are properly attributable to 37 the production of eligible gross income of the taxpayer's international 38 banking facility shall not be included in the computation of deposits 39 maintained at branches within the city. 40 (B) For purposes of this paragraph, the term "eligible gross income" 41 refers to such term as set out in subdivision (f) of section 11-641 of 42 this part except that the term "foreign person" as defined in paragraph 43 eight of such subdivision (f) shall not include a foreign branch of the 44 taxpayer and in no event shall transactions between the taxpayer's 45 international banking facility and its foreign branches be considered. 46 (c) Allocation of alternative entire net income. If a taxpayer's 47 alternative entire net income is derived from business carried on both 48 within and without the city, the portion thereof which is derived from 49 business carried on within the city shall be determined by multiplying 50 its alternative entire net income by the alternative entire net income 51 allocation percentage determined as follows: 52 (1) Recompute the payroll percentage under paragraph one of subdivi- 53 sion (a) of this section without giving consideration to the phrase 54 "eighty percent of," add to the resulting percentage the percentages 55 ascertained under paragraphs two and three of such subdivision, and 56 divide the result by the number of percentages so added together.S. 8474 567 1 (2) When an election has been made pursuant to paragraph two of subdi- 2 vision (b) of this section, relating to international banking facili- 3 ties, the taxpayer shall make the modifications described in such para- 4 graph for purposes of its alternative entire net income allocation 5 percentage. 6 (d) Allocation of taxable assets. If the taxpayer's taxable assets are 7 derived from business carried on both within and without the city, the 8 portion thereof which is derived from business carried on within the 9 city shall be determined by multiplying its taxable assets by an asset 10 allocation percentage determined in the same manner as the income allo- 11 cation percentage under subdivision (b) of this section is determined 12 when the election provided for in paragraph two of such subdivision has 13 been made, except that the modifications described in clauses (i), (ii) 14 and (iii) of subparagraph (A) of such paragraph shall not be made. 15 § 11-643 Computation of tax for taxable years ending on or before 16 December thirty-first, nineteen hundred seventy-three. For taxable 17 years ending on or before December thirty-first, nineteen hundred seven- 18 ty-three, the tax imposed by section 11-639 of this part shall be the 19 greater of the following computations: 20 (a) Basic tax. Five and sixty-three one-hundredths percent of the 21 taxpayer's entire net income, or the portion thereof allocated to this 22 city, for the taxable year or part thereof. 23 (b) Alternative minimum tax. If the tax under subdivision (a) of this 24 section is less than any of the following amounts, the tax shall be the 25 largest of the following amounts: 26 (1) Except for a savings bank and savings and loan association, one 27 and one-quarter mills upon each dollar of such part of the taxpayer's 28 issued capital stock on the last day of the taxable year, at its face 29 value, but if such taxpayer has stock without par value, such stock 30 shall be taken at its actual or market value, and not less than five 31 dollars per share, as may be determined by the commissioner of finance, 32 as the gross income of such taxpayer derived from business carried on 33 within the city, during such taxable year, bears to its gross income 34 derived from all business, both within and without the city during said 35 year; except that if the period covered by the return is other than 36 twelve months, the tax shall be prorated on the basis of the number of 37 months or major portions thereof included in the return. For purposes of 38 this paragraph, the term "gross income" shall have the same meaning as 39 it has in the laws of the United States relating to federal income 40 taxes. 41 (2) For a savings bank and savings and loan association, one and 42 forty-three one-hundredths percent of the interest or dividends credited 43 by it to depositors or shareholders during the taxable year, provided 44 that, in determining such amount, each interest or dividend credit to a 45 depositor or shareholder shall be deemed to be the interest or dividend 46 actually credited or the interest or dividend which would have been 47 credited if it had been computed and credited at the rate of three and 48 one-half percent per annum, whichever is less. 49 (3) Twelve and one-half dollars. 50 § 11-643.1 Computation of tax for taxable years beginning on or after 51 January first, nineteen hundred seventy-four and ending on or before 52 December thirty-first, nineteen hundred seventy-four. For taxable years 53 beginning on or after January first, nineteen hundred seventy-four and 54 ending on or before December thirty-first, nineteen hundred seventy- 55 four, the tax imposed by section 11-639 of this part shall be the great- 56 er of the following computations:S. 8474 568 1 (a) Basic tax. Six and seven hundred fifty-six one-thousandths 2 percent of the taxpayer's entire net income, or the portion thereof 3 allocated to this city, for the taxable year, or part thereof. 4 (b) Alternative minimum tax. If the tax under subdivision (a) of 5 this section is less than any of the following amounts, the tax shall be 6 the largest of the following amounts: 7 (1) Except for a savings bank and savings and loan association, one 8 and one-half mills upon each dollar of such part of the taxpayer's 9 issued capital stock on the last day of the taxable year, at its face 10 value, but if such taxpayer has stock without par value, such stock 11 shall be taken at its actual or market value, and not less than five 12 dollars per share, as may be determined by the commissioner of finance, 13 as the gross income of such taxpayer derived from business carried on 14 within the city, during such taxable year bears to its gross income 15 derived from all business, both within and without the city during said 16 year; except that if the period covered by the return is other than 17 twelve months, the tax shall be prorated on the basis of the number of 18 months or major portions thereof included in the return. For purposes 19 of this paragraph, the term "gross income" shall have the same meaning 20 as it has in the laws of the United States relating to federal income 21 taxes. 22 (2) For a savings bank and savings and loan association, one and seven 23 hundred sixteen one-thousandths percent of the interest or dividends 24 credited by it to depositors or shareholders during the taxable year, 25 provided that, in determining such amount, each interest or dividend 26 credit to a depositor or shareholder shall be deemed to be the interest 27 or dividend actually credited or the interest or dividend which would 28 have been credited if it had been computed and credited at the rate of 29 three and one-half percent per annum, whichever is less. 30 (3) Fifteen dollars. 31 § 11-643.2 Computation of tax for taxable years beginning in nineteen 32 hundred seventy-three and ending in nineteen hundred seventy-four. For 33 each taxable year beginning in nineteen hundred seventy-three and ending 34 in nineteen hundred seventy-four, two tentative taxes shall be computed, 35 the first as provided in section 11-643 and the second as provided in 36 section 11-643.1 of this part, and the tax for each such year shall be 37 the sum of that proportion of each tentative tax which the number of 38 days in nineteen hundred seventy-three and the number of days in nine- 39 teen hundred seventy-four, respectively, which fall within the taxable 40 year, bears to the number of days in the entire taxable year. 41 § 11-643.3 Computation of tax for taxable years beginning on or after 42 January first, nineteen hundred seventy-five and before January first, 43 nineteen hundred eighty-five. For taxable years beginning on or after 44 January first, nineteen hundred seventy-five and before January first, 45 nineteen hundred eighty-five, the tax imposed by section 11-639 of this 46 part shall be the greater of the following computations: 47 (a) Basic tax. (1) Except for a savings bank and savings and loan 48 association, thirteen and eight hundred twenty-three one-thousandths 49 percent of the taxpayer's entire net income, or the portion thereof 50 allocated to this city, for the taxable year, or part thereof. 51 (2) For a savings bank and savings and loan association, twelve and 52 one hundred thirty-four thousandths percent of the taxpayer's entire net 53 income, or the portion thereof allocated to this city, for the taxable 54 year, or part thereof.S. 8474 569 1 (b) Alternative minimum tax. If the tax under subdivision (a) of 2 this section is less than any of the following amounts, the tax shall be 3 the largest of the following amounts: 4 (1) Except for a savings bank and savings and loan association, two 5 and six-tenths mills upon each dollar of such part of the taxpayer's 6 issued capital stock on the last day of the taxable year, at its face 7 value, but if such taxpayer has stock without par value, such stock 8 shall be taken at its actual or market value, and not less than five 9 dollars per share, as may be determined by the commissioner of finance, 10 as the gross income of such taxpayer derived from business carried on 11 within the city during such taxable year bears to its gross income 12 derived from all business, both within and without the city during said 13 year; except that if the period covered by the return is other than 14 twelve months, the tax shall be prorated on the basis of the number of 15 months or major portions thereof included in the return. For purposes 16 of this paragraph, the term "gross income" shall have the same meaning 17 as it has in the laws of the United States relating to federal income 18 taxes. 19 (2) Except as otherwise provided in paragraph three of this subdivi- 20 sion, for a savings bank and savings and loan association, two and five 21 hundred seventy-four one-thousandths percent of the interest or divi- 22 dends credited by it to depositors or shareholders during any taxable 23 year, provided that, in determining such amount, each interest or divi- 24 dend credit to a depositor or shareholder shall be deemed to be the 25 interest or dividend actually credited or the interest or dividend which 26 would have been credited if it had been computed and credited at the 27 rate of three and one-half percent per annum, whichever is less. 28 (3) (i) For a savings bank and savings and loan association, for any 29 quarterly accounting period in which such savings bank or savings and 30 loan association credits or pays dividends to its depositors or share- 31 holders on or after the first day of October, nineteen hundred eighty- 32 one but before the first day of July, nineteen hundred eighty-six, and 33 after such credit or payment the net worth of such savings bank or 34 savings and loan association is less than five percent of the amount due 35 depositors, one and eight hundred twenty-four one-thousandths percent of 36 the interest or dividends credited by it to a depositor or shareholder 37 during such accounting period, provided that, in determining such 38 amount, each interest or dividend credit to depositors or shareholders 39 shall be deemed to be the interest or dividend actually credited or the 40 interest or dividend which would have been credited if it had been 41 computed and credited at the rate of three and one-half percent per 42 annum, whichever is less. In determining the lesser of the amount of 43 interest or dividends actually credited to depositors or shareholders or 44 the amount of interest or dividends which would have been credited if 45 such interest or dividends had been computed and credited at the rate of 46 three and one-half percent per annum, the provisions of subparagraph 47 (ii) of this paragraph shall not be considered. 48 (ii) For purposes of the computation provided for in subparagraph (i) 49 of this paragraph, except where the tax computed under subparagraph (i) 50 of this paragraph is computed as if the interest or dividends were 51 computed and credited at the rate of three and one-half percent per 52 annum, that portion of the interest or dividends credited on or after 53 the first day of October, nineteen hundred eighty-one but before the 54 first day of July, nineteen hundred eighty-six by: 55 (A) a savings bank to a depositor or shareholder which is attributable 56 to an increase or a deemed increase in the gross earnings, surplus fund,S. 8474 570 1 or net worth of the savings bank, which increase became available for 2 interest or dividends upon the prior written approval of the superinten- 3 dent of banks pursuant to the provisions of subdivision four of section 4 two hundred forty-four of the banking law; or 5 (B) a savings and loan association to a depositor or shareholder which 6 is attributable to an increase or a deemed increase in gross income, 7 undivided profits, surplus account or net worth of the savings and loan 8 association, which increase became available for interest or dividends 9 upon the prior written approval of the superintendent of banks pursuant 10 to the provisions of subdivision two of section three hundred eighty- 11 seven of the banking law; or 12 (C) a federal savings bank or a federal savings and loan association 13 to a depositor or shareholder, which would have required and received 14 prior written approval of the superintendent of banks in respect to 15 increases in gross income, gross earnings, undivided profits, surplus 16 funds, surplus accounts or net worth available for dividends pursuant to 17 the provisions of subdivision four of section two hundred forty-four of 18 the banking law and subdivision two of section three hundred eighty-sev- 19 en of the banking law, respectively, were the provisions of sections two 20 hundred forty-four and three hundred eighty-seven of the banking law 21 applicable to federal savings banks and federal savings and loan associ- 22 ations shall not be considered to have been credited to depositors or 23 shareholders. Where the tax computed under subparagraph (i) of this 24 paragraph is computed as if the interest or dividends were computed and 25 credited at the rate of three and one-half percent per annum, the amount 26 of interest or dividends which shall not be considered to have been 27 credited to depositors or shareholders is an amount which bears the same 28 ratio to the interest or dividends which would have been credited at the 29 rate of three and one-half percent per annum as the amount of that 30 portion of the interest or dividends paid or credited on or after the 31 first day of October, nineteen hundred eighty-one but before the first 32 day of July, nineteen hundred eighty-six, which is attributable to an 33 increase or deemed increase in gross income, gross earnings, undivided 34 profits, surplus funds, surplus account or net worth available for divi- 35 dends pursuant to the provisions of subdivision four of section two 36 hundred forty-four of the banking law or subdivision two of section 37 three hundred eighty-seven of the banking law, bears to the amount of 38 interest or dividends actually credited. For purposes of this clause, 39 the determination of whether a federal savings bank or federal savings 40 and loan association would have required and received prior written 41 approval of the superintendent of banks shall be made by the superinten- 42 dent of banks, upon application and upon such forms as he or she may 43 require, by applying the provision of subdivision four of section two 44 hundred forty-four of the banking law, as if such provisions were appli- 45 cable to federal savings banks, and subdivision two of section three 46 hundred eighty-seven of the banking law, as if such provisions were 47 applicable to federal savings and loan associations, and the superinten- 48 dent of banks may require and examine such information as he or she may 49 deem necessary to make such determinations. 50 (4) (i) Except for a savings bank and savings and loan association, 51 twenty-five dollars. 52 (ii) For a savings bank and savings and loan association, twenty 53 dollars. 54 § 11-643.4 Computation of tax for taxable years beginning in nineteen 55 hundred seventy-four and ending in nineteen hundred seventy-five. For 56 each taxable year beginning in nineteen hundred seventy-four and endingS. 8474 571 1 in nineteen hundred seventy-five, two tentative taxes shall be computed, 2 the first as provided in section 11-643.1 and the second as provided in 3 section 11-643.3 of this part, and the tax for each such year shall be 4 the sum of that proportion of each tentative tax which the number of 5 days in nineteen hundred seventy-four and the number of days in nineteen 6 hundred seventy-five, respectively, which fall within the taxable year, 7 bears to the number of days in the entire taxable year. 8 § 11-643.5 Computation of tax for taxable years beginning on or after 9 January first, nineteen hundred eighty-five. For taxable years beginning 10 on or after January first, nineteen hundred eighty-five, the tax imposed 11 by section 11-639 of this part shall be the greater of the following 12 computations: 13 (a) Basic tax. Nine percent of the taxpayer's entire net income, or 14 the portion thereof allocated to the city, for the taxable year or part 15 thereof. 16 (b) Alternative minimum tax. If the tax under subdivision (a) of this 17 section is less than any of the following amounts, the tax shall be the 18 larger of the following amounts: 19 (1) For taxable years beginning before two thousand eleven, except in 20 the case of a corporation organized under the laws of a country other 21 than the United States, one-tenth of a mill upon each dollar of taxable 22 assets, or the portion thereof allocated to the city. For taxable years 23 beginning after two thousand ten, except in the case of a taxpayer 24 described in clause (i), (ii), or (iii) of this subparagraph, one-tenth 25 of a mill upon each dollar of taxable assets, or the portion thereof 26 allocated to the city. 27 (i) In the case of a taxpayer whose net worth ratio is less than five 28 percent but greater than or equal to four percent and whose total assets 29 are comprised of thirty-three percent or more of mortgages, one-twenty- 30 fifth of a mill upon each dollar of taxable assets, or the portion ther- 31 eof allocated to the city. 32 (ii) In the case of a taxpayer whose net worth ratio is less than four 33 percent and whose total assets are comprised of thirty-three percent or 34 more of mortgages, one-fiftieth of a mill upon each dollar of taxable 35 assets, or the portion thereof allocated to the city. 36 (iii) A taxpayer, whether or not a qualified institution as defined in 37 subparagraph (B) of paragraph five of subsection (f) of section four 38 hundred six of the federal national housing act, as amended, or as 39 defined in paragraph two of subsection (i) of section thirteen of the 40 federal deposit insurance act, as amended, shall not be subject to the 41 provisions of this paragraph for that portion of the taxable year in 42 which it had outstanding net worth certificates issued in accordance 43 with paragraph five of subsection (f) of section four hundred six of the 44 federal national housing act, as amended, or issued in accordance with 45 subsection (i) of section thirteen of the federal deposit insurance act, 46 as amended. 47 (iv) For the purposes of this part: (A) the term "taxable assets" 48 shall mean the average value of total assets reduced by any amount of 49 money or other property received from or attributable to amounts 50 received from the federal deposit insurance corporation pursuant to 51 subsection (c) of section thirteen of the federal deposit insurance act, 52 as amended, or the federal savings and loan insurance corporation pursu- 53 ant to paragraph one, two, three or four of subsection (f) of section 54 four hundred six of the federal national housing act, as amended. Total 55 assets are those assets which are properly reflected on a balance sheet 56 the income or expenses of which are properly reflected, or would haveS. 8474 572 1 been properly reflected if not fully depreciated or expensed or depreci- 2 ated or expensed to a nominal amount, in the computation of alternative 3 entire net income for the taxable year or in the computation of the 4 eligible net income of the taxpayer's international banking facility for 5 the taxable year. 6 (B) The term "net worth ratio" shall mean the percentage of net worth 7 to assets on the last day of the taxable year. The term "net worth" 8 means the sum of preferred stock, common stock, surplus, capital 9 reserves, undivided profits, mutual capital certificates, reserve for 10 contingencies, reserve for loan losses and reserve for security losses 11 minus assets classified loss. The term "assets" means the sum of mort- 12 gage loans, nonmortgage loans, repossessed assets, real estate held for 13 development or investment or resale, cash, deposits, investment securi- 14 ties, fixed assets and other assets, such as financial futures, goodwill 15 and other intangible assets, minus assets classified loss. In no event 16 shall assets be reduced by reserves for losses. 17 (C) The term "mortgages" shall mean loans secured by real property 18 within or without the state, participations in and securities collater- 19 alized by pools of residential mortgages, whether or not issued or guar- 20 anteed by a United States government agency, and loans secured by stock 21 in a cooperative housing corporation. The percentage of total assets 22 comprised of mortgages shall be an amount equal to the ratio of the 23 average of the four quarterly balances of such mortgages ending within 24 the taxable year, to the average of the four quarterly balances of all 25 assets ending within the taxable year. Such quarterly balances shall be 26 computed in the same manner as the report of condition required for 27 federal deposit insurance corporation or federal savings and loan insur- 28 ance corporation purposes, whether or not such report is required. For 29 taxable periods of less than one year, the taxpayer shall compute such 30 ratio using the number of such quarterly balances ending within such 31 taxable period. 32 (2) For taxable years beginning before two thousand eleven, in the 33 case of a corporation organized under the laws of a country other than 34 the United States, (i) two and six-tenths mills upon each dollar of such 35 part of the taxpayer's issued capital stock on the last day of the taxa- 36 ble year, at its face value, but if such taxpayer has stock without par 37 value, such stock shall be taken at its actual or market value, and not 38 less than five dollars per share, as may be determined by the commis- 39 sioner of finance, or (ii) if the taxpayer does not have issued capital 40 stock, two and six-tenths mills upon each dollar of such part of the 41 amount by which its average total assets exceeds its average total 42 liabilities, as the gross income of such taxpayer derived from business 43 carried on within the city during such taxable year bears to its gross 44 income derived from all business, both within and without the city 45 during said year; except that if the period covered by the return is 46 other than twelve months, the tax shall be prorated on the basis of the 47 number of months or major portions thereof included in the return. For 48 purposes of this paragraph, the term "gross income" shall have the same 49 meaning as it has in the laws of the United States relating to federal 50 income taxes. 51 (3) Three percent of the taxpayer's alternative entire net income, or 52 portion thereof allocated to the city, for the taxable year, or part 53 thereof. 54 (4) One hundred twenty-five dollars. 55 § 11-643.7. Relocation and employment assistance credit. (a) In addi- 56 tion to any other credit allowed by this part, a taxpayer that hasS. 8474 573 1 obtained the certifications required by chapter six-B of title twenty- 2 two of the code of the preceding municipality shall be allowed a credit 3 against the tax imposed by this part. The amount of the credit shall be 4 the amount determined by multiplying five hundred dollars or, in the 5 case of a taxpayer that has obtained pursuant to chapter six-B of such 6 title twenty-two a certification of eligibility dated on or after July 7 first, nineteen hundred ninety-five, one thousand dollars or, in the 8 case of an eligible business that has obtained pursuant to chapter six-B 9 of such title twenty-two a certification of eligibility dated on or 10 after July first, two thousand, for a relocation to eligible premises 11 located within a revitalization area defined in subdivision (n) of 12 section 22-621 of the code of the preceding municipality, three thousand 13 dollars, by the number of eligible aggregate employment shares main- 14 tained by the taxpayer during the taxable year with respect to partic- 15 ular premises to which the taxpayer has relocated; provided, however, 16 with respect to a relocation for which no application for a certificate 17 of eligibility is submitted prior to July first, two thousand three to 18 eligible premises that are not within a revitalization area, if the date 19 of such relocation as determined pursuant to subdivision (j) of section 20 22-621 of the code of the preceding municipality is before July first, 21 nineteen hundred ninety-five, the amount to be multiplied by the number 22 of eligible aggregate employment shares shall be five hundred dollars, 23 and with respect to a relocation for which no application for a certif- 24 icate of eligibility is submitted prior to July first, two thousand 25 three, to eligible premises that are within a revitalization area, if 26 the date of such relocation as determined pursuant to subdivision (j) of 27 such section is before July first, nineteen hundred ninety-five, the 28 amount to be multiplied by the number of eligible aggregate employment 29 shares shall be five hundred dollars, and if the date of such relocation 30 as determined pursuant to subdivision (j) of such section is on or after 31 July first, nineteen hundred ninety-five, and before July first, two 32 thousand, one thousand dollars; provided, however, that no credit shall 33 be allowed for the relocation of any retail activity or hotel services; 34 and provided that in the case of an eligible business that has obtained 35 pursuant to chapter six-B of such title twenty-two certifications of 36 eligibility for more than one relocation, the portion of the total 37 amount of eligible aggregate employment shares to be multiplied by the 38 dollar amount specified in this subdivision for each such certification 39 of a relocation shall be the number of total attributed eligible aggre- 40 gate employment shares determined with respect to such relocation pursu- 41 ant to subdivision (o) of section 22-621 of the code of the preceding 42 municipality. For purposes of this section, the terms "eligible aggre- 43 gate employment shares," "relocate," "retail activity" and "hotel 44 services" shall have the meanings ascribed by section 22-621 of the code 45 of the preceding municipality. 46 (b) The credit allowed under this section with respect to eligible 47 aggregate employment shares maintained with respect to particular prem- 48 ises to which the taxpayer has relocated shall be allowed for the first 49 taxable year during which such eligible aggregate employment shares are 50 maintained with respect to such premises and for any of the twelve 51 succeeding taxable years during which eligible aggregate employment 52 shares are maintained with respect to such premises; provided that the 53 credit allowed for the twelfth succeeding taxable year shall be calcu- 54 lated by multiplying the number of eligible aggregate employment shares 55 maintained with respect to such premises in the twelfth succeeding taxa- 56 ble year by the lesser of one and a fraction the numerator of which isS. 8474 574 1 such number of days in the taxable year of relocation less the number of 2 days the eligible business maintained employment shares in the eligible 3 premises in the taxable year of relocation and the denominator of which 4 is the number of days in such twelfth succeeding taxable year during 5 which such eligible aggregate employment shares are maintained with 6 respect to such premises. Except as provided in subdivision (d) of this 7 section, if the amount of the credit allowable under this section for 8 any taxable year exceeds the tax imposed for such year, the excess may 9 be carried over, in order, to the five immediately succeeding taxable 10 years and, to the extent not previously deductible, may be deducted from 11 the taxpayer's tax for such years. 12 (c) The credit allowable under this section shall be deducted after 13 the credit allowed by section 11-643.8, but prior to the deduction of 14 any other credit allowed by this part. 15 (d) In the case of a taxpayer that has obtained a certification of 16 eligibility pursuant to chapter six-B of title twenty-two of the code of 17 the preceding municipality dated on or after July first, two thousand 18 for a relocation to eligible premises located within the revitalization 19 area defined in subdivision (n) of section 22-621 of the code of the 20 preceding municipality, the credits allowed under this section, or in 21 the case of a taxpayer that has relocated more than once, the portion of 22 such credits attributed to such certification of eligibility pursuant to 23 subdivision (a) of this section, against the tax imposed by this chapter 24 for the taxable year of such relocation and for the four taxable years 25 immediately succeeding the taxable year of such relocation, shall be 26 deemed to be overpayments of tax by the taxpayer to be credited or 27 refunded, without interest, in accordance with the provisions of section 28 11-677 of this chapter. For such taxable years, such credits or portions 29 thereof may not be carried over to any succeeding taxable year; 30 provided, however, that this subdivision shall not apply to any relo- 31 cation for which an application for a certification of eligibility was 32 not submitted prior to July first, two thousand three, unless the date 33 of such relocation is on or after July first, two thousand. 34 § 11-643.8 Credit relating to certain distributions from partnerships. 35 (a) If a banking corporation is a partner in an unincorporated business 36 taxable under chapter five of this title, and is required to include in 37 entire net income its distributive share of income, gain, loss and 38 deductions of, or guaranteed payments from, such unincorporated busi- 39 ness, such banking corporation shall be allowed a credit against the tax 40 imposed by this part equal to the lesser of the amounts determined in 41 paragraphs one and two of this subdivision: 42 (1) The amount determined in this paragraph is the product of (A) the 43 sum of (i) the tax imposed by chapter five of this title on the unincor- 44 porated business for its taxable year ending within or with the taxable 45 year of the banking corporation and paid by the unincorporated business 46 and (ii) the amount of any credit or credits taken by the unincorporated 47 business under section 11-503 of this title, except the credit allowed 48 by subdivision (b) of such section, for its taxable year ending within 49 or with the taxable year of the banking corporation, to the extent that 50 such credits do not reduce such unincorporated business's tax below 51 zero, and (B) a fraction, the numerator of which is the net total of the 52 banking corporation's distributive share of income, gain, loss and 53 deductions of, and guaranteed payments from, the unincorporated business 54 for such taxable year and the denominator of which is the sum, for such 55 taxable year, of the net total distributive shares of income, gain, loss 56 and deductions of, and guaranteed payments to, all partners of the unin-S. 8474 575 1 corporated business for whom or which such net total, as separately 2 determined for each partner, is greater than zero. 3 (2) The amount determined in this paragraph is the product of (A) the 4 excess of (i) the basic tax computed pursuant to subdivision (a) of 5 section 11-643.5 of this part, without allowance of any credits allowed 6 by this part, over (ii) the basic tax so computed, determined as if the 7 banking corporation had no such distributive share or guaranteed 8 payments with respect to the unincorporated business, and (B) a frac- 9 tion, the numerator of which is four and the denominator of which is 10 nine, provided, however, that the amounts computed in clauses (i) and 11 (ii) of this paragraph shall be computed with the following modifica- 12 tions: 13 (I) if, prior to taking into account any distributive share or guaran- 14 teed payments from any unincorporated business, the entire net income of 15 the partner is less than zero, such entire net income shall be treated 16 as zero; and 17 (II) if such partner's net total distributive share of income, gain, 18 loss and deductions of, and guaranteed payments from any unincorporated 19 business is less than zero, such net total shall be treated as zero. 20 The amount determined in this paragraph shall not be less than zero. 21 (b) (1) Notwithstanding anything to the contrary in subdivision (a) of 22 this section, in the case of a banking corporation that, before the 23 application of this section or any other credit allowed by this part, is 24 liable for the basic tax computed under subdivision (a) of section 25 11-643.5 of this part, the credit or the sum of the credits that may be 26 taken by such banking corporation for a taxable year under this section 27 with respect to an unincorporated business or unincorporated businesses 28 in which it is a partner shall not exceed the tax so computed, without 29 allowance of any credits allowed by this part, multiplied by a fraction 30 the numerator of which is four and the denominator of which is nine. If 31 the credit allowed under this subdivision or the sum of such credits 32 exceeds the product of such tax and such fraction, the amount of the 33 excess may be carried forward, in order, to each of the seven immediate- 34 ly succeeding taxable years and, to the extent not previously taken, 35 shall be allowed as a credit in each of such years. In applying such 36 provisions, the credit determined for the taxable year under subdivision 37 (a) of this section shall be taken before taking any credit carryforward 38 pursuant to this paragraph and the credit carryforward attributable to 39 the earliest taxable year shall be taken before taking a credit carry- 40 forward attributable to a subsequent taxable year. 41 (2) Notwithstanding anything to the contrary in subdivision (a) of 42 this section, in the case of a banking corporation that, before the 43 application of this section or any other credit allowed by this part, is 44 liable for the alternative minimum tax on alternative entire net income 45 under paragraph three of subdivision (b) of section 11-643.5 of this 46 part, the maximum credit that may be taken in any taxable year is the 47 amount that will reduce the tax so computed, without allowance of any 48 credits allowed by this part, to zero. For purposes of this paragraph 49 each dollar of credit shall be applied so as to reduce such tax by 50 seventy-five cents. If the amount of credit allowed under this section 51 or the sum of such credits exceeds the amount that may be taken against 52 such tax, the amount of the excess may be carried forward, in order, to 53 each of the seven immediately succeeding taxable years and, to the 54 extent not previously taken, shall be allowed as a credit in each of 55 such years. In applying such provisions, the credit determined for the 56 taxable year under subdivision (a) of this section shall be taken beforeS. 8474 576 1 taking any credit carryforward pursuant to this subdivision and the 2 credit carryforward attributable to the earliest taxable year shall be 3 taken before taking a credit carryforward attributable to a subsequent 4 taxable year. 5 (3) No credit under this section may be taken in a taxable year by a 6 taxpayer that, in the absence of such credit, would be liable for the 7 tax computed on the basis of taxable assets under paragraph one of this 8 subdivision, the tax computed on the basis of issued capital stock under 9 paragraph two of this subdivision or the fixed-dollar minimum tax under 10 paragraph four of subdivision (b) of section 11-643.5 of this part. 11 (c) For banking corporations that file a report on a combined basis 12 pursuant to subdivision (f) of section 11-646 of this part, the credit 13 allowed by this section shall be computed as if the combined group were 14 the partner in each unincorporated business from which any of the 15 members of such group had a distributive share or guaranteed payments, 16 provided, however, if more than one member of the combined group is a 17 partner in the same unincorporated business, for purposes of the calcu- 18 lation required in paragraph one of subdivision (a) of this section, the 19 numerator of the fraction described in subparagraph (B) of such para- 20 graph one shall be the sum of the net total distributive shares of 21 income, gain, loss and deductions of, and guaranteed payments from, the 22 unincorporated business of all of the partners of the unincorporated 23 business within the combined group for which such net total, as sepa- 24 rately determined for each partner, is greater than zero, and the denom- 25 inator of such fraction shall be the sum of the net total distributive 26 shares of income, gain, loss and deductions of, and guaranteed payments 27 from, the unincorporated business of all partners in the unincorporated 28 business for whom or which such net total, as separately determined for 29 each partner, is greater than zero. 30 (d) The credit allowed by this section shall not be allowed to a part- 31 ner in an unincorporated business with respect to any tax paid by the 32 unincorporated business under chapter five of this title for any taxable 33 year beginning before July first, nineteen hundred ninety-four. 34 (e) Notwithstanding any other provisions of this part, the credit 35 allowable under this section shall be taken prior to the taking of any 36 other credit allowed by this part. Notwithstanding any other provisions 37 of this part, the application of this section shall not change the basis 38 on which the taxpayer's tax is computed under subdivision (a) or (b) of 39 section 11-643.5 of this part. 40 § 11-644 Declarations of estimated tax. (a) Requirements of declara- 41 tion. Every taxpayer subject to the tax imposed by subdivision (a) of 42 section 11-639 of this part shall make a declaration of its estimated 43 tax for the current taxable year, containing such information as the 44 commissioner of finance may prescribe by regulations or instructions, if 45 such estimated tax can reasonably be expected to exceed one thousand 46 dollars. 47 (b) Definition of estimated tax. The term "estimated tax" means the 48 amount which a taxpayer estimates to be the tax imposed by subdivision 49 (a) of section 11-639 of this part for the current taxable year, less 50 the amount which it estimates to be the sum of any credits allowable 51 against the tax. 52 (c) Time for filing declaration. A declaration of estimated tax shall 53 be filed on or before June fifteenth of the current taxable year in the 54 case of a taxpayer which reports on the basis of a calendar year, except 55 that if the requirements of subdivision (a) of this section are first 56 met:S. 8474 577 1 (1) after May thirty-first and before September first of such current 2 taxable year, the declaration shall be filed on or before September 3 fifteenth, or 4 (2) after August thirty-first and before December first of such 5 current taxable year, the declaration shall be filed on or before Decem- 6 ber fifteenth. 7 (d) Amendments of declaration. A taxpayer may amend a declaration 8 under regulations of the commissioner of finance. 9 (e) Return as declaration. If, on or before February fifteenth of the 10 succeeding year in the case of a taxpayer whose taxable year is a calen- 11 dar year, a taxpayer files its return for the year for which the decla- 12 ration is required, and pays therewith the balance, if any, of the full 13 amount of the tax shown to be due on the return: 14 (1) such return shall be considered as its declaration if no declara- 15 tion was required to be filed during the taxable year for which the tax 16 was imposed, but is otherwise required to be filed on or before December 17 fifteenth pursuant to paragraph two of subdivision (c) of this section, 18 and 19 (2) such return shall be considered as the amendment permitted by 20 subdivision (d) of this section to be filed on or before December 21 fifteenth if the tax shown on the return is greater than the estimated 22 tax shown on a declaration previously made. 23 (f) Fiscal year. This section shall apply to taxable years of twelve 24 months other than a calendar year by the substitutions of the months of 25 such fiscal year for the corresponding months specified in this section. 26 (g) Short taxable period. If the taxable period for which a tax is 27 imposed by subdivision (a) of section 11-639 of this part is less than 28 twelve months, every taxpayer required to make a declaration of esti- 29 mated tax for such taxable period shall make such a declaration in 30 accordance with regulations of the commissioner of finance. 31 (h) Extension of time. The commissioner of finance may grant a 32 reasonable extension of time, not to exceed three months, for the filing 33 of any declaration required pursuant to this section, on such terms and 34 conditions as the commissioner may require. 35 § 11-645 Payments of estimated tax. (a) Every taxpayer subject to 36 the tax imposed by section 11-639 of this part shall pay an amount equal 37 to twenty-five percent of the preceding year's tax, if such preceding 38 year's tax exceeded one thousand dollars. Such amount shall be paid 39 with the return required to be filed for the preceding taxable year or 40 with an application for the extension of the time for filing such 41 return. Provided, however, that for the first taxable year or period 42 commencing on or after January first, nineteen hundred seventy-three, 43 the installment required by this subdivision shall be paid with the 44 return required to be filed for the tax imposed pursuant to part one or 45 two of this subchapter three computed on the basis of net income for the 46 calendar year nineteen hundred seventy-two, or under the minimum tax 47 provisions of section 11-612 of this subchapter. 48 (b) Other installments. The estimated tax for each taxable year with 49 respect to which a declaration of estimated tax is required to be filed 50 under this part shall be paid, in the case of a taxpayer which reports 51 on the basis of a calendar year, as follows: 52 (1) If the declaration is filed on or before June fifteenth, the esti- 53 mated tax shown thereon, after applying thereto the amount, if any, paid 54 during the same taxable year pursuant to subdivision (a) of this 55 section, shall be paid in three equal installments. One of such 56 installments shall be paid at the time of the filing of the declaration,S. 8474 578 1 one shall be paid on the following September fifteenth, and one on the 2 following December fifteenth. 3 (2) If the declaration is filed after June fifteenth and not after 4 September fifteenth of such taxable year, and is not required to be 5 filed on or before June fifteenth of such year, the estimated tax shown 6 on such declaration, after applying thereto the amount, if any, paid 7 during the same taxable year pursuant to subdivision (a) of this 8 section, shall be paid in two equal installments. One of such install- 9 ments shall be paid at the time of the filing of the declaration and one 10 shall be paid on the following December fifteenth. 11 (3) If the declaration is filed after September fifteenth of such 12 taxable year, and is not required to be filed on or before September 13 fifteenth of such year, the estimated tax shown on such declaration, 14 after applying thereto the amount, if any, paid in respect of such year 15 pursuant to subdivision (a) of this section, shall be paid in full at 16 the time of the filing of the declaration. 17 (4) If the declaration is filed after the time prescribed therefor, 18 or after the expiration of any extension of time therefor, paragraphs 19 two and three of this subdivision shall not apply and there shall be 20 paid at the time of such filing all installments of estimated tax paya- 21 ble at or before such time, and the remaining installments shall be paid 22 at the times at which, and in the amounts in which, they would have been 23 payable if the declaration had been filed when due. 24 (c) Amendments of declarations. If any amendment of a declaration is 25 filed, the remaining installments, if any, shall be ratably increased or 26 decreased, as the case may be, to reflect any increase or decrease in 27 the estimated tax by reason of such amendment, and if any amendment is 28 made after September fifteenth of the taxable year, any increase in the 29 estimated tax by reason thereof shall be paid at the time of making such 30 amendment. 31 (d) Application of installments based on the preceding year's tax. 32 Any amount paid pursuant to subdivision (a) of this section shall be 33 applied as a first installment against the estimated tax of the taxpayer 34 for the taxable year shown on the declaration required to be filed 35 pursuant to section 11-644 of this part, or if no declaration of esti- 36 mated tax is required to be filed by the taxpayer pursuant to such 37 section, any such amount shall be considered a payment on account of the 38 tax shown on the return required to be filed by the taxpayer for such 39 taxable year. 40 (e) Interest on certain installments based on the preceding year's 41 tax. Notwithstanding the provisions of section 11-679 of this chapter or 42 of section three-a of the general municipal law, if an amount paid 43 pursuant to subdivision (a) of this section exceeds the tax shown on the 44 return required to be filed by the taxpayer for the taxable year during 45 which the amount was paid, interest shall be allowed and paid on the 46 amount by which the amount so paid pursuant to such subdivision exceeds 47 such tax, at the overpayment rate set by the commissioner of finance 48 pursuant to section 11-687 of this chapter, or, if no rate is set, at 49 the rate of six percent per annum from the date of payment of the amount 50 so paid pursuant to such subdivision to the fifteenth day of the third 51 month following the close of the taxable year, provided, however, that 52 no interest shall be allowed or paid under this subdivision if the 53 amount thereof is less than one dollar. 54 (f) The preceding year's tax defined. As used in this section, "the 55 preceding year's tax" means the tax imposed upon the taxpayer by subdi- 56 vision (a) of section 11-639 of this part for the preceding taxableS. 8474 579 1 year, or, for purposes of computing the first installment of estimated 2 tax when an application has been filed for extension of the time for 3 filing the return required to be filed for such preceding taxable year, 4 the amount properly estimated pursuant to paragraph one of subdivision b 5 of section 11-647 of this part as the tax imposed upon the taxpayer for 6 such taxable year. Provided, however, that for the first taxable year 7 or period commencing on or after January first, nineteen hundred seven- 8 ty-three, the term "preceding year's tax" as used in this section shall 9 mean the tax imposed upon the taxpayer pursuant to part one or two of 10 this subchapter three which was computed on the basis of net income for 11 the calendar year nineteen hundred seventy-two, or under the minimum tax 12 provisions of subdivision two of section 11-612 of this subchapter, or 13 for purposes of computing the first installment of estimated tax for 14 such first taxable year or period when an application has been filed for 15 an extension of the time for filing the return required to be filed for 16 the tax imposed pursuant to part one or two of this subchapter three 17 which was computed on the basis of net income for the calendar year 18 nineteen hundred seventy-two, or under the minimum tax provisions of 19 section 11-612 of this subchapter, the amount of tax properly estimated 20 for purposes of such part one or two pursuant to section 11-635 of this 21 subchapter. 22 (g) Application to short taxable period. This section shall apply to 23 a taxable period of less than twelve months in accordance with regu- 24 lations of the commissioner of finance. 25 (h) Fiscal year. The provisions of this section shall apply to taxa- 26 ble years of twelve months other than a calendar year by the substi- 27 tution of the months of such fiscal year for the corresponding months 28 specified in such provisions. 29 (i) Extension of time. The commissioner of finance may grant a 30 reasonable extension of time, not to exceed six months, for payment of 31 any installment of estimated tax required pursuant to this section, on 32 such terms and conditions as the commissioner may require, including the 33 furnishing of a bond or other security by the taxpayer in an amount not 34 exceeding twice the amount for which any extension of time for payment 35 is granted, provided, however that interest at the underpayment rate set 36 by the commissioner of finance pursuant to section 11-687 of this chap- 37 ter, or, if no rate is set, at the rate of seven and one-half percent 38 per annum for the period of the extension shall be charged and collected 39 on the amount for which any extension of time for payment is granted 40 under this subdivision. 41 (j) Payment of installments in advance. A taxpayer may elect to pay 42 any installment of estimated tax prior to the date prescribed in this 43 section for payment thereof. 44 § 11-646 Returns. (a) Every taxpayer shall annually on or before 45 the fifteenth day of the third month following the close of each of its 46 taxable years transmit to the commissioner of finance a return in a form 47 prescribed by the commissioner setting forth such information as the 48 commissioner of finance may prescribe and every taxpayer which ceases to 49 exercise its franchise in the city or to be subject to the tax imposed 50 by this part shall transmit to the commissioner of finance a return on 51 the date of such cessation or at such other time as the commissioner of 52 finance may require covering each year or period for which no return was 53 therefore filed. 54 (b) Every taxpayer shall also transmit such other returns and such 55 facts and information as the commissioner of finance may require in the 56 administration of this part.S. 8474 580 1 (c) The commissioner of finance may grant a reasonable extension of 2 time for filing returns whenever good cause exists. An automatic exten- 3 sion of six months for the filing of its annual return shall be allowed 4 any taxpayer, if within the time prescribed by subdivision (a) of this 5 section, such taxpayer files with the commissioner of finance an appli- 6 cation for extension in such form as said commissioner of finance may 7 prescribe by regulation and pays on or before the date of such filing 8 the amount properly estimated as its tax. 9 (d) Every return shall have annexed thereto a certification by the 10 president, vice president, treasurer, assistant treasurer, chief 11 accounting officer or any other officer of the taxpayer duly authorized 12 so to act to the effect that the statements contained therein are true. 13 The fact that an individual's name is signed on a certification of the 14 return shall be prima facie evidence that such individual is authorized 15 to sign and certify the return on behalf of the corporation. 16 (e) If the amount of taxable income, alternative minimum taxable 17 income or other basis of tax for any year of any taxpayer, or of any 18 shareholder of any taxpayer that has elected to be taxed under subchap- 19 ter s of chapter one of the internal revenue code or of any shareholder 20 of any taxpayer with respect to which an election has been made to be 21 treated as a qualified subchapter s subsidiary under paragraph three of 22 subsection (b) of section thirteen hundred sixty-one of the internal 23 revenue code as returned to the United States treasury department or the 24 New York state commissioner of taxation and finance is changed or 25 corrected by the commissioner of internal revenue or other officer of 26 the United States or the New York state commissioner of taxation and 27 finance or other competent authority, or if a taxpayer or such share- 28 holder of a taxpayer, pursuant to subsection (d) of section sixty-two 29 hundred thirteen of the internal revenue code, executes a notice of 30 waiver of the restrictions provided in subsection (a) of said section, 31 or if a taxpayer or such shareholder of a taxpayer, pursuant to 32 subsection (f) of section one thousand eighty-one of the tax law, 33 executes a notice of waiver of the restrictions provided in subsection 34 (c) of such section, such taxpayer shall report such changed or 35 corrected taxable income, alternative minimum taxable income or other 36 basis of tax or such execution of such notice of waiver and the changes 37 or corrections of the taxpayer's federal or New York state taxable 38 income, alternative minimum taxable income or other basis of tax on 39 which it is based, within ninety days, or one hundred twenty days, in 40 the case of a taxpayer making a combined return under this subchapter 41 for such year, after such execution or the final determination of such 42 change or correction, or as required by the commissioner of finance, and 43 shall concede the accuracy of such determination or state wherein it is 44 erroneous. The allowance of a tentative carryback adjustment based upon 45 a net capital loss carryback pursuant to section sixty-four hundred 46 eleven of the internal revenue code, shall be treated as a final deter- 47 mination for purposes of this subdivision. Any taxpayer filing an 48 amended return with such department shall also file within ninety days, 49 or one hundred twenty days, in the case of a taxpayer making a combined 50 return under this subchapter for such year, thereafter an amended return 51 with the commissioner of finance which shall contain such information as 52 the commissioner shall require. 53 (f) (1) For purposes of this subdivision, the term "bank holding 54 company" means any corporation subject to article three-A of the banking 55 law, or registered under the federal bank holding company act of nine- 56 teen hundred fifty-six, as amended, or registered as a savings and loanS. 8474 581 1 holding company, but excluding a diversified savings and loan holding 2 company, under the federal national housing act, as amended. 3 (2) (i) Any banking corporation or bank holding company which is doing 4 business in the city in a corporate or organized capacity, and 5 (A) which owns or controls, directly or indirectly, eighty percent or 6 more of the voting stock of one or more banking corporations or bank 7 holding companies, or 8 (B) whose voting stock is eighty percent or more owned or controlled, 9 directly or indirectly, by a banking corporation or a bank holding 10 company, 11 shall make a return on a combined basis under this part covering 12 itself and such corporations described in clause (A) or (B) of this 13 subparagraph and shall set forth such information as the commissioner of 14 finance may require unless the taxpayer or the commissioner of finance 15 shows that the inclusion of such a corporation in the combined return 16 fails to properly reflect the tax liability of such corporation under 17 this part. Provided, however, that no banking corporation or bank hold- 18 ing company not a taxpayer shall be subject to the requirements of this 19 subparagraph unless the commissioner of finance deems that the applica- 20 tion of such requirements is necessary in order to properly reflect the 21 tax liability under this part, because of intercompany transactions or 22 some agreement, understanding, arrangement or transaction of the type 23 referred to in subdivision (g) of this section. 24 (ii) In the discretion of the commissioner of finance, any banking 25 corporation or bank holding company which is doing business in the city 26 in a corporate or organized capacity, and 27 (A) which owns or controls, directly or indirectly, sixty-five percent 28 or more of the voting stock of one or more banking corporations or bank 29 holding companies, or 30 (B) whose voting stock is sixty-five percent or more owned or 31 controlled, directly or indirectly, by a banking corporation or a bank 32 holding company, may be required or permitted to make a return on a 33 combined basis under this part covering itself and such corporations 34 described in clause (A) or (B) of this subparagraph and shall set forth 35 such information as the commissioner of finance may require; provided, 36 however, that no combined return shall be required or permitted unless 37 the commissioner of finance deems such report necessary in order to 38 properly reflect the tax liability under this part of any one or more of 39 such banking corporations or bank holding companies. 40 (iii) In the discretion of the commissioner of finance, banking corpo- 41 rations or bank holding companies which are each sixty-five percent or 42 more owned or controlled, directly or indirectly, by the same interest 43 may be permitted or required to make a return on a combined basis under 44 this part and shall set forth such information as the commissioner of 45 finance may require, if at least one such banking corporation or bank 46 holding company is doing business in the city in a corporate or organ- 47 ized capacity. No combined return shall be required or permitted unless 48 the commissioner of finance deems such report necessary in order to 49 properly reflect the tax liability under this part of any one or more of 50 such banking corporations or bank holding companies. 51 (iv) (A) Notwithstanding any provision of this paragraph, any bank 52 holding company exercising its corporate franchise or doing business in 53 the city may make a return on a combined basis without seeking the 54 permission of the commissioner with any banking corporation exercising 55 its corporate franchise or doing business in the city in a corporate or 56 organized capacity sixty-five percent or more of whose voting stock isS. 8474 582 1 owned or controlled, directly or indirectly, by such bank holding compa- 2 ny, for the first taxable year beginning on or after January first, two 3 thousand and before January first, two thousand twenty during which such 4 bank holding company registers for the first time under the federal bank 5 holding company act, as amended, and also elects to be a financial hold- 6 ing company. In addition, for each subsequent taxable year beginning 7 after January first, two thousand and before January first, two thousand 8 twenty, any such bank holding company may file on a combined basis with- 9 out seeking the permission of the commissioner with any banking corpo- 10 ration that is exercising its corporate franchise or doing business in 11 the city and sixty-five percent or more of whose voting stock is owned 12 or controlled, directly or indirectly, by such bank holding company if 13 either such banking corporation is exercising its corporate franchise or 14 doing business in the city in a corporate or organized capacity for the 15 first time during such subsequent taxable year, or sixty-five percent or 16 more of the voting stock of such banking corporation is owned or 17 controlled, directly or indirectly, by such bank holding company for the 18 first time during such subsequent taxable year. Provided however, for 19 each subsequent taxable year beginning after January first, two thousand 20 and before January first, two thousand twenty, a banking corporation 21 described in this clause which filed on a combined basis with any such 22 bank holding company in a previous taxable year, must continue to file 23 on a combined basis with such bank holding company if such banking 24 corporation, during such subsequent taxable year, continues to exercise 25 its corporate franchise or do business in the city in a corporate or 26 organized capacity and sixty-five percent or more of such banking corpo- 27 ration's voting stock continues to be owned or controlled, directly or 28 indirectly, by such bank holding company, unless the permission of the 29 commissioner has been obtained to file on a separate basis for such 30 subsequent taxable year. Provided further, however, for each subsequent 31 taxable year beginning after January first, two thousand and before 32 January first, two thousand twenty, a banking corporation described in 33 this clause which did not file on a combined basis with any such bank 34 holding company in a previous taxable year, may not file on a combined 35 basis with such bank holding company during any such subsequent taxable 36 year unless the permission of the commissioner has been obtained to file 37 on a combined basis for such subsequent taxable year. 38 (B) Notwithstanding any provision of this paragraph other than clause 39 (A) of this subparagraph, the commissioner may not require a bank hold- 40 ing company which, during a taxable year beginning on or after January 41 first, two thousand and before January first, two thousand twenty, 42 registers for the first time during such taxable year under the federal 43 bank holding company act, as amended, and also elects to be a financial 44 holding company, to make a return on a combined basis for any taxable 45 year beginning on or after January first, two thousand and before Janu- 46 ary first, two thousand twenty with a banking corporation sixty-five 47 percent or more of whose voting stock is owned or controlled, directly 48 or indirectly, by such bank holding company. 49 (v)(A) For purposes of this subparagraph, the term "closest control- 50 ling stockholder" means the corporation that indirectly owns or controls 51 over fifty percent of the voting stock of a captive REIT or captive RIC, 52 is subject to tax under this subchapter or otherwise required to be 53 included in a combined return under this chapter and is the fewest tiers 54 of corporations away in the ownership structure from the captive REIT or 55 captive RIC. The commissioner is authorized to prescribe by regulationS. 8474 583 1 or published guidance the criteria for determining the closest control- 2 ling stockholder. 3 (B) A captive REIT or a captive RIC must be included in a combined 4 return with the banking corporation or bank holding company that direct- 5 ly owns or controls over fifty percent of the voting stock of the 6 captive REIT or captive RIC if that banking corporation or bank holding 7 company is subject to tax or required to be included in a combined 8 return under this subchapter. 9 (C) If over fifty percent of the voting stock of a captive REIT or 10 captive RIC is not directly owned or controlled by a banking corporation 11 or bank holding company that is subject to tax or required to be 12 included in a combined return under this subchapter, then the captive 13 REIT or captive RIC must be included in a combined return with the 14 corporation that is the closest controlling stockholder of the captive 15 REIT or captive RIC. If the closest controlling stockholder of the 16 captive REIT or captive RIC is a banking corporation or bank holding 17 company that is subject to tax or otherwise required to be included in a 18 combined return under this subchapter, then the captive REIT or captive 19 RIC must be included in a combined return under this subchapter. 20 (D) If the corporation which directly owns or controls the voting 21 stock of the captive REIT or captive RIC is described in subparagraph 22 (ii) of paragraph four of this subdivision as a corporation not permit- 23 ted to make a combined return, then the provisions in clause (C) of this 24 subparagraph must be applied to determine the corporation in whose 25 combined return the captive REIT or captive RIC should be included. If, 26 under clause (C) of this subparagraph, the corporation that is the clos- 27 est controlling stockholder of the captive REIT or captive RIC is 28 described in subparagraph (ii) or (iv) of paragraph four of this subdi- 29 vision as a corporation not permitted to make a combined return, then 30 that corporation is deemed to not be in the ownership structure of the 31 captive REIT or captive RIC, and the closest controlling stockholder 32 will be determined without regard to that corporation. 33 (E) If a captive REIT owns the stock of a qualified REIT subsidiary, 34 as defined in paragraph two of subsection (i) of section eight hundred 35 fifty-six of the internal revenue code, then the qualified REIT subsid- 36 iary must be included in any combined return required to be made by the 37 captive REIT that owns its stock. 38 (F) If a captive REIT or a captive RIC is required under this subpara- 39 graph to be included in a combined return with another corporation, and 40 that other corporation is required to be included in a combined return 41 with another corporation under other provisions of this subdivision, the 42 captive REIT or captive RIC must be included in that combined return 43 with those corporations. 44 (G) If the banking corporation or bank holding company that directly 45 or indirectly owns or controls over fifty percent of the voting stock of 46 the captive REIT or captive RIC and is the closest controlling stock- 47 holder of the captive REIT or captive RIC is a member of an affiliated 48 group (1) that does not include any corporation that is engaged in a 49 business that a subsidiary of a bank holding company would not be 50 permitted to engage in, unless such business is de minimis, and (2) 51 whose members own assets the combined average value of which does not 52 exceed eight billion dollars, then the captive REIT or captive RIC must 53 not be included in a combined return under this subchapter. In that 54 instance, the captive REIT or captive RIC is subject to the provisions 55 of subdivision seven or eight of section 11-603 of this chapter. The 56 term "affiliated group" means "affiliated group" as defined in sectionS. 8474 584 1 fifteen hundred four of the internal revenue code, but without regard to 2 the exceptions provided for in subsection (b) of such section. 3 (vi) For taxable years beginning on or after January first two thou- 4 sand eleven, a banking corporation doing business in the city solely 5 because it meets one or more of the tests in subparagraphs (i) through 6 (v) of paragraph one of subdivision (c) of section 11-639 of this chap- 7 ter, referred to in this subparagraph as the "credit card bank", will 8 not be included in a combined return pursuant to subparagraph (i) of 9 this paragraph with another banking corporation or bank holding company 10 which is doing business in the city unless the credit card bank or the 11 commissioner shows that the inclusion of the credit card bank in the 12 combined return is necessary to properly reflect the tax liability of 13 the credit card bank, the banking corporation or bank holding company 14 under this subchapter. However, any banking corporation that meets one 15 or more of the tests in subparagraphs (i) through (v) of paragraph one 16 of subsection (c) of section 11-639 of this chapter and was included in 17 a combined return for its last taxable year beginning before January 18 first, two thousand eleven may continue to be included in a combined 19 return for future taxable years, provided that once that banking corpo- 20 ration has been included in a combined return for any taxable year 21 beginning on or after January first, two thousand eleven, it must 22 continue to be included in a combined return until it obtains the 23 consent of the commissioner to cease being included in a combined return 24 because the combined return no longer properly reflects the tax liabil- 25 ity under this subchapter of any of the corporations included in the 26 combined return. Further, the credit card bank will be included in a 27 combined return with (A) any banking corporation not subject to tax 28 under this subchapter sixty-five percent or more of whose voting stock 29 is owned or controlled, directly or indirectly, by the credit card bank, 30 or (B) any banking corporation or bank holding company not subject to 31 tax under this subchapter which owns or controls, directly or indirect- 32 ly, sixty-five percent or more of the voting stock of the credit card 33 bank, or (C) any banking corporation not subject to tax under this 34 subchapter sixty-five percent or more of the voting stock of which is 35 owned or controlled, directly or indirectly, by the same corporation or 36 corporations that own or control, directly or indirectly, sixty-five 37 percent or more of the voting stock of the credit card bank, if the 38 corporation or corporations described in clauses (A), (B) and (C) of 39 this subparagraph provide services for or support to the credit card 40 bank's operations, unless the credit card bank or the commissioner shows 41 that the inclusion of any of those corporations in the combined return 42 fails to properly reflect the tax liability of the credit card bank. For 43 purposes of this subparagraph, services for or support to the credit 44 card bank's operations include such activities as billing, credit inves- 45 tigation and reporting, marketing, research, advertising, mailing, 46 customer service, information technology, lending and financing 47 services, and communications services, but will not include accounting, 48 legal or personnel services. 49 (3) (i) In the case of a combined return, the tax shall be measured by 50 the combined entire net income, combined alternative entire net income 51 or combined assets of all the corporations included in the return, 52 including any captive REIT or captive RIC. The allocation percentage 53 shall be computed based on the combined factors with respect to all the 54 corporations included in the combined return. In computing combined 55 entire net income and alternative entire net income intercorporate divi- 56 dends and all other intercorporate transactions shall be eliminated andS. 8474 585 1 in computing combined assets intercorporate stockholdings and intercor- 2 porate bills, notes and accounts receivable and payable and other inter- 3 corporate indebtedness shall be eliminated. 4 (ii) In the case of a captive REIT required under this subdivision to 5 be included in a combined return, "entire net income" means "real estate 6 investment trust taxable income" as defined in paragraph two of subdivi- 7 sion (b) of section eight hundred fifty-seven, as modified by section 8 eight hundred fifty-eight, of the internal revenue code, plus the amount 9 taxable under paragraph three of subdivision (b) of section eight 10 hundred fifty-seven of that code, subject to the modifications required 11 by section 11-641 of this chapter. In the case of a captive RIC required 12 under this subdivision to be included in a combined return, "entire net 13 income" means "investment company taxable income" as defined in para- 14 graph two of subdivision (b) of section eight hundred fifty-two, as 15 modified by section eight hundred fifty-five, of the internal revenue 16 code, plus the amount taxable under paragraph three of subdivision (b) 17 of section eight hundred fifty-two of such code, subject to the modifi- 18 cations required by section 11-641 of this chapter. However, the 19 deduction under the internal revenue code for dividends paid by the 20 captive REIT or captive RIC to any member of the affiliated group that 21 includes the corporation that directly or indirectly owns over fifty 22 percent of the voting stock of the captive REIT or captive RIC shall be 23 limited to twenty-five percent for taxable years beginning on or after 24 January first, two thousand nine and before January first, two thousand 25 eleven and shall not be allowed for taxable years beginning on or after 26 January first, two thousand eleven. The term "affiliated group" means 27 "affiliated group" as defined in section fifteen hundred four of the 28 internal revenue code, but without regard to the exceptions provided for 29 in subsection (b) of such section. 30 (4) (i) In no event shall an item of income or expense of a corpo- 31 ration organized under the laws of a country other than the United 32 States be included in a combined return unless it is includible in 33 entire net income or alternative entire net income, as the case may be, 34 nor shall an asset of such a corporation be included in a combined 35 return unless it is included in taxable assets. 36 (ii) In no event shall a corporation organized under the laws of the 37 United States, this state or any other state, be included in a combined 38 return with a corporation organized under the laws of a country other 39 than the United States. 40 (iii) In no event shall a corporation which has made an election 41 pursuant to subdivision (d) of section 11-640 of this part to be subject 42 to the tax imposed by subchapter two of this chapter be included in a 43 combined return for those taxable years for which it is subject to the 44 tax imposed by subchapter two of this chapter. 45 (5) Tax liability under this part may be deemed to be improperly 46 reflected because of intercompany transactions or some agreement, under- 47 standing, arrangement or transaction referred to in subdivision (g) of 48 this section. 49 (g) In case it shall appear to the commissioner of finance that any 50 agreement, understanding or arrangement exists between the taxpayer and 51 any other corporation or any person or firm, whereby the activity, busi- 52 ness, income or assets of the taxpayer within the city is improperly or 53 inaccurately reflected, the commissioner of finance is authorized and 54 empowered, in his or her discretion and in such manner as he or she may 55 determine, to adjust items of income or deductions in computing entire 56 net income or alternative entire net income and to adjust assets, and toS. 8474 586 1 adjust wages, salaries and other personal service compensation, receipts 2 or deposits in computing any allocation percentage, provided only that 3 entire net income or alternative entire net income be adjusted accord- 4 ingly and that any asset directly traceable to the elimination of any 5 receipt be eliminated from assets so as to accurately determine the tax. 6 If however, in the determination of the commissioner of finance, such 7 adjustments do not, or cannot effectively provide for the accurate 8 determination of the tax, the commissioner of finance shall be author- 9 ized to require the filing of a combined report by the taxpayer and any 10 such other corporations. Where (1) any taxpayer conducts its activity or 11 business under any agreement, arrangement or understanding in such 12 manner as either directly or indirectly to benefit its members or stock- 13 holders, or any of them, or any person or persons directly or indirectly 14 interested in such activity or business, by entering into any trans- 15 action at more or less than a fair price which, but for such agreement, 16 arrangement or understanding, might have been paid or received therefor, 17 or (2) any taxpayer enters into any transaction with another corporation 18 on such terms as to create an improper loss or net income, the commis- 19 sioner of finance may include in the entire net income or alternative 20 entire net income of the taxpayer the fair profits which, but for such 21 agreement, arrangement or understanding, the taxpayer might have derived 22 from such transaction. 23 § 11-647 Payment of tax. (a) To the extent the tax imposed for 24 section 11-639 of this part shall not have been previously paid pursuant 25 to section 11-645 of this part: 26 (1) such tax, or the balance thereof, shall be payable to the commis- 27 sioner of finance in full at the time its return is required to be 28 filed, and 29 (2) such tax, or the balance thereof, imposed on any taxpayer which 30 ceased to exercise its franchise or to be subject to the tax imposed by 31 this part shall be payable to the commissioner of finance at the time 32 the return is required to be filed, provided such tax of a domestic 33 corporation which continues to possess its franchise shall be subject to 34 adjustment as the circumstances may require; all other taxes of any such 35 taxpayer, which pursuant to the provisions of this subdivision would 36 otherwise be payable subsequent to the time such return is required to 37 be filed, shall nevertheless be payable at such time. 38 (b) If the taxpayer, within the time prescribed by subdivision (c) of 39 section 11-646 of this part, shall have applied for an automatic exten- 40 sion of time to file its annual return and shall have paid to the 41 commissioner of finance on or before the date of such application is 42 filed an amount properly estimated as provided by said subdivision the 43 only amount payable in addition to the tax shall be interest at the 44 underpayment rate set by the commissioner of finance pursuant to section 45 11-687 of this chapter, or, if no rate is set, at the rate of seven and 46 one-half percent per annum upon the amount by which the tax, or portion 47 thereof payable on or before the date the return was required to be 48 filed, exceeds the amount so paid, provided that: 49 (1) an amount so paid shall be deemed properly estimated if it is 50 either: (i) not less than ninety per cent of the tax as finally deter- 51 mined, or (ii) not less than the tax shown on the taxpayer's return for 52 the preceding taxable year, if such preceding year was a taxable year of 53 twelve months; and 54 (2) the time when a return is required to be filed shall be determined 55 without regard to any extension of time for filing such return.S. 8474 587 1 (c) The commissioner of finance may grant a reasonable extension of 2 time for payment of any tax imposed by this part under such conditions 3 as the commissioner deems just and proper. 4 SUBCHAPTER 3-A 5 CORPORATE TAX OF 2015 6 Section 11-651 Applicability. 7 11-652 Definitions. 8 11-653 Imposition of tax; exemptions. 9 11-654 Computation of tax. 10 11-654.1 Net operating loss. 11 11-654.2 Receipts allocation. 12 11-654.3 Combined reports. 13 11-655 Reports. 14 11-656 Payment and lien of tax. 15 11-657 Declaration of estimated tax. 16 11-658 Payments on account of estimated tax. 17 11-659 Collection of taxes. 18 11-660 Limitations of time. 19 § 11-651 Applicability. 1. Notwithstanding anything to the contrary in 20 this chapter, this subchapter shall apply to corporations for tax years 21 commencing on or after January first, two thousand fifteen, except that 22 it shall not apply to any corporation that (a) has an election in effect 23 under subsection (a) of section thirteen hundred sixty-two of the inter- 24 nal revenue code, as amended, or (b) is a qualified subchapter S subsid- 25 iary within the meaning of paragraph three of subsection (b) of section 26 thirteen hundred sixty-one of the internal revenue code, as amended, in 27 any tax year commencing on or after such date. Subchapters two and three 28 of this chapter shall not apply to corporations to which this subchapter 29 applies for tax years commencing on or after January first, two thousand 30 fifteen, except to the extent provided in this subchapter and to the 31 extent that the effect of the application of subchapters two and three 32 to tax years commencing prior to January first, two thousand fifteen 33 carries over to tax years commencing on or after January first, two 34 thousand fifteen. 35 2. Each reference in the tax law or this code to subchapters two or 36 three of this chapter, or any of the provisions thereof, shall be deemed 37 a reference also to this subchapter, and any of the applicable 38 provisions thereof, where appropriate and with all necessary modifica- 39 tions. 40 § 11-652 Definitions. 1. (a) The term "corporation" includes (1) an 41 association within the meaning of paragraph three of subsection (a) of 42 section seventy-seven hundred one of the internal revenue code, includ- 43 ing, when applicable, a limited liability company, (2) a joint-stock 44 company or association, (3) a publicly traded partnership treated as a 45 corporation for purposes of the internal revenue code pursuant to 46 section seventy-seven hundred four thereof and (4) any business 47 conducted by a trustee or trustees wherein interest or ownership is 48 evidenced by certificate or other written instrument; 49 (b) (1) Notwithstanding paragraph (a) of this subdivision, an unincor- 50 porated organization that (i) is described in subparagraph one or three 51 of paragraph (a) of this subdivision, (ii) was subject to the provisions 52 of chapter five of this title for its taxable year beginning in nineteen 53 hundred ninety-five, and (iii) made a one-time election not to be treat- 54 ed as a corporation and, instead, to continue to be subject to the 55 provisions of chapter five of this title for its taxable years beginningS. 8474 588 1 in nineteen hundred ninety-six and thereafter, shall continue to be 2 subject to the provisions of chapter five of this title for its taxable 3 years beginning in nineteen hundred ninety-six. 4 (2) An election under this paragraph shall continue to be in effect 5 until revoked by the unincorporated organization. An election under this 6 paragraph shall be revoked by the filing of a return under this subchap- 7 ter for the first taxable year with respect to which such revocation is 8 to be effective. Such return shall be filed on or before the due date, 9 determined with regard to extensions, for filing such return. In no 10 event shall such election or revocation be for a part of a taxable year. 11 (c) Notwithstanding paragraph (a) of this subdivision, a corporation 12 shall not include an entity classified as a partnership for federal 13 income tax purposes. 14 2. The term "subsidiary" means a corporation of which over fifty per 15 centum of the number of shares of stock entitling the holders thereof to 16 vote for the election of directors or trustees is owned by the taxpayer. 17 2-a. The term "taxpayer" means any corporation subject to tax under 18 this subchapter. 19 3. Intentionally omitted. 20 3-a. The term "stock" means an interest in a corporation that is 21 treated as equity for federal income tax purposes. 22 4. (a) The term "investment capital" means investments in stocks that: 23 (i) satisfy the definition of a capital asset under section one thousand 24 two hundred twenty-one of the internal revenue code at all times the 25 taxpayer owned such stocks during the taxable year; (ii) are held by the 26 taxpayer for investment for more than one year; (iii) the dispositions 27 of which are, or would be, treated by the taxpayer as generating long- 28 term capital gains or losses under the internal revenue code; (iv) for 29 stocks acquired on or after January first, two thousand fifteen, at any 30 time after the close of the day in which they are acquired, have never 31 been held for sale to customers in the regular course of business; and 32 (v) before the close of the day on which the stock was acquired, are 33 clearly identified in the taxpayer's records as stock held for invest- 34 ment in the same manner as required under paragraph one of subdivision 35 (a) of section one thousand two hundred thirty-six of the internal 36 revenue code for the stock of a dealer in securities to be eligible for 37 capital gain treatment, whether or not the taxpayer is a dealer of secu- 38 rities subject to section one thousand two hundred thirty-six, provided, 39 however, that for stock acquired prior to October first, two thousand 40 fifteen that was not subject to subdivision (a) of section one thousand 41 two hundred thirty-six of the internal revenue code, such identification 42 in the taxpayer's records must occur before October first, two thousand 43 fifteen. Stock in a corporation that is conducting a unitary business 44 with the taxpayer, stock in a corporation that is included in a combined 45 report with the taxpayer pursuant to the commonly owned group election 46 in subdivision three of section 11-654.3 of this subchapter, and stock 47 issued by the taxpayer shall not constitute investment capital. For 48 purposes of this subdivision, if the taxpayer owns or controls, directly 49 or indirectly, less than twenty percent of the voting power of the stock 50 of a corporation, that corporation will be presumed to be conducting a 51 business that is not unitary with the business of the taxpayer. 52 (b) There shall be deducted from investment capital any liabilities 53 which are directly or indirectly attributable to investment capital. If 54 the amount of those liabilities exceeds the amount of investment capi- 55 tal, the amount of investment capital shall be zero.S. 8474 589 1 (c) Investment capital shall not include any such investments the 2 income from which is excluded from entire net income pursuant to the 3 provisions of paragraph (c-1) of subdivision eight of this section, and 4 that investment capital shall be computed without regard to liabilities 5 directly or indirectly attributable to such investments, but only if air 6 carriers organized in the United States and operating in the foreign 7 country or countries in which the taxpayer has its major base of oper- 8 ations and in which it is organized, resident or headquartered, if not 9 in the same country as its major base of operations, are not subject to 10 any tax based on or measured by capital imposed by such foreign country 11 or countries or any political subdivision thereof, or if taxed, are 12 provided an exemption, equivalent to that provided for herein, from any 13 tax based on or measured by capital imposed by such foreign country or 14 countries and from any such tax imposed by any political subdivision 15 thereof. 16 (d) If a taxpayer acquires stock that is a capital asset under section 17 one thousand two hundred twenty-one of the internal revenue code during 18 the taxable year and owns that stock on the last day of the taxable 19 year, it will be presumed, solely for the purposes of determining wheth- 20 er that stock should be classified as investment capital after it is 21 acquired, that the taxpayer held that stock for more than one year. 22 However, if the taxpayer does not in fact own that stock at the time it 23 actually files its original report for the taxable year in which it 24 acquired the stock, then such presumption shall not apply and the actual 25 period of time during which the taxpayer owned the stock shall be used 26 to determine whether the stock should be classified as investment capi- 27 tal after it is acquired. If the taxpayer relies on such presumption but 28 does not own the stock for more than one year, the taxpayer must 29 increase its total business capital in the immediately succeeding taxa- 30 ble year by the amount included in investment capital for that stock, 31 net of any liabilities attributable to that stock computed as provided 32 in paragraph (b) of this subdivision and must increase its business 33 income in the immediately succeeding taxable year by the amount of 34 income and net gains, but not less than zero, from that stock included 35 in investment income, less any interest deductions directly or indirect- 36 ly attributable to that stock, as provided in subdivision five of this 37 section. 38 (e) When income or gain from a debt obligation or other security 39 cannot be allocated to the city using the business allocation percentage 40 as a result of the United States constitutional principles, the debt 41 obligation or other security will be included in investment capital. 42 5. (a)(i) The term "investment income" means income, including capital 43 gains in excess of capital losses, from investment capital, to the 44 extent included in computing entire net income, less, in the discretion 45 of the commissioner of finance, any interest deductions allowable in 46 computing entire net income which are directly or indirectly attribut- 47 able to investment capital or investment income, provided, however, that 48 in no case shall investment income exceed entire net income. 49 (ii) If the amount of interest deductions subtracted under subpara- 50 graph (i) of this paragraph exceeds investment income, the excess of 51 such amount over investment income must be added back to entire net 52 income. 53 (iii) If the taxpayer's investment income determined without regard to 54 the interest deductions subtracted under subparagraph (i) of this para- 55 graph comprises more than eight percent of the taxpayer's entire net 56 income, investment income determined without regard to such interestS. 8474 590 1 deductions cannot exceed eight percent of the taxpayer's entire net 2 income. 3 (b) In lieu of subtracting from investment income the amount of those 4 interest deductions, the taxpayer may make a revocable election to 5 reduce its total investment income, determined after applying the limi- 6 tation in subparagraph (iii) of paragraph (a) of this subdivision, by 7 forty percent. If the taxpayer makes this election, the taxpayer must 8 also make the elections provided for in paragraphs (b) and (c) of subdi- 9 vision five-a of this section. If the taxpayer subsequently revokes this 10 election, the taxpayer must revoke the elections provided for in para- 11 graphs (b) and (c) of subdivision five-a of this section. A taxpayer 12 that does not make this election because it has no investment capital 13 will not be precluded from making those other elections. 14 (c) Investment income shall not include any amount treated as divi- 15 dends pursuant to section seventy-eight of the internal revenue code. 16 5-a. (a) The term "other exempt income" means the sum of exempt CFC 17 income and exempt unitary corporation dividends. 18 (b) "Exempt CFC income" means (i) except to the extent described in 19 subparagraph (ii) of this paragraph, the income required to be included 20 in the taxpayer's federal gross income pursuant to subsection (a) of 21 section nine hundred fifty-one of the internal revenue code, received 22 from a corporation that is conducting a unitary business with the 23 taxpayer but is not included in a combined report with the taxpayer, and 24 (ii) such income required to be included in the taxpayer's federal gross 25 income pursuant to subsection (a) of such section nine hundred fifty-one 26 of the internal revenue code by reason of subsection (a) of section nine 27 hundred sixty-five of the internal revenue code, as adjusted by 28 subsection (b) of section nine hundred sixty-five of the internal reven- 29 ue code, and without regard to subsection (c) of such section, received 30 from a corporation that is not included in a combined report with the 31 taxpayer, less, (iii) in the discretion of the commissioner of finance, 32 any interest deductions directly or indirectly attributable to that 33 income. In lieu of subtracting from its exempt CFC income the amount of 34 those interest deductions, the taxpayer may make a revocable election to 35 reduce its total exempt CFC income by forty percent. If the taxpayer 36 makes this election, the taxpayer must also make the elections provided 37 for in paragraph (b) of subdivision five of this section and paragraph 38 (c) of this subdivision. If the taxpayer subsequently revokes this 39 election, the taxpayer must revoke the elections provided for in para- 40 graph (b) of subdivision five of this section and paragraph (c) of this 41 subdivision. A taxpayer which does not make this election because it has 42 no exempt CFC income will not be precluded from making those other 43 elections. The income described in subparagraph (ii) of this paragraph 44 shall not constitute investment income. 45 (c) "Exempt unitary corporate dividends" means those dividends from a 46 corporation that is conducting a unitary business with the taxpayer but 47 is not included in a combined report with the taxpayer, less, in the 48 discretion of the commissioner of finance, any interest deductions 49 directly or indirectly attributable to such income. Other than dividend 50 income received from corporations that are taxable under chapter eleven 51 of this title, except for vendors of utility services that are also 52 taxable under this subchapter, or would be taxable under chapter eleven 53 of this title, except for vendors of utility services that are also 54 taxable under this subchapter, if subject to tax and corporations that 55 would have been taxable as insurance corporations under former part IV, 56 title R, chapter forty-six of the administrative code of the city of NewS. 8474 591 1 York as in effect on June thirtieth, nineteen hundred seventy-four, in 2 lieu of subtracting from this dividend income those interest deductions, 3 the taxpayer may make a revocable election to reduce the total amount of 4 this dividend income by forty percent. If the taxpayer makes this 5 election, the taxpayer must also make the elections provided for in 6 paragraph (b) of subdivision five of this section and paragraph (b) of 7 this subdivision. If the taxpayer subsequently revokes this election, 8 the taxpayer must revoke the elections provided for in paragraph (b) of 9 subdivision five of this section and paragraph (b) of this subdivision. 10 A taxpayer that does not make this election because it has not received 11 any exempt unitary corporation dividends or is precluded from making 12 this election for dividends received from corporations that are taxable 13 under chapter eleven of this title, except for vendors of utility 14 services that are also taxable under this subchapter, or would be taxa- 15 ble under chapter eleven of this title if subject to tax, except for 16 vendors of utility services that are also taxable under this subchapter, 17 shall not be precluded from making those other elections. 18 (d) If the taxpayer attributes interest deductions to other exempt 19 income and the amount deducted exceeds other exempt income, the excess 20 of the interest deductions over other exempt income must be added back 21 to entire net income. In no case shall other exempt income exceed entire 22 net income. 23 (e) Other exempt income shall not include any amount treated as divi- 24 dends pursuant to section seventy-eight of the internal revenue code. 25 6. (a) The term "business capital" means all assets, other than 26 investment capital and stock issued by the taxpayer, less liabilities 27 not deducted from investment capital; provided, however, business capi- 28 tal shall include only those assets the income, loss or expense of which 29 are properly reflected, or would have been properly reflected if not 30 fully depreciated or expensed or depreciated or expensed to a nominal 31 amount, in the computation of entire net income for the taxable year. 32 (b) Provided, further, "business capital" shall not include assets to 33 the extent employed for the purpose of generating income which is 34 excluded from entire net income pursuant to the provisions of paragraph 35 (c-1) of subdivision eight of this section and shall be computed without 36 regard to liabilities directly or indirectly attributable to such 37 assets, but only if air carriers organized in the United States and 38 operating in the foreign country or countries in which the taxpayer has 39 its major base of operations and in which it is organized, resident or 40 headquartered, if not in the same country as its major base of oper- 41 ations, are not subject to any tax based on or measured by capital 42 imposed by such foreign country or countries or any political subdivi- 43 sion thereof, or if taxed, are provided an exemption, equivalent to that 44 provided for herein, from any tax based on or measured by capital 45 imposed by such foreign country or countries and from any such tax 46 imposed by any political subdivision thereof. 47 7. The term "business income" means entire net income minus investment 48 income and other exempt income. In no event shall the sum of investment 49 income and other exempt income exceed entire net income. If the taxpayer 50 makes the election provided for in subparagraph one of paragraph (a) of 51 subdivision five of section 11-654.2 of this subchapter, then all income 52 from qualified financial instruments shall constitute business income. 53 8. The term "entire net income" means total net income from all sourc- 54 es, which shall be presumably the same as the entire taxable income, 55 which, except as hereafter provided in this subdivision,S. 8474 592 1 (i) the taxpayer is required to report to the United States treasury 2 department, or 3 (ii) the taxpayer, in the case of a corporation that is exempt from 4 federal income tax, other than the tax on unrelated business taxable 5 income imposed under section five hundred eleven of the internal revenue 6 code, but which is subject to tax under this subchapter, would have been 7 required to report to the United States treasury department but for such 8 exemption, or 9 (iii) in the case of an alien corporation that under any provision of 10 the internal revenue code is not treated as a "domestic corporation" as 11 defined in section seven thousand seven hundred one of such code, is 12 effectively connected with the conduct of a trade or business within the 13 United States as determined under section eight hundred eighty-two of 14 the internal revenue code. 15 (a) Entire net income shall not include: 16 (1) Intentionally omitted; 17 (2) Intentionally omitted; 18 (2-a) any amounts treated as dividends pursuant to section seventy- 19 eight of the internal revenue code to the extent such dividends are not 20 deducted under section two hundred fifty of such code; 21 (3) bona fide gifts; 22 (4) income and deductions with respect to amounts received from school 23 districts and from corporations and associations, organized and operated 24 exclusively for religious, charitable or educational purposes, no part 25 of the net earnings of which inures to the benefit of any private share- 26 holder or individual, for the operation of school buses; 27 (5) any refund or credit of a tax imposed under this chapter, or 28 imposed by article nine, nine-A, twenty-three, or former article thir- 29 ty-two of the tax law, for which tax no exclusion or deduction was 30 allowed in determining the taxpayer's entire net income under this 31 subchapter, subchapter two, or subchapter three of this chapter for any 32 prior year; 33 (6) Intentionally omitted; 34 (7) that portion of wages and salaries paid or incurred for the taxa- 35 ble year for which a deduction is not allowed pursuant to the provisions 36 of section two hundred eighty-C of the internal revenue code; 37 (8) except with respect to property which is a qualified mass commut- 38 ing vehicle described in subparagraph (D) of paragraph eight of 39 subsection (f) of section one hundred sixty-eight of the internal reven- 40 ue code, relating to qualified mass commuting vehicles, and property of 41 a taxpayer principally engaged in the conduct of an aviation, steamboat, 42 ferry or navigation business, or two or more of such businesses, which 43 is placed in service before taxable years beginning in nineteen hundred 44 eighty-nine, any amount which is included in the taxpayer's federal 45 taxable income solely as a result of an election made pursuant to the 46 provisions of such paragraph eight as it was in effect for agreements 47 entered into prior to January first, nineteen hundred eighty-four; 48 (9) except with respect to property which is a qualified mass commut- 49 ing vehicle described in subparagraph (D) of paragraph eight of 50 subsection (f) of section one hundred sixty-eight of the internal reven- 51 ue code, relating to qualified mass commuting vehicles, and property of 52 a taxpayer principally engaged in the conduct of an aviation, steamboat, 53 ferry or navigation business, or two or more of such businesses, which 54 is placed in service before taxable years beginning in nineteen hundred 55 eighty-nine, any amount which the taxpayer could have excluded from 56 federal taxable income had it not made the election provided for in suchS. 8474 593 1 paragraph eight as it was in effect for agreements entered into prior to 2 January first, nineteen hundred eighty-four; 3 (10) the amount deductible pursuant to paragraph (j) of this subdivi- 4 sion; 5 (11) upon the disposition of property to which paragraph (j) of this 6 subdivision applies, the amount, if any, by which the aggregate of the 7 amounts described in subparagraph eleven of paragraph (b) of this subdi- 8 vision attributable to such property exceeds the aggregate of the 9 amounts described in paragraph (j) of this subdivision attributable to 10 such property; 11 (12) the amount deductible pursuant to paragraph (k) of this subdivi- 12 sion; 13 (13) the amount deductible pursuant to paragraph (o) of this subdivi- 14 sion; 15 (14) the amount computed pursuant to paragraph (q), (r) or (s) of this 16 subdivision, but only the amount determined pursuant to one of such 17 paragraphs; and 18 (15) the amount computed pursuant to paragraph (t) of this subdivi- 19 sion. 20 (16) The amount of any gain added back to determine entire net income 21 in a previous taxable year pursuant to subparagraph twenty-three of 22 paragraph (b) of subdivision eight of this section is included in feder- 23 al gross income for the taxable year. 24 (17) The amount of any grant received through either the COVID-19 25 pandemic small business recovery grant program, pursuant to section 26 sixteen-ff of the New York state urban development corporation act, or 27 the small business resilience grant program administered by the depart- 28 ment of small business services, to the extent the amount of either such 29 grant is included in federal taxable income. 30 (a-1) Notwithstanding any other provision of this subchapter, in the 31 case of a taxpayer that is a partner in a partnership subject to the tax 32 imposed by chapter eleven of this title as a utility, as defined in 33 subdivision six of section 11-1101 of such chapter, entire net income 34 shall not include the taxpayer's distributive or pro rata share for 35 federal income tax purposes of any item of income, gain, loss or 36 deduction of such partnership, or any item of income, gain, loss or 37 deduction of such partnership that the taxpayer is required to take into 38 account separately for federal income tax purposes. 39 (b) Entire net income shall be determined without the exclusion, 40 deduction or credit of: 41 (1) in the case of an alien corporation that under any provision of 42 the internal revenue code is not treated as a "domestic corporation" as 43 defined in section seven thousand seven hundred one of such code, (i) 44 any part of any income from dividends or interest on any kind of stock, 45 securities or indebtedness, but only if such income is treated as effec- 46 tively connected with the conduct of a trade or business in the United 47 States pursuant to section eight hundred sixty-four of the internal 48 revenue code, (ii) any income exempt from federal taxable income under 49 any treaty obligation of the United States, but only if such income 50 would be treated as effectively connected in the absence of such 51 exemption provided that such treaty obligation does not preclude the 52 taxation of such income by a state, or (iii) any income which would be 53 treated as effectively connected if such income were not excluded from 54 gross income pursuant to subsection (a) of section one hundred three of 55 the internal revenue code;S. 8474 594 1 (2) any part of any income from dividends or interest of any kind of 2 stock, securities, or indebtedness; 3 (3) taxes on or measured by profits or income paid or accrued to the 4 United States, any of its possessions, territories or commonwealths, 5 including taxes in lieu of any of the foregoing taxes otherwise general- 6 ly imposed by any possession, territory or commonwealth of the United 7 States, or taxes paid or accrued to the state under article nine, 8 nine-A, thirteen-A or thirty-two of the tax law as in effect on December 9 thirty-first, two thousand fourteen; 10 (3-a) taxes on or measured by profits or income, or which include 11 profits or income as a measure, paid or accrued to any other state of 12 the United States, or any political subdivision thereof, or to the 13 District of Columbia, including taxes expressly in lieu of any of the 14 foregoing taxes otherwise generally imposed by any other state of the 15 United States, or any political subdivision thereof, or the District of 16 Columbia; 17 (4) taxes imposed under this chapter; 18 (4-a) Intentionally omitted; 19 (4-b) the amount allowed as an exclusion or a deduction imposed by the 20 tax law in determining the entire taxable income for a relocation 21 described in subdivision thirteen of section 11-654 of this subchapter 22 which the taxpayer is required to report to the United States treasury 23 department but only such portion of such exclusion or deduction which is 24 not in excess of the amount of the credit allowed pursuant to subdivi- 25 sion thirteen of section 11-654 of this subchapter; 26 (4-c) the amount allowed as an exclusion or a deduction imposed by the 27 tax law for a relocation described in subdivision fourteen of section 28 11-654 of this subchapter in determining the entire taxable income which 29 the taxpayer is required to report to the United States treasury depart- 30 ment but only such portion of such exclusion or deduction which is not 31 in excess of the amount of the credit allowed pursuant to subdivision 32 fourteen of section 11-654 of this subchapter; 33 (4-d) Intentionally omitted; 34 (4-e) Intentionally omitted; 35 (5) Intentionally omitted; 36 (6) any amount allowed as a deduction for the taxable year under 37 section one hundred seventy-two of the internal revenue code, including 38 carryovers of deductions from prior taxable years; 39 (7) any amount by reason of the granting, issuing or assuming of a 40 restricted stock option, as defined in the internal revenue code of 41 nineteen hundred fifty-four, or by reason of the transfer of the share 42 of stock upon the exercise of the option, unless such share is disposed 43 of by the grantee of the option within two years from the date of the 44 granting of the option or within six months after the transfer of such 45 share to the grantee; 46 (8) Intentionally omitted; 47 (9) except with respect to property which is a qualified mass commut- 48 ing vehicle described in subparagraph (D) of paragraph eight of 49 subsection (f) of section one hundred sixty-eight of the internal reven- 50 ue code, relating to qualified mass commuting vehicles, and property of 51 a taxpayer principally engaged in the conduct of an aviation, steamboat, 52 ferry or navigation business, or two or more of such businesses, which 53 is placed in service before taxable years beginning in nineteen hundred 54 eighty-nine, any amount which the taxpayer claimed as a deduction in 55 computing its federal taxable income solely as a result of an election 56 made pursuant to the provisions of such paragraph eight as it was inS. 8474 595 1 effect for agreements entered into prior to January first, nineteen 2 hundred eighty-four; 3 (10) except with respect to property which is a qualified mass commut- 4 ing vehicle described in subparagraph (D) of paragraph eight of 5 subsection (f) of section one hundred sixty-eight of the internal reven- 6 ue code, relating to qualified mass commuting vehicles, and property of 7 a taxpayer principally engaged in the conduct of an aviation, steamboat, 8 ferry or navigation business, or two or more of such businesses, which 9 is placed in service before taxable years beginning in nineteen hundred 10 eighty-nine, any amount which the taxpayer would have been required to 11 include in the computation of its federal taxable income had it not made 12 the election permitted pursuant to such paragraph eight as it was in 13 effect for agreements entered into prior to January first, nineteen 14 hundred eighty-four; 15 (11) in the case of property placed in service in taxable years begin- 16 ning before nineteen hundred ninety-four, for taxable years beginning 17 after December thirty-first, nineteen hundred eighty-one, except with 18 respect to property subject to the provisions of section two hundred 19 eighty-F of the internal revenue code, property subject to the 20 provisions of section one hundred sixty-eight of the internal revenue 21 code which is placed in service in this state in taxable years beginning 22 after December thirty-first, nineteen hundred eighty-four and property 23 of a taxpayer principally engaged in the conduct of an aviation, steam- 24 boat, ferry or navigation business, or two or more of such businesses, 25 which is placed in service before taxable years beginning in nineteen 26 hundred eighty-nine, the amount allowable as a deduction determined 27 under section one hundred sixty-eight of the internal revenue code; 28 (12) upon the disposition of property to which paragraph (j) of this 29 subdivision applies, the amount, if any, by which the aggregate of the 30 amounts described in such paragraph (j) attributable to such property 31 exceeds the aggregate of the amounts described in subparagraph eleven of 32 this paragraph attributable to such property; 33 (13) Intentionally omitted; 34 (14) Intentionally omitted; 35 (15) Intentionally omitted; 36 (16) in the case of qualified property described in paragraph two of 37 subsection (k) of section one hundred sixty-eight of the internal reven- 38 ue code, other than qualified resurgence zone property described in 39 paragraph (m) of this subdivision, and other than qualified New York 40 Liberty Zone property described in paragraph two of subsection (b) of 41 section fourteen hundred-L of the internal revenue code, without regard 42 to clause (i) of subparagraph (C) of such paragraph, the amount allow- 43 able as a deduction under section one hundred sixty-seven of the inter- 44 nal revenue code; 45 (17) in the case of a taxpayer that is not an eligible farmer as 46 defined in subsection (n) of section six hundred six of the tax law, the 47 amount allowable as a deduction under sections one hundred seventy-nine, 48 one hundred sixty-seven and one hundred sixty-eight of the internal 49 revenue code with respect to a sport utility vehicle that is not a 50 passenger automobile as defined in paragraph five of subsection (d) of 51 section two hundred eighty-F of the internal revenue code; 52 (18) the amount of any deduction allowed pursuant to section one 53 hundred ninety-nine of the internal revenue code; 54 (19) the amount of any federal deduction for taxes imposed under arti- 55 cle twenty-three of the tax law;S. 8474 596 1 (20) the amount of any federal deduction allowed pursuant to 2 subsection (c) of section nine hundred sixty-five of the internal reven- 3 ue code; 4 (21) the amount of any federal deduction allowed pursuant to subpara- 5 graph (A) of paragraph one of subdivision (a) of section two hundred 6 fifty of the internal revenue code. 7 (22) For taxable years beginning in two thousand nineteen and two 8 thousand twenty, the amount of the increase in the federal interest 9 deduction allowed pursuant to paragraph ten of subdivision (j) of 10 section one hundred sixty-three of the internal revenue code. 11 (23) The amount of any gain excluded from federal gross income for the 12 taxable year by subparagraph (A) of paragraph (1) of subsection (a) of 13 section one thousand four hundred-Z-two of the internal revenue code. 14 (c) Intentionally omitted. 15 (c-1)(1) Notwithstanding any other provision of this subchapter, in 16 the case of a taxpayer which is a foreign air carrier holding a foreign 17 air carrier permit issued by the United States department of transporta- 18 tion pursuant to section four hundred two of the federal aviation act of 19 nineteen hundred fifty-eight, as amended, and which is qualified under 20 subparagraph two of this paragraph, entire net income shall not include, 21 and shall be computed without the deduction of, amounts directly or 22 indirectly attributable to, (i) any income derived from the interna- 23 tional operation of aircraft as described in and subject to the 24 provisions of section eight hundred eighty-three of the internal revenue 25 code, (ii) income without the United States which is derived from the 26 operation of aircraft, and (iii) income without the United States which 27 is of a type described in subdivision (a) of section eight hundred 28 eighty-one of the internal revenue code except that it is derived from 29 sources without the United States. Entire net income shall include 30 income described in clauses (i), (ii) and (iii) of this subparagraph in 31 the case of taxpayers not described in the previous sentence; 32 (2) A taxpayer is qualified under this subparagraph if air carriers 33 organized in the United States and operating in the foreign country or 34 countries in which the taxpayer has its major base of operations and in 35 which it is organized, resident or headquartered, if not in the same 36 country as its major base of operations, are not subject to any income 37 tax or other tax based on or measured by income or receipts imposed by 38 such foreign country or countries or any political subdivision thereof, 39 or if so subject to such tax, are provided an exemption from such tax 40 equivalent to that provided for herein. 41 (d) The commissioner of finance may, whenever necessary in order to 42 properly reflect the entire net income of any taxpayer, determine the 43 year or period in which any item of income or deduction shall be 44 included, without regard to the method of accounting employed by the 45 taxpayer. 46 (e) The entire net income of any bridge commission created by act of 47 congress to construct a bridge across an international boundary means 48 its gross income less the expense of maintaining and operating its prop- 49 erties, the annual interest upon its bonds and other obligations, and 50 the annual charge for the retirement of such bonds or obligations at 51 maturity. 52 (f) Intentionally omitted. 53 (g) At the election of the taxpayer, a deduction shall be allowed for 54 expenditures paid or incurred during the taxable year for the 55 construction, reconstruction, erection or improvement of industrial 56 waste treatment facilities and air pollution control facilities.S. 8474 597 1 (1)(i) The term "industrial waste treatment facilities" shall mean 2 facilities for the treatment, neutralization or stabilization of indus- 3 trial waste, as the term "industrial waste" is defined in section 4 17-0105 of the environmental conservation law, from a point immediately 5 preceding the point of such treatment, neutralization or stabilization 6 to the point of disposal, including the necessary pumping and transmit- 7 ting facilities, but excluding such facilities installed for the primary 8 purpose of salvaging materials which are usable in the manufacturing 9 process or are marketable. 10 (ii) The term "air pollution control facilities" shall mean facilities 11 which remove, reduce, or render less noxious air contaminants emitted 12 from an air contamination source, as the terms "air contaminant" and 13 "air contamination source" are defined in section 19-0107 of the envi- 14 ronmental conservation law, from a point immediately preceding the point 15 of such removal, reduction or rendering to the point of discharge of 16 air, meeting emission standards as established by the air pollution 17 control board, but excluding such facilities installed for the primary 18 purpose of salvaging materials which are usable in the manufacturing 19 process or are marketable and excluding those facilities which rely for 20 their efficacy on dilution, dispersion or assimilation of air contam- 21 inants in the ambient air after emission. 22 (2) However, such deduction shall be allowed only (i) with respect to 23 tangible property which is depreciable, pursuant to section one hundred 24 sixty-seven of the internal revenue code, having a situs in the city and 25 used in the taxpayer's trade or business, the construction, recon- 26 struction, erection or improvement of which, in the case of industrial 27 waste treatment facilities, is initiated on or after January first, 28 nineteen hundred sixty-six, and only for expenditures paid or incurred 29 prior to January first, nineteen hundred seventy-two, or which, in the 30 case of air pollution control facilities, is initiated on or after Janu- 31 ary first, nineteen hundred sixty-six, and 32 (ii) on condition that such facilities have been certified by the 33 state commissioner of environmental conservation or the state commis- 34 sioner's designated representative, in the same manner as provided for 35 in section 17-0707 or 19-0309 of the environmental conservation law, as 36 applicable, as complying with applicable provisions of the environmental 37 conservation law, the state sanitary code and regulations, permits or 38 orders issued pursuant thereto, and 39 (iii) on condition that entire net income for the taxable year and all 40 succeeding taxable years be computed without any deductions for such 41 expenditures or for depreciation of the same property other than the 42 deductions allowed by this paragraph except to the extent that the basis 43 of the property may be attributable to factors other than such expendi- 44 tures, or in case a deduction is allowable pursuant to this paragraph 45 for only a part of such expenditures, on condition that any deduction 46 allowed for federal income tax purposes for such expenditures or for 47 depreciation of the same property be proportionately reduced in comput- 48 ing entire net income for the taxable year and all succeeding taxable 49 years, and 50 (iv) where the election provided for in paragraph (d) of subdivision 51 three of section 11-604 of this chapter or the election provided for in 52 subdivision (k) of section 11-641 of this chapter has not been exercised 53 in respect to the same property. 54 (3)(i) If expenditures in respect to an industrial waste treatment 55 facility or an air pollution control facility have been deducted as 56 provided herein and if within ten years from the end of the taxable yearS. 8474 598 1 in which such deduction was allowed such property or any part thereof is 2 used for the primary purpose of salvaging materials which are usable in 3 the manufacturing process or are marketable, the taxpayer shall report 4 such change of use in its report for the first taxable year during which 5 it occurs, and the commissioner of finance may recompute the tax for the 6 year or years for which such deduction was allowed and any carryback or 7 carryover year, and may assess any additional tax resulting from such 8 recomputation within the time fixed by paragraph (h) of subdivision 9 three of section 11-674 of this chapter. 10 (ii) If a deduction is allowed as herein provided for expenditures 11 paid or incurred during any taxable year on the basis of a temporary 12 certificate of compliance issued pursuant to the environmental conserva- 13 tion law and if the taxpayer fails to obtain a permanent certificate of 14 compliance upon completion of the facilities with respect to which such 15 temporary certificate was issued, the taxpayer shall report such failure 16 in its report for the taxable year during which such facilities are 17 completed, and the commissioner of finance may recompute the tax for the 18 year or years for which such deduction was allowed and any carryback or 19 carryover year, and may assess any additional tax resulting from such 20 recomputation within the time fixed by paragraph (h) of subdivision 21 three of section 11-674 of this chapter. 22 (4) In any taxable year when property is sold or otherwise disposed 23 of, with respect to which a deduction has been allowed pursuant to this 24 paragraph, such deduction shall be disregarded in computing gain or 25 loss, and the gain or loss on the sale or other disposition of such 26 property shall be the gain or loss entering into the computation of 27 entire taxable income which the taxpayer is required to report to the 28 United States treasury for such taxable year; 29 (h) With respect to gain derived from the sale or other disposition of 30 any property acquired prior to January first, nineteen hundred sixty- 31 six; which had a federal adjusted basis on such date, or on the date of 32 its sale or other disposition prior to January first, nineteen hundred 33 sixty-six, lower than its fair market value on January first, nineteen 34 hundred sixty-six or the date of its sale or other disposition prior 35 thereto, except property described in subsections one and four of 36 section twelve hundred twenty-one of the internal revenue code, there 37 shall be deducted from entire net income, the difference between (1) the 38 amount of the taxpayer's federal taxable income, and (2) the amount of 39 the taxpayer's federal taxable income, if smaller than the amount 40 described in subparagraph one of this paragraph, computed as if the 41 federal adjusted basis of each such property, on the sale or other 42 disposition of which gain was derived, on the date of the sale or other 43 disposition had been equal to either (i) its fair market value on Janu- 44 ary first, nineteen hundred sixty-six or the date of its sale or other 45 disposition prior to January first, nineteen hundred sixty-six, plus or 46 minus all adjustments to basis made with respect to such property for 47 federal income tax purposes for periods on and after January first, 48 nineteen hundred sixty-six or (ii) the amount realized from its sale or 49 disposition, whichever is lower; provided, however, that the total 50 modification provided by this paragraph shall not exceed the amount of 51 the taxpayer's net gain from the sale or other disposition of all such 52 property. 53 (i) If the period covered by a report under this subchapter is other 54 than the period covered by the report of the United States treasury 55 department, entire net income shall be determined by multiplying the 56 federal taxable income, as adjusted pursuant to the provisions of thisS. 8474 599 1 subchapter, by the number of calendar months or major parts thereof 2 covered by the report under this subchapter and dividing by the number 3 of calendar months or major parts thereof covered by the report to such 4 department. If it shall appear that such method of determining entire 5 net income does not properly reflect the taxpayer's income during the 6 period covered by the report under this subchapter, the commissioner of 7 finance shall be authorized in his or her discretion to determine such 8 entire net income solely on the basis of the taxpayer's income during 9 the period covered by its report under this subchapter. 10 (j) In the case of property placed in service in taxable years begin- 11 ning before nineteen hundred ninety-four, for taxable years beginning 12 after December thirty-first, nineteen hundred eighty-one, except with 13 respect to property subject to the provisions of section two hundred 14 eighty-F of the internal revenue code and property subject to the 15 provisions of section one hundred sixty-eight of the internal revenue 16 code which is placed in service in this state in taxable years beginning 17 after December thirty-first, nineteen hundred eighty-four, and provided 18 a deduction has not been excluded from entire net income pursuant to 19 subparagraph nine of paragraph (b) of this subdivision, a taxpayer shall 20 be allowed with respect to property which is subject to the provisions 21 of section one hundred sixty-eight of the internal revenue code the 22 depreciation deduction allowable under section one hundred sixty-seven 23 of the internal revenue code as such section would have applied to prop- 24 erty placed in service on December thirty-first, nineteen hundred 25 eighty. This paragraph shall not apply to property of a taxpayer prin- 26 cipally engaged in the conduct of an aviation, steamboat, ferry or navi- 27 gation business, or two or more of such businesses, which is placed in 28 service before taxable years beginning in nineteen hundred eighty-nine. 29 (k) In the case of qualified property described in paragraph two of 30 subsection (k) of section one hundred sixty-eight of the internal reven- 31 ue code, other than qualified resurgence zone property described in 32 paragraph (m) of this subdivision, and other than qualified New York 33 Liberty Zone property described in paragraph two of subsection (b) of 34 section fourteen hundred-L of the internal revenue code, without regard 35 to clause (i) of subparagraph (C) of such paragraph, the depreciation 36 deduction allowable under section one hundred sixty-seven as such 37 section would have applied to such property had it been acquired by the 38 taxpayer on September tenth, two thousand one, provided, however, that 39 for taxable years beginning on or after January first, two thousand 40 four, in the case of a passenger motor vehicle or a sport utility vehi- 41 cle subject to the provisions of paragraph (o) of this subdivision, the 42 limitation under clause (i) of subparagraph (A) of paragraph one of 43 subdivision (a) of section two hundred eighty-F of the internal revenue 44 code applicable to the amount allowed as a deduction under this para- 45 graph shall be determined as of the date such vehicle was placed in 46 service and not as of September tenth, two thousand one. 47 (l) Upon the disposition of property to which paragraph (k) of this 48 subdivision applies, the amount of any gain or loss includible in entire 49 net income shall be adjusted to reflect the inclusions and exclusions 50 from entire net income pursuant to subparagraph twelve of paragraph (a) 51 and subparagraph sixteen of paragraph (b) of this subdivision attribut- 52 able to such property. 53 (m) For purposes of this paragraph and paragraph (l) of this subdivi- 54 sion, qualified resurgence zone property shall mean qualified property 55 described in paragraph two of subsection (k) of section one hundred 56 sixty-eight of the internal revenue code substantially all of the use ofS. 8474 600 1 which is in the resurgence zone, as defined below, and is in the active 2 conduct of a trade or business by the taxpayer in such zone, and the 3 original use of which in the resurgence zone commences with the taxpayer 4 after September tenth, two thousand one. The resurgence zone shall mean 5 the area of New York county bounded on the south by a line running from 6 the intersection of the Hudson River with the Holland Tunnel, and 7 running thence east to Canal Street, then running along the centerline 8 of Canal Street to the intersection of the Bowery and Canal Street, 9 running thence in a southeasterly direction diagonally across Manhattan 10 Bridge Plaza, to the Manhattan Bridge, and thence along the centerline 11 of the Manhattan Bridge to the point where the centerline of the Manhat- 12 tan Bridge would intersect with the easterly bank of the East River, and 13 bounded on the north by a line running from the intersection of the 14 Hudson River with the Holland Tunnel and running thence north along West 15 Avenue to the intersection of Clarkson Street then running east along 16 the centerline of Clarkson Street to the intersection of Washington 17 Avenue, then running south along the centerline of Washington Avenue to 18 the intersection of West Houston Street, then east along the centerline 19 of West Houston Street, then at the intersection of the Avenue of the 20 Americas continuing east along the centerline of East Houston Street to 21 the easterly bank of the East River. 22 (n) Related members expense add back. (1) For purposes of this para- 23 graph: (i) "Related member" means a related person as defined in subpar- 24 agraph (c) of paragraph three of subsection (b) of section four hundred 25 sixty-five of the internal revenue code, except that "fifty percent" 26 shall be substituted for "ten percent". 27 (ii) "Effective rate of tax" means, as to any city, the maximum statu- 28 tory rate of tax imposed by the city on or measured by a related 29 member's net income multiplied by the allocation percentage, if any, 30 applicable to the related member under the laws of said jurisdiction. 31 For purposes of this definition, the effective rate of tax as to any 32 city is zero where the related member's net income tax liability in said 33 city is reported on a combined or consolidated return including both the 34 taxpayer and the related member where the reported transactions between 35 the taxpayer and the related member are eliminated or offset. Also, for 36 purposes of this definition, when computing the effective rate of tax 37 for a city in which a related member's net income is eliminated or 38 offset by a credit or similar adjustment that is dependent upon the 39 related member either maintaining or managing intangible property or 40 collecting interest income in that city, the maximum statutory rate of 41 tax imposed by said city shall be decreased to reflect the statutory 42 rate of tax that applies to the related member as effectively reduced by 43 such credit or similar adjustment. 44 (iii) Royalty payments are payments directly connected to the acquisi- 45 tion, use, maintenance or management, ownership, sale, exchange, or any 46 other disposition of licenses, trademarks, copyrights, trade names, 47 trade dress, service marks, mask works, trade secrets, patents and any 48 other similar types of intangible assets as determined by the commis- 49 sioner of finance, and include amounts allowable as interest deductions 50 under section one hundred sixty-three of the internal revenue code to 51 the extent such amounts are directly or indirectly for, related to or in 52 connection with the acquisition, use, maintenance or management, owner- 53 ship, sale, exchange or disposition of such intangible assets. 54 (iv) A valid business purpose is one or more business purposes, other 55 than the avoidance or reduction of taxation, which alone or in combina- 56 tion constitute the primary motivation for some business activity orS. 8474 601 1 transaction, which activity or transaction changes in a meaningful way, 2 apart from tax effects, the economic position of the taxpayer. The 3 economic position of the taxpayer includes an increase in the market 4 share of the taxpayer, or the entry by the taxpayer into new business 5 markets. 6 (2) Royalty expense add backs. (i) Except where a taxpayer is included 7 in a combined report pursuant to section 11-654.3 of this subchapter 8 with the applicable related member, for the purpose of computing entire 9 net income or other applicable taxable basis, a taxpayer must add back 10 royalty payments directly or indirectly paid, accrued, or incurred in 11 connection with one or more direct or indirect transactions with one or 12 more related members during the taxable year to the extent deductible in 13 calculating federal taxable income. 14 (ii) Exceptions. (A) The adjustment required in this paragraph shall 15 not apply to the portion of the royalty payment that the taxpayer estab- 16 lishes, by clear and convincing evidence of the type and in the form 17 specified by the commissioner of finance, meets all of the following 18 requirements: (I) the related member was subject to tax in this city or 19 another city within the United States or a foreign nation or some combi- 20 nation thereof on a tax base that included the royalty payment paid, 21 accrued or incurred by the taxpayer; (II) the related member during the 22 same taxable year directly or indirectly paid, accrued or incurred such 23 portion to a person that is not a related member; and (III) the trans- 24 action giving rise to the royalty payment between the taxpayer and the 25 related member was undertaken for a valid business purpose. 26 (B) The adjustment required in this paragraph shall not apply if the 27 taxpayer establishes, by clear and convincing evidence of the type and 28 in the form specified by the commissioner of finance, that: (I) the 29 related member was subject to tax on or measured by its net income in 30 this city or another city within the United States, or some combination 31 thereof; (II) the tax base for said tax included the royalty payment 32 paid, accrued or incurred by the taxpayer; and (III) the aggregate 33 effective rate of tax applied to the related member in those jurisdic- 34 tions is no less than eighty percent of the statutory rate of tax that 35 applied to the taxpayer under section 11-604 of this chapter for the 36 taxable year. 37 (C) The adjustment required in this paragraph shall not apply if the 38 taxpayer establishes, by clear and convincing evidence of the type and 39 in the form specified by the commissioner of finance, that: (I) the 40 royalty payment was paid, accrued or incurred to a related member organ- 41 ized under the laws of a country other than the United States; (II) the 42 related member's income from the transaction was subject to a comprehen- 43 sive income tax treaty between such country and the United States; (III) 44 the related member was subject to tax in a foreign nation on a tax base 45 that included the royalty payment paid, accrued or incurred by the 46 taxpayer; (IV) the related member's income from the transaction was 47 taxed in such country at an effective rate of tax at least equal to that 48 imposed by this city; and (V) the royalty payment was paid, accrued or 49 incurred pursuant to a transaction that was undertaken for a valid busi- 50 ness purpose and using terms that reflect an arm's length relationship. 51 (D) The adjustment required in this paragraph shall not apply if the 52 taxpayer and the commissioner of finance agree in writing to the appli- 53 cation or use of alternative adjustments or computations. The commis- 54 sioner of finance may, in his or her discretion, agree to the applica- 55 tion or use of alternative adjustments or computations when he or sheS. 8474 602 1 concludes that in the absence of such agreement the income of the 2 taxpayer would not be properly reflected. 3 (o) In the case of a taxpayer that is not an eligible farmer as 4 defined in subsection (n) of section six hundred six of the tax law, the 5 deductions allowable under sections one hundred seventy-nine, one 6 hundred sixty-seven and one hundred sixty-eight of the internal revenue 7 code with respect to a sport utility vehicle that is not a passenger 8 automobile as defined in paragraph five of subsection (d) of section two 9 hundred eighty-F of the internal revenue code, determined as if such 10 sport utility vehicle were a passenger automobile as defined in such 11 paragraph five. For purposes of subparagraph sixteen of paragraph (b) 12 and paragraph (k) of this subdivision, the terms qualified resurgence 13 zone property and qualified New York Liberty Zone property described in 14 paragraph two of subsection b of section fourteen hundred-L of the 15 internal revenue code shall not include any sport utility vehicle that 16 is not a passenger automobile as defined in paragraph five of subsection 17 (d) of section two hundred eighty-F of the internal revenue code. 18 (p) Upon the disposition of property to which paragraph (o) of this 19 subdivision applies, the amount of any gain or loss includible in entire 20 net income shall be adjusted to reflect the inclusions and exclusions 21 from entire net income pursuant to subparagraph thirteen of paragraph 22 (a) and subparagraph seventeen of paragraph (b) of this subdivision 23 attributable to such property. 24 (q) Subtraction modification for community banks and small thrifts. 25 (1) A taxpayer that is a qualified community bank as defined in subpara- 26 graph two of this paragraph or a small thrift institution as defined in 27 subparagraph two-a of this paragraph shall be allowed a deduction in 28 computing entire net income equal to the amount computed under subpara- 29 graph three of this paragraph. 30 (2) To be a qualified community bank, a taxpayer must satisfy the 31 following conditions: 32 (i) It is a bank or trust company organized under or subject to the 33 provisions of article three of the banking law or a comparable provision 34 of the laws of another state, or a national banking association. 35 (ii) The average value during the taxable year of the assets of the 36 taxpayer, or, if the taxpayer is included in a combined report, the 37 assets of the combined reporting group of the taxpayer under section 38 11-654.3 of this subchapter, must not exceed eight billion dollars. 39 (2-a) To be a small thrift institution, a taxpayer must satisfy the 40 following conditions: 41 (i) It is a savings bank, a savings and loan association, or other 42 savings institution chartered and supervised as such under federal or 43 state law. 44 (ii) The average value during the taxable year of the assets of the 45 taxpayer, or, if the taxpayer is included in a combined report, the 46 assets of the combined reporting group of the taxpayer under section 47 11-654.3 of this subchapter, must not exceed eight billion dollars. 48 (3)(i) The subtraction modification shall be computed as follows: 49 (A) Multiply the taxpayer's net interest income from loans during the 50 taxable year by a fraction, the numerator of which is the gross interest 51 income during the taxable year from qualifying loans and the denominator 52 of which is the gross interest income during the taxable year from all 53 loans. 54 (B) Multiply the amount determined in subclause (A) of this clause by 55 fifty percent. This product is the amount of the deduction allowed under 56 this paragraph.S. 8474 603 1 (ii)(A) Net interest income from loans shall mean gross interest 2 income from loans less gross interest expense from loans. Gross interest 3 expense from loans is determined by multiplying gross interest expense 4 by a fraction, the numerator of which is the average total value of 5 loans owned by the thrift institution or community bank during the taxa- 6 ble year and the denominator of which is the average total assets of the 7 thrift institution or community bank during the taxable year. 8 (B) Measurement of assets. For purposes of this clause: (I) Total 9 assets are those assets that are properly reflected on a balance sheet, 10 computed in the same manner as is required by the banking regulator of 11 the taxpayers included in the combined return. In addition, total assets 12 includes leased real property that is not properly reflected on a 13 balance sheet. 14 (II) Assets will only be included if the income or expenses of which 15 are properly reflected, or would have been properly reflected if not 16 fully depreciated or expensed, or depreciated or expensed to a nominal 17 amount, in the computation of the taxpayer's entire net income for the 18 taxable year. Assets will not include deferred tax assets and intangible 19 assets identified as "goodwill". 20 (III) Tangible real and personal property, such as buildings, land, 21 machinery, and equipment, shall be valued at cost. Leased real property 22 that is not properly reflected on the balance sheet will be valued at 23 the annual lease payment multiplied by eight. Intangible property, such 24 as loans and investments, shall be valued at book value exclusive of 25 reserves. 26 (IV) Average assets are computed using the assets measured on the 27 first day of the taxable year, and on the last day of each subsequent 28 quarter of the taxable year or month or day during the taxable year. 29 (iii) A qualifying loan is a loan that meets the conditions specified 30 in subclause (A) of this clause and subclause (B) of this clause. 31 (A) The loan is originated by the qualified community bank or small 32 thrift institution or purchased by the qualified community bank or small 33 thrift institution immediately after its origination in connection with 34 a commitment to purchase made by the bank or thrift institution prior to 35 the loan's origination. 36 (B) The loan is a small business loan or a residential mortgage loan, 37 the principal amount of which loan is five million dollars or less, and 38 either the borrower is located in this city as determined under section 39 11-654.2 of this subchapter and the loan is not secured by real proper- 40 ty, or the loan is secured by real property located in the city. 41 (C) A loan that meets the definition of a qualifying loan in a prior 42 taxable year, including years prior to the effective date of this para- 43 graph, remains a qualifying loan in taxable years during and after which 44 such loan is acquired by another corporation in the taxpayer's combined 45 reporting group under section 11-654.3 of this subchapter. 46 (r) A small thrift institution or a qualified community bank, as 47 defined in paragraph (q) of this subdivision, that maintained a captive 48 REIT on April first, two thousand fourteen shall utilize a REIT 49 subtraction equal to one hundred sixty percent of the dividends paid 50 deductions allowed to that captive REIT for the taxable year for federal 51 income tax purposes and shall not be allowed to utilize the subtraction 52 modification for community banks and small thrifts under paragraph (q) 53 of this subdivision or the subtraction modification for qualified resi- 54 dential loan portfolios under paragraph (s) of this subdivision in any 55 tax year in which such thrift institution or community bank maintains 56 that captive REIT.S. 8474 604 1 (s) Subtraction modification for qualified residential loan portfo- 2 lios. (1)(i) A taxpayer that is either a thrift institution as defined 3 in subparagraph three of this paragraph or a qualified community bank as 4 defined in subparagraph two of paragraph (q) of this subdivision and 5 maintains a qualified residential loan portfolio as defined in subpara- 6 graph two of this paragraph shall be allowed as a deduction in computing 7 entire net income the amount, if any, by which (A) thirty-two percent of 8 its entire net income determined without regard to this paragraph 9 exceeds (B) the amounts deducted by the taxpayer pursuant to sections 10 one hundred sixty-six and five hundred eighty-five of the internal 11 revenue code less any amounts included in federal taxable income as a 12 result of a recovery of a loan. 13 (ii)(A) If the taxpayer is in a combined report under section 11-654.3 14 of this subchapter, this deduction will be computed on a combined basis. 15 In that instance, the entire net income of the combined reporting group 16 for purposes of this paragraph shall be multiplied by a fraction, the 17 numerator of which is the average total assets of all the thrift insti- 18 tutions and qualified community banks included in the combined report 19 and the denominator of which is the average total assets of all the 20 corporations included in the combined report. 21 (B) Measurement of assets. For purposes of this paragraph: (I) Total 22 assets are those assets that are properly reflected on a balance sheet, 23 computed in the same manner as is required by the banking regulator of 24 the taxpayers included in the combined return. In addition, total assets 25 includes leased real property that is not properly reflected on a 26 balance sheet. 27 (II) Assets will only be included if the income or expenses of which 28 are properly reflected, or would have been properly reflected if not 29 fully depreciated or expensed, or depreciated or expensed to a nominal 30 amount, in the computation of the combined group's entire net income for 31 the taxable year. Assets will not include deferred tax assets and intan- 32 gible assets identified as "goodwill". 33 (III) Tangible real and personal property, such as buildings, land, 34 machinery, and equipment shall be valued at cost. Leased real property 35 that is not properly reflected on a balance sheet will be valued at the 36 annual lease payment multiplied by eight. Intangible property, such as 37 loans and investments, shall be valued at book value exclusive of 38 reserves. 39 (IV) Intercorporate stockholdings and bills, notes and accounts 40 receivable, and other intercorporate indebtedness between the corpo- 41 rations included in the combined report shall be eliminated. 42 (V) Average assets are computed using the assets measured on the first 43 day of the taxable year, and on the last day of each subsequent quarter 44 of the taxable year or month or day during the taxable year. 45 (2) Qualified residential loan portfolio. (i) A taxpayer maintains a 46 qualified residential loan portfolio if at least sixty percent of the 47 amount of the total assets at the close of the taxable year of the 48 thrift institution or qualified community bank consists of the assets 49 described in subclauses (A) through (L) of this clause, with the appli- 50 cation of the rule in the last undesignated subclause of this clause. If 51 the taxpayer is a member of a combined group, the determination of 52 whether there is a qualified residential loan portfolio will be made by 53 aggregating the assets of the thrift institutions and qualified communi- 54 ty banks that are members of the combined group. Assets: (A) cash, which 55 includes cash and cash equivalents including cash items in the process 56 of collection, deposits with other financial institutions, includingS. 8474 605 1 corporate credit unions, balances with federal reserve banks and federal 2 home loan banks, federal funds sold, and cash and cash equivalents on 3 hand. Cash shall not include any balances serving as collateral for 4 securities lending transactions; (B) obligations of the United States or 5 of a state or political subdivision thereof, and stock or obligations of 6 a corporation which is an instrumentality or a government sponsored 7 enterprise of the United States or of a state or political subdivision 8 thereof; (C) loans secured by a deposit or share of a member; (D) loans 9 secured by an interest in real property which is, or, from the proceeds 10 of the loan, will become, residential real property or real property 11 used primarily for church purposes, loans made for the improvement of 12 residential real property or real property used primarily for church 13 purposes, provided that for purposes of this subclause, residential real 14 property shall include single or multi-family dwellings, facilities in 15 residential developments dedicated to public use or property used on a 16 nonprofit basis for residents, and mobile homes not used on a transient 17 basis; (E) property acquired through the liquidation of defaulted loans 18 described in subclause (D) of this clause; (F) any regular or residual 19 interest in a REMIC, as such term is defined in section eight hundred 20 sixty-D of the internal revenue code, but only in the proportion which 21 the assets of such REMIC consist of property described in subclauses (A) 22 through (E) of this clause, except that if ninety-five percent or more 23 of the assets of such REMIC are assets described in such subclauses, the 24 entire interest in the REMIC shall qualify; (G) any mortgage-backed 25 security which represents ownership of a fractional undivided interest 26 in a trust, the assets of which consist primarily of mortgage loans, 27 provided that the real property which serves as security for the loans 28 is, or from the proceeds of the loan, will become, the type of property 29 described in subclause (D) of this clause and any collateralized mort- 30 gage obligation, the security for which consists primarily of mortgage 31 loans that maintain as security the type of property described in 32 subclause (D) of this clause; (H) certificates of deposit in, or obli- 33 gations of, a corporation organized under a state law which specifically 34 authorizes such corporation to insure the deposits or share accounts of 35 member associations; (I) loans secured by an interest in educational, 36 health, or welfare institutions or facilities, including structures 37 designed or used primarily for residential purposes for students, resi- 38 dents, and persons under care, employees, or members of the staff of 39 such institutions or facilities; (J) loans made for the payment of 40 expenses of college or university education or vocational training; (K) 41 property used by the taxpayer in support of business which consists 42 principally of acquiring the savings of the public and investing in 43 loans; and (L) loans for which the taxpayer is the creditor and which 44 are wholly secured by loans described in subclause (D) of this clause. 45 The value of accrued interest receivable and any loss-sharing commit- 46 ment or other loan guaranty by a governmental agency will be considered 47 part of the basis in the loans to which the accrued interest or loss 48 protection applies. 49 (ii) At the election of the taxpayer, the percentage specified in 50 clause (i) of this subparagraph shall be applied on the basis of the 51 average assets outstanding during the taxable year, in lieu of the close 52 of the taxable year. The taxpayer can elect to compute an average using 53 the assets measured on the first day of the taxable year and on the last 54 day of each subsequent quarter, or month or day during the taxable year. 55 This election may be made annually.S. 8474 606 1 (iii) For purposes of subclause (D) of clause (i) of this subpara- 2 graph, if a multifamily structure securing a loan is used in part for 3 nonresidential use purposes, the entire loan is deemed a residential 4 real property loan if the planned residential use exceeds eighty percent 5 of the property's planned use, measured, at the taxpayer's election, by 6 using square footage or gross rental revenue, and determined as of the 7 time the loan is made. 8 (iv) For purposes of subclause (D) of clause (i) of this subparagraph, 9 loans made to finance the acquisition or development of land shall be 10 deemed to be loans secured by an interest in residential real property 11 if there is a reasonable assurance that the property will become resi- 12 dential real property within a period of three years from the date of 13 acquisition of such land; provided, however, this shall not apply for 14 any taxable year unless, within such three-year period, such land 15 becomes residential real property. For purposes of determining whether 16 any interest in a REMIC qualifies under subclause (F) of clause (i) of 17 this subparagraph, any regular interest in another REMIC held by such 18 REMIC shall be treated as a loan described in subclauses (A) through (E) 19 under principles similar to the principle of such subclause (F), except 20 that if such REMICs are part of a tiered structure, they shall be treat- 21 ed as one REMIC for purposes of such subclause (F). 22 (3) For purposes of this paragraph, a "thrift institution" is a 23 savings bank, a savings and loan association, or other savings institu- 24 tion chartered and supervised as such under federal or state law. 25 (t) Subtraction modification for qualified affordable housing and low 26 income community loans. 27 (1) A taxpayer that owns a qualifying loan within the meaning of 28 clause (iii) of subparagraph two of this paragraph shall be allowed a 29 deduction in computing entire net income equal to the amount computed 30 under subparagraph two of this paragraph. 31 (2)(i) The deduction allowed in subparagraph one of this paragraph 32 shall be equal to: 33 (A) if the total average value during the taxable year of the assets 34 of the taxpayer, or if the taxpayer is included in a combined report, 35 the assets of the combined reporting group of the taxpayer under section 36 11-654.3 of this subchapter, does not exceed one hundred billion 37 dollars, the taxpayer's net interest income from qualifying loans, or 38 (B) if the total average value during the taxable year of the assets 39 of the taxpayer, or if the taxpayer is included in a combined report, 40 the assets of the combined reporting group of the taxpayer under section 41 11-654.3 of this subchapter, exceeds one hundred billion dollars but is 42 less than one hundred fifty billion dollars, the taxpayer's net interest 43 income from qualifying loans multiplied by a fraction, the numerator of 44 which is one hundred fifty billion dollars minus the total average value 45 during the taxable year of the assets of the taxpayer, or if the taxpay- 46 er is included in a combined report, the assets of the combined report- 47 ing group of the taxpayer under section 11-654.3 of this subchapter, and 48 the denominator of which is fifty billion dollars. 49 (ii)(A) Net interest income from qualifying loans shall mean the 50 taxpayer's net interest income from loans during the taxable year multi- 51 plied by a fraction, the numerator of which is the gross interest income 52 during the taxable year from qualifying loans and the denominator of 53 which is the gross interest income from all loans. 54 (B) Net interest income from loans shall mean gross interest income 55 during the taxable year from loans less gross interest expense from 56 loans. Gross interest expense from loans is determined by multiplyingS. 8474 607 1 gross interest expense by a fraction, the numerator of which is the 2 average total value of loans owned by the taxpayer during the taxable 3 year and the denominator of which is the average total assets of the 4 taxpayer for the year. 5 (C) Measurement of assets. For purposes of this paragraph: 6 (I) Total assets are those assets that are properly reflected on a 7 balance sheet, computed in the same manner as is required by the banking 8 regulator, if applicable, of the taxpayers included in the combined 9 return. In addition, total assets includes leased real property that is 10 not properly reflected on a balance sheet. 11 (II) Assets will only be included if the income or expenses of which 12 are properly reflected, or would have been properly reflected if not 13 fully depreciated or expensed, or depreciated or expensed to a nominal 14 amount, in the computation of the taxpayer's entire net income for the 15 taxable year. Assets will not include deferred tax assets and intangible 16 assets identified as "goodwill". 17 (III) Tangible real and personal property, such as buildings, land, 18 machinery, and equipment, shall be valued at cost. Leased real property 19 that is not properly reflected on a balance sheet will be valued at the 20 annual lease payment multiplied by eight. Intangible property, such as 21 loans and investments, shall be valued at book value exclusive of 22 reserves. 23 (IV) Average assets are computed using the assets measured on the 24 first day of the taxable year, and on the last day of each subsequent 25 quarter of the taxable year or month or day during the taxable year. 26 (iii) A qualifying loan is a loan that meets the conditions specified 27 in subclause (A) through subclause (E) of this clause. 28 (A) The loan is originated by the taxpayer lender or purchased by the 29 taxpayer immediately after its origination in connection with a commit- 30 ment to purchase made by the taxpayer prior to the loan's origination. 31 (B) Satisfies conditions of item (I) or (II) of this subclause. 32 (I) The loan is secured by a housing accommodation located within the 33 city, where there are rental units in such housing accommodation that 34 are qualifying units, which for purposes of this subclause, means units 35 subject to rent control, rent stabilization or to a regulatory agree- 36 ment, provided that, each such loan will be considered a qualifying loan 37 for purposes of this paragraph only in proportion to a percentage equal 38 to the number of qualifying units divided by the total number of all 39 residential and commercial units located on the site of the real proper- 40 ty securing the loan, as determined as of the date the loan is made. 41 (II) To the extent not included in item (I) of this subclause, loans 42 secured by residential real property located in a low-income community. 43 For purposes of this paragraph, low-income community areas are census 44 tracts within the city in which the poverty rate for such tract is at 45 least twenty percent and the median family income for such tract does 46 not exceed eighty percent of metropolitan area median family income. 47 This determination will be made by reference to the poverty and median 48 family income census data for application of section forty-five-D of the 49 internal revenue code. 50 (C) The loan is not treated as a qualifying loan in the computation of 51 a subtraction from entire net income pursuant to paragraph (q) of this 52 subdivision. 53 (D) If the taxpayer applies a subtraction pursuant to paragraph (r) of 54 this subdivision, the interest or net gains from the loan are not recog- 55 nized by a captive REIT as defined in section 11-601 of this chapter.S. 8474 608 1 (E) A loan that meets the definition of a qualifying loan in a prior 2 taxable year, including years prior to the effective date of this para- 3 graph, remains a qualifying loan in taxable years during and after which 4 such loan is acquired by another corporation in the taxpayer's combined 5 reporting group under section 11-654.3 of this subchapter. 6 (iv) For purposes of this paragraph, the following terms shall mean: 7 (A) "Housing accommodations" shall mean a multiple dwelling that 8 contains at least five dwelling units together with the land on which 9 such structure is situated. 10 (B) "Regulatory agreement" shall mean a written agreement with or 11 approved by any local, municipal, state, federal or other government 12 agency that requires the provision of housing accommodations for fami- 13 lies and persons of low or moderate income, and binds the owner of such 14 real property and its successors and assigns. A regulatory agreement may 15 include such other terms and conditions as the locality, municipality, 16 state, or federal government shall determine. 17 (C) "Rent stabilization" shall mean, collectively, the rent stabiliza- 18 tion law of nineteen hundred sixty-nine, the rent stabilization code, 19 and the emergency tenant protection act of nineteen seventy-four, 20 together with any successor statutes or regulations addressing substan- 21 tially the same subject matter. 22 9. (a) The term "calendar year" means a period of twelve calendar 23 months, or any shorter period beginning on the date the taxpayer becomes 24 subject to the tax imposed by this subchapter, ending on the thirty- 25 first day of December, provided the taxpayer keeps its books on the 26 basis of such period or on the basis of any period ending on any day 27 other than the last day of a calendar month, or provided the taxpayer 28 does not keep books, and includes, in case the taxpayer changes the 29 period on the basis of which it keeps its books from a fiscal year to a 30 calendar year, the period from the close of its last old fiscal year up 31 to and including the following December thirty-first. 32 (b) The term "fiscal year" means a period of twelve calendar months, 33 or any shorter period beginning on the date the taxpayer becomes subject 34 to the tax imposed by this subchapter, ending on the last day of any 35 month other than December, provided the taxpayer keeps its books on the 36 basis of such period, and includes, in case the taxpayer changes the 37 period on the basis of which it keeps its books from a calendar year to 38 a fiscal year or from one fiscal year to another fiscal year, the period 39 from the close of its last old calendar or fiscal year up to the date 40 designated as the close of its new fiscal year. 41 10. The term "tangible personal property" means corporeal personal 42 property, such as machinery, tools, implements, goods, wares and 43 merchandise, and does not mean money, deposits in banks, shares of 44 stock, bonds, notes, credits or evidences of an interest property and 45 evidences of debt. 46 11. The term "internal revenue code" means, unless otherwise specif- 47 ically stated in this subchapter, the internal revenue code of 1986, as 48 amended. 49 12. The term "combinable captive insurance company" means an entity 50 that is treated as an association taxable as a corporation under the 51 internal revenue code: 52 (a) more than fifty percent of the voting stock of which is owned or 53 controlled, directly or indirectly, by a single entity that is treated 54 as an association taxable as a corporation under the internal revenue 55 code and not exempt from federal income tax;S. 8474 609 1 (b) that is licensed as a captive insurance company under the laws of 2 this state or another jurisdiction; 3 (c) whose business includes providing, directly and indirectly, insur- 4 ance or reinsurance covering the risks of its parent and/or members of 5 its affiliated group; and 6 (d) fifty percent or less of whose gross receipts for the taxable year 7 consist of premiums from arrangements that constitute insurance for 8 federal income tax purposes. 9 For purposes of this subdivision, "affiliated group" has the same 10 meaning as that term is given in section fifteen hundred four of the 11 internal revenue code, except that the term "common parent corporation" 12 in that section is deemed to mean any person, as defined in section 13 seven thousand seven hundred one of the internal revenue code and refer- 14 ences to "at least eighty percent" in section fifteen hundred four of 15 the internal revenue code are to be read as "fifty percent or more;" 16 section fifteen hundred four of the internal revenue code is to be read 17 without regard to the exclusions provided for in subsection (b) of that 18 section; "premiums" has the same meaning as that term is given in para- 19 graph one of subdivision (c) of section fifteen hundred ten of the tax 20 law, except that it includes consideration for annuity contracts and 21 excludes any part of the consideration for insurance, reinsurance or 22 annuity contracts that do not provide bona fide insurance, reinsurance 23 or annuity benefits; and "gross receipts" includes the amounts included 24 in gross receipts for purposes of paragraph fifteen of subsection (c) of 25 section five hundred one of the internal revenue code, except that those 26 amounts also include all premiums as defined in this subdivision. 27 13. The term "partnership" includes a syndicate, group, pool, joint 28 venture, or other unincorporated organization, through or by means of 29 which any business, financial operation, or venture is carried on, and 30 which is not a corporation as defined in subdivision one of this 31 section, or a trust or estate that is separate from its owner under part 32 one of subchapter J of chapter one of subtitle A of the internal revenue 33 code; and the term "partner" includes a member in such syndicate, group, 34 pool, joint venture, or organization. 35 § 11-653 Imposition of tax; exemptions. 1. (a) For the privilege of 36 doing business, or of employing capital, or of owning or leasing proper- 37 ty in the city in a corporate or organized capacity, or of maintaining 38 an office in the city, or of deriving receipts from activity in the 39 city, for all or any part of each of its fiscal or calendar years, every 40 domestic or foreign corporation, except corporations specified in subdi- 41 vision four of this section, shall annually pay a tax, upon the basis of 42 its business income, or upon such other basis as may be applicable as 43 hereinafter provided, for such fiscal or calendar year or part thereof, 44 on a report which shall be filed, except as hereinafter provided, on or 45 before the fifteenth day of March next succeeding the close of each such 46 year, or, in the case of a taxpayer which reports on the basis of a 47 fiscal year, within two and one-half months after the close of such 48 fiscal year, and shall be paid as hereinafter provided. 49 (b) A corporation is deriving receipts from activity in the city if it 50 has receipts within the city of one million dollars or more in a taxable 51 year. For purposes of this section, the term "receipts" means the 52 receipts that are subject to the allocation rules set forth in section 53 11-654.2 of this subchapter, and the term "receipts within the city" 54 means the receipts included in the numerator of the receipts fraction 55 determined under section 11-654.2 of this subchapter. For purposes ofS. 8474 610 1 this paragraph, receipts from processing credit card transactions for 2 merchants include merchant discount fees received by the corporation. 3 (c) A corporation is doing business in the city if (1) it has issued 4 credit cards to one thousand or more customers who have a mailing 5 address within the city as of the last day of its taxable year, (2) it 6 has merchant customer contracts with merchants and the total number of 7 locations covered by those contracts equals one thousand or more 8 locations in the city to whom the corporation remitted payments for 9 credit card transactions during the taxable year, or (3) the sum of the 10 number of customers described in subparagraph one of this paragraph plus 11 the number of locations covered by its contracts described in subpara- 12 graph two of this paragraph equals one thousand or more. As used in this 13 subdivision, the term "credit card" includes bank, credit, travel and 14 entertainment cards. 15 (d)(1) A corporation with less than one million dollars but at least 16 ten thousand dollars of receipts within the city in a taxable year that 17 is part of a unitary group that meets the ownership test under section 18 11-654.3 of this subchapter is deriving receipts from activity in the 19 city if the receipts within the city of the members of the unitary group 20 that have at least ten thousand dollars of receipts within the city in 21 the aggregate meet the threshold set forth in paragraph (b) of this 22 subdivision. 23 (2) A corporation that does not meet any of the thresholds set forth 24 in paragraph (c) of this subdivision but has at least ten customers, or 25 locations, or customers and locations, as described in paragraph (c) of 26 this subdivision, and is part of a unitary group that meets the owner- 27 ship test under section 11-654.3 of this subchapter, is doing business 28 in the city if the number of customers, locations, or customers and 29 locations, within the city of the members of the unitary group that have 30 at least ten customers, locations, or customers and locations, within 31 the city in the aggregate meets any of the thresholds set forth in para- 32 graph (c) of this subdivision. 33 (3) For purposes of this paragraph, any corporation described in para- 34 graph (c) of subdivision two of section 11-654.3 of this subchapter 35 shall not be considered. 36 (e) At the end of each year, the commissioner shall review the cumula- 37 tive percentage change in the consumer price index. The commissioner 38 shall adjust the receipt thresholds set forth in this subdivision if the 39 consumer price index has changed by ten percent or more since January 40 first, two thousand twenty-two, or since the date that the thresholds 41 were last adjusted under this subdivision. The thresholds shall be 42 adjusted to reflect the cumulative percentage change in the consumer 43 price index. The adjusted thresholds shall be rounded to the nearest one 44 thousand dollars. As used in this paragraph, "consumer price index" 45 means the consumer price index for all urban consumers (CPI-U) available 46 from the bureau of labor statistics of the United States department of 47 labor. Any adjustment shall apply to tax periods that begin after the 48 adjustment is made. 49 (f) If a partnership is doing business, employing capital, owning or 50 leasing property in the city, or maintaining an office in the city, or 51 deriving receipts from activity in the city, any corporation that is a 52 partner in such partnership shall be subject to tax under this subchap- 53 ter as described in the regulations of the commissioner of finance. 54 2. A foreign corporation shall not be deemed to be doing business, 55 employing capital, owning or leasing property, or maintaining an officeS. 8474 611 1 in the city, or deriving receipts from activity in the city, for the 2 purposes of this subchapter, by reason of: 3 (a) the maintenance of cash balances with banks or trust companies in 4 the city, or 5 (b) the ownership of shares of stock or securities kept in the city, 6 if kept in a safe deposit box, safe, vault or other receptacle rented 7 for the purpose, or if pledged as collateral security, or if deposited 8 with one or more banks or trust companies, or brokers who are members of 9 a recognized security exchange, in safekeeping or custody accounts, or 10 (c) the taking of any action by any such bank or trust company or 11 broker, which is incidental to the rendering of safekeeping or custodian 12 service to such corporation, or 13 (d) the maintenance of an office in the city by one or more officers 14 or directors of the corporation who are not employees of the corporation 15 if the corporation otherwise is not doing business in the city, and does 16 not employ capital or own or lease property in the city, or 17 (e) the keeping of books or records of a corporation in the city if 18 such books or records are not kept by employees of such corporation and 19 such corporation does not otherwise do business, employ capital, own or 20 lease property or maintain an office in the city, or 21 (f) any combination of such activities. 22 2-a. An alien corporation shall not be deemed to be doing business, 23 employing capital, owning or leasing property, or maintaining an office 24 in the city, or deriving receipts from activity in the city, for the 25 purposes of this subchapter, if its activities in the city are limited 26 solely to: 27 (a) investing or trading in stocks and securities for its own account 28 within the meaning of clause (ii) of subparagraph (A) of paragraph (2) 29 of subsection (b) of section eight hundred sixty-four of the internal 30 revenue code, or: 31 (b) investing or trading in commodities for its own account within the 32 meaning of clause (ii) of subparagraph (B) of paragraph (2) of 33 subsection (b) of section eight hundred sixty-four of the internal 34 revenue code, or 35 (c) any combination of activities described in paragraphs (a) and (b) 36 of this subdivision. 37 An alien corporation that under any provision of the internal revenue 38 code is not treated as a "domestic corporation" as defined in section 39 seven thousand seven hundred one of such code and has no effectively 40 connected income for the taxable year pursuant to clause three of the 41 opening paragraph of subdivision eight of section 11-652 of this 42 subchapter shall not be subject to tax under this subchapter for that 43 taxable year. For purposes of this subchapter, an alien corporation is a 44 corporation organized under the laws of a country, or any political 45 subdivision thereof, other than the United States, or organized under 46 the laws of a possession, territory or commonwealth of the United 47 States. 48 3. Any receiver, referee, trustee, assignee or other fiduciary, or any 49 officer or agent appointed by any court, who conducts the business of 50 any corporation, shall be subject to the tax imposed by this subchapter 51 in the same manner and to the same extent as if the business were 52 conducted by the agents or officers of such corporation. A dissolved 53 corporation which continues to conduct business shall also be subject to 54 the tax imposed by this subchapter. 55 4. (a) Corporations subject to tax under chapter eleven of this title, 56 any trust company organized under a law of this state all of the stockS. 8474 612 1 of which is owned by not less than twenty savings banks organized under 2 a law of this state, housing companies organized and operating pursuant 3 to the provisions of article two of the private housing finance law, 4 housing development fund companies organized pursuant to the provisions 5 of article eleven of the private housing finance law, corporations 6 described in section three of the tax law, a corporation principally 7 engaged in the operation of marine vessels whose activities in the city 8 are limited exclusively to the use of property in interstate or foreign 9 commerce, provided, however, such a corporation will not be subject to 10 tax under this subchapter solely because it maintains an office in the 11 city, or employs capital in the city, in connection with such use of 12 property, a corporation principally engaged in the conduct of a ferry 13 business and operating between any of the boroughs of the city under a 14 lease granted by the city and a corporation principally engaged in the 15 conduct of an aviation, steamboat, ferry or navigation business, or two 16 or more of such businesses, all of the capital stock of which is owned 17 by a municipal corporation of this state, shall not be subject to tax 18 under this subchapter; provided, however, that any corporation, other 19 than (1) a utility corporation subject to the supervision of the state 20 department of public service, and (2) for taxable years beginning on or 21 after August first, two thousand two, a utility as defined in subdivi- 22 sion six of section 11-1101 of this title, which is subject to tax under 23 chapter eleven of this title as a vendor of utility services, shall be 24 subject to tax under this subchapter, but in computing the tax imposed 25 by this section pursuant to the provisions of clause (i) of subparagraph 26 one of paragraph (e) of subdivision one of section 11-654 of this 27 subchapter, business income allocated to the city pursuant to paragraph 28 (a) of subdivision three of such section shall be reduced by the 29 percentage which such corporation's gross operating income subject to 30 tax under chapter eleven of this title is of its gross operating income. 31 (b) The term "gross operating income", when used in paragraph (a) of 32 this subdivision, means receipts received in or by reason of any trans- 33 action had and consummated in the city, including cash, credits and 34 property of any kind or nature, whether or not such transaction is made 35 for profit, without any deduction therefrom on account of the cost of 36 the property sold, the cost of materials used, labor or other services, 37 delivery costs or any other costs whatsoever, interest or discount paid 38 or any other expenses whatsoever. 39 (c) If it shall appear to the commissioner of finance that the appli- 40 cation of the provisions of paragraph (a) of this subdivision, does not 41 fairly and equitably reflect the portion of the taxpayer's business 42 income allocable to the city which is attributable to its city activ- 43 ities which are not taxable under chapter eleven of this title, the 44 commissioner of finance may prescribe other means or methods of deter- 45 mining such portion, including the use of the books and records of the 46 taxpayer, if the commissioner of finance finds that such means or meth- 47 ods used in keeping them fairly and equitably reflect such portion. 48 5. Intentionally omitted. 49 6. Intentionally omitted. 50 7. For any taxable year of a real estate investment trust, as defined 51 in section eight hundred fifty-six of the internal revenue code, in 52 which such trust is subject to federal income taxation under section 53 eight hundred fifty-seven of such code, such trust shall be subject to a 54 tax computed under either clause (i) of subparagraph one of paragraph 55 (e) of subdivision one of section 11-654 of this subchapter, or clause 56 (iv), whichever is greater. In the case of such a real estate investmentS. 8474 613 1 trust, including a captive REIT as defined in section 11-601 of this 2 chapter, the term "entire net income" means "real estate investment 3 trust taxable income" as defined in paragraph two of subdivision (b) of 4 section eight hundred fifty-seven, as modified by section eight hundred 5 fifty-eight, of the internal revenue code plus the amount taxable under 6 paragraph three of subdivision (b) of section eight hundred fifty-seven 7 of such code, subject to the modifications required by subdivision eight 8 of section 11-652 of this subchapter including the modifications 9 required by paragraphs (d) and (e) of subdivision three of section 10 11-654 of this subchapter. 11 8. For any taxable year of a regulated investment company, as defined 12 in section eight hundred fifty-one of the internal revenue code, in 13 which such company is subject to federal income taxation under section 14 eight hundred fifty-two of such code, such company shall be subject to a 15 tax computed under either clause one or four of subparagraph (a) of 16 paragraph E of subdivision one of section 11-654 of this subchapter, 17 whichever is greater. In the case of such a regulated investment compa- 18 ny, including a captive RIC as defined in section 11-601 of this chap- 19 ter, the term "entire net income" used in subdivision one of this 20 section means "investment company taxable income" as defined in para- 21 graph two of subdivision (b) of section eight hundred fifty-two, as 22 modified by section eight hundred fifty-five, of the internal revenue 23 code plus the amount taxable under paragraph three of subdivision (b) of 24 section eight hundred fifty-two of such code subject to the modifica- 25 tions required by subdivision eight of section 11-652 of this subchap- 26 ter, including the modification required by paragraphs (d) and (e) of 27 subdivision three of section 11-654 of this subchapter. 28 9. An organization described in paragraph two or twenty-five of 29 subsection (c) of section five hundred one of the internal revenue code 30 shall be exempt from all taxes imposed by this subchapter. 31 § 11-654 Computation of tax. 1. (a) Intentionally omitted. 32 (b) Intentionally omitted. 33 (c) Intentionally omitted. 34 (d) Intentionally omitted. 35 (e) The tax imposed by subdivision one of section 11-653 of this 36 subchapter shall be, in the case of each taxpayer: 37 (1) whichever of the following amounts is the greatest: 38 (i) an amount computed on its business income or the portion of such 39 business income allocated within the city as hereinafter provided, 40 subject to the application of paragraphs (j) and (k) of this subdivision 41 and any modification required by paragraphs (d) and (e) of subdivision 42 three of this section, at the rate of (1) nine per centum for financial 43 corporations, as defined in this clause, or (2) eight and eighty-five 44 one hundredths per centum for all other corporations. For purposes of 45 this clause, "financial corporation" means a corporation or, if the 46 corporation is included in a combined group, a combined group, that (A) 47 has total assets reflected on its balance sheet at the end of its taxa- 48 ble year in excess of one hundred billion dollars, computed under gener- 49 ally accepted accounting principles and (B)(I) allocates more than fifty 50 percent of the receipts included in the denominator of its receipts 51 fraction, determined under section 11-654.2 of this subchapter, pursuant 52 to subdivision five of section 11-654.2 of this subchapter for its taxa- 53 ble year, or (II) is itself or is included in a combined group in which 54 more than fifty percent of the total assets reflected on its balance 55 sheet at the end of its taxable year are held by one or more corpo- 56 rations that are classified as (a) registered under state law as a bankS. 8474 614 1 holding company or registered under the Federal Bank Holding Company Act 2 of 1956 (12 U.S.C. § 1841, et seq., as amended), or registered as a 3 savings and loan holding company under the Federal National Housing Act 4 (12 U.S.C. 1701, as amended), (b) a national bank organized and existing 5 as a national bank association pursuant to the provisions of the 6 National Bank Act, 12 U.S.C. 21 et. seq., (c) a savings association or 7 federal savings bank as defined in the Federal Deposit Insurance Act, 12 8 U.S.C. § 1813(b)(1), (d) a bank, savings association, or thrift institu- 9 tion incorporated or organized under the laws of any state, (e) a corpo- 10 ration organized under the provisions of 12 U.S.C. §§ 611 to 631, (f) an 11 agency or branch or a foreign depository as defined in 12 U.S.C. § 3101, 12 (g) a registered securities or commodities broker or dealer registered 13 as such by the securities and exchange commission or the commodities 14 futures trading commission, which shall include an OTC derivatives deal- 15 er as defined under regulations of the securities and exchange commis- 16 sion at title 17, part 240, section 3b-12 of the code of federal regu- 17 lations (17 CFR 240.3b-12), or (h) any corporation whose voting stock is 18 more than fifty percent owned, directly or indirectly, by any person or 19 business entity described in subitems (a) through (g) of this item, 20 other than an insurance company taxable under article thirty-three of 21 the tax law; or 22 (ii) an amount computed by multiplying its total business capital, or 23 the portion thereof allocated within the city, as hereinafter provided, 24 (A) except as provided in subclauses (B) and (C) of this clause, by 25 fifteen one-hundredths per centum; 26 (B) in the case of a cooperative housing corporation as defined in the 27 internal revenue code, by four one-hundredths per centum; 28 (C) in the case of the portion of total business capital directly 29 attributable to a corporation that is or would be taxable under chapter 30 eleven of this title, except for a vendor of utility services that is 31 taxable under both chapter eleven of this title and this subchapter, or 32 a corporation that would have been taxable as an insurance corporation 33 under former part IV, title R, chapter forty-six of the administrative 34 code of the city of New York as in effect on June thirtieth, nineteen 35 hundred seventy-four, by seven and one-half one-hundredths per centum; 36 and 37 (D) subtracting ten thousand dollars from the sum of the amount of tax 38 computed pursuant to subclauses (A), (B) and (C) of this clause, 39 provided that if such amount of tax is less than zero it shall be deemed 40 to be zero; and 41 (E) provided that in no event shall the amount of tax computed pursu- 42 ant to subclause (D) of this clause on the taxpayer's total business 43 capital, or the portion thereof allocated within the city, exceed ten 44 million dollars, or 45 (iii) Intentionally omitted. 46 (iv) If New York city receipts are: Fixed dollar minimum 47 tax is: 48 Not more than $100,000 $25 49 More than $100,000 but not over $250,000 $75 50 More than $250,000 but not over $500,000 $175 51 More than $500,000 but not over $1,000,000 $500 52 More than $1,000,000 but not over $5,000,000 $1,500 53 More than $5,000,000 but not over $25,000,000 $3,500 54 More than $25,000,000 but not over $50,000,000 $5,000 55 More than $50,000,000 but not over $100,000,000 $10,000S. 8474 615 1 More than $100,000,000 but not over $250,000,000 $20,000 2 More than $250,000,000 but not over $500,000,000 $50,000 3 More than $500,000,000 but not over $1,000,000,000 $100,000 4 Over $1,000,000,000 $200,000 5 For purposes of this clause, New York city receipts are the receipts 6 computed in accordance with section 11-654.2 of this subchapter for the 7 taxable year. If the taxable year is less than twelve months, the amount 8 prescribed by this clause shall be reduced by twenty-five percent if the 9 period for which the taxpayer is subject to tax is more than six months 10 but not more than nine months and by fifty percent if the period for 11 which the taxpayer is subject to tax is not more than six months. If the 12 taxable year is less than twelve months, the amount of New York city 13 receipts for purposes of this clause is determined by dividing the 14 amount of the receipts for the taxable year by the number of months in 15 the taxable year and multiplying the result by twelve. 16 (f) Intentionally omitted. 17 (g) Intentionally omitted. 18 (h) Intentionally omitted. 19 (i) Intentionally omitted. 20 (j) (1) If the amount of business income allocated within the city as 21 hereinafter provided is less than one million dollars, the amount 22 computed in clause (i) of subparagraph one of paragraph (e) of this 23 subdivision shall be at the rate of six and five-tenths per centum of 24 the amount of business income allocated within the city as hereinafter 25 provided, subject to any modification required by paragraphs (d) and (e) 26 of subdivision three of this section; 27 (2) Subject to subparagraph three of this paragraph, if the amount of 28 business income allocated within the city as hereinafter provided is one 29 million dollars or greater but less than one million five hundred thou- 30 sand dollars, the amount computed in clause (i) of subparagraph one of 31 paragraph (e) of this subdivision shall be at the rate of (i) six and 32 five-tenths per centum, plus (ii) two and thirty-five one-hundredths per 33 centum multiplied by a fraction the numerator of which is allocated 34 business income less one million dollars and the denominator of which is 35 five hundred thousand dollars, of the amount of business income allo- 36 cated within the city as hereinafter provided, subject to any modifica- 37 tion required by paragraphs (d) and (e) of subdivision three of this 38 section; 39 (3) Provided, however, notwithstanding anything to the contrary, if 40 the amount of business income before allocation is two million dollars 41 or greater but less than three million dollars, the rate of tax provided 42 for in this paragraph shall not be less than (i) six and five-tenths per 43 centum, plus (ii) two and thirty-five one-hundredths per centum multi- 44 plied by a fraction the numerator of which is business income before 45 allocation less two million dollars and the denominator of which is one 46 million dollars, and provided, however, notwithstanding anything to the 47 contrary, if the amount of business income before allocation is three 48 million dollars or greater, the rate of tax shall be eight and eighty- 49 five one-hundredths percentum or, in the case of a financial corpo- 50 ration, as defined in clause (i) of subparagraph one of paragraph (e) of 51 subdivision one of section 11-654, if the amount of business income 52 before allocation is three million dollars or greater the rate of tax 53 shall be nine per centum. 54 (k)(1) For qualified New York manufacturing corporations as defined in 55 subparagraph four of this paragraph, if the amount of business incomeS. 8474 616 1 allocated within the city as hereinafter provided is less than ten 2 million dollars, the amount computed in clause (i) of subparagraph one 3 of paragraph (e) of this subdivision shall be at the rate of four and 4 four hundred twenty-five one thousandths per centum, of its business 5 income allocated within the city as hereinafter provided, subject to any 6 modification required by paragraphs (d) and (e) of subdivision three of 7 this section; 8 (2) Subject to subparagraph three of this paragraph for qualified New 9 York manufacturing corporations as defined in subparagraph four of this 10 paragraph, if the amount of business income allocated within the city as 11 hereinafter provided is ten million dollars or greater but less than 12 twenty million dollars, the amount computed in clause (i) of subpara- 13 graph one of paragraph (e) of this subdivision shall be at the rate of 14 (i) four and four hundred twenty-five one-thousandths per centum, plus 15 (ii) four and four hundred twenty-five one-thousandths per centum multi- 16 plied by a fraction the numerator of which is allocated business income 17 less ten million dollars and the denominator of which is ten million 18 dollars, of its business income or the portion of such business income 19 allocated within the city as hereinafter provided, subject to any 20 modification required by paragraphs (d) and (e) of subdivision three of 21 this section; 22 (3) Notwithstanding anything to the contrary, if the amount of busi- 23 ness income before allocation is twenty million dollars or greater but 24 less than forty million dollars, the rate of tax provided for in this 25 paragraph shall not be less than (i) four and four hundred twenty-five 26 one-thousandths per centum, plus (ii) four and four hundred twenty-five 27 one-thousandths per centum multiplied by a fraction the numerator of 28 which is business income before allocation less twenty million dollars 29 and the denominator of which is twenty million dollars, and provided, 30 however, notwithstanding anything to the contrary, if the amount of 31 business income before allocation is forty million dollars or greater, 32 the rate of tax shall be eight and eighty-five one-hundredths per 33 centum. 34 (4)(i) As used in this subparagraph, the term "manufacturing corpo- 35 ration" means a corporation principally engaged in the manufacturing and 36 sale thereof of tangible personal property; and the term "manufacturing" 37 includes the process, including the assembly process (A) of working raw 38 materials into wares suitable for use or (B) which gives new shapes, new 39 qualities or new combinations to matter which already has gone through 40 some artificial process, by the use of machinery, tools, appliances and 41 other similar equipment. Moreover, in the case of a combined report, a 42 combined group shall be considered a "manufacturing corporation" for 43 purposes of this subparagraph only if the combined group during the 44 taxable year is principally engaged in the activities set forth in this 45 paragraph, or any combination thereof. A taxpayer or, in the case of a 46 combined report, a combined group, shall be "principally engaged" in 47 activities described in this subparagraph if, during the taxable year, 48 more than fifty percent of the gross receipts of the taxpayer or 49 combined group, respectively, are derived from receipts from the sale of 50 goods produced by such activities. In computing a combined group's gross 51 receipts, intercorporate receipts shall be eliminated. 52 (ii) A "qualified New York manufacturing corporation" is a manufactur- 53 ing corporation that has property in the state that is described in 54 subparagraph five of this paragraph and either (A) the adjusted basis of 55 such property for New York state tax purposes at the close of the taxa-S. 8474 617 1 ble year is at least one million dollars or (B) more than fifty percent 2 of its real and personal property is located in the state. 3 (5) For purposes of subclause (A) of clause (ii) of subparagraph four 4 of this paragraph, property includes tangible personal property and 5 other tangible property, including buildings and structural components 6 of buildings, which are: depreciable pursuant to section one hundred 7 sixty-seven of the internal revenue code, have a useful life of four 8 years or more, are acquired by purchase as defined in subsection (d) of 9 section one hundred seventy-nine of the internal revenue code, have a 10 situs in the state and are principally used by the taxpayer in the 11 production of goods by manufacturing. Property used in the production of 12 goods shall include machinery, equipment or other tangible property 13 which is principally used in the repair and service of other machinery, 14 equipment or other tangible property used principally in the production 15 of goods and shall include all facilities used in the production opera- 16 tion, including storage of material to be used in production and of the 17 products that are produced. 18 2. The amount of investment capital and business capital shall be 19 determined by taking the average value of the gross assets included 20 therein, less liabilities deductible therefrom pursuant to the 21 provisions of subdivisions four and six of section 11-652 of this 22 subchapter, and, if the period covered by the report is other than a 23 period of twelve calendar months, by multiplying such value by the 24 number of calendar months or major parts thereof included in such peri- 25 od, and dividing the product thus obtained by twelve. For purposes of 26 this subdivision, real property and marketable securities shall be 27 valued at fair market value and the value of personal property other 28 than marketable securities shall be the value thereof shown on the books 29 and records of the taxpayer in accordance with generally accepted 30 accounting principles. 31 3. The portion of the business income of a taxpayer to be allocated to 32 the city shall be determined as follows: 33 (a) multiply its business income by a business allocation percentage 34 to be determined by: 35 (1) ascertaining the percentage which the average value of the taxpay- 36 er's real and tangible personal property, whether owned or rented to it, 37 within the city during the period covered by its report bears to the 38 average value of all the taxpayer's real and tangible personal property, 39 whether owned or rented to it, wherever situated during such period. For 40 the purpose of this subparagraph, the term "value of the taxpayer's real 41 and tangible personal property" shall mean the adjusted bases of such 42 properties for federal income tax purposes, except that in the case of 43 rented property such value shall mean the product of (i) eight and (ii) 44 the gross rents payable for the rental of such property during the taxa- 45 ble year; provided, however, that the taxpayer may make a one-time, 46 revocable election, pursuant to regulations promulgated by the commis- 47 sioner of finance to use fair market value as the value of all of its 48 real and tangible personal property, provided that such election is made 49 on or before the due date for filing a report under section 11-655 of 50 this subchapter for the taxpayer's first taxable year commencing on or 51 after January first, two thousand fifteen and provided that such 52 election shall not apply to any taxable year with respect to which the 53 taxpayer is included on a combined report unless each of the taxpayers 54 included on such report has made such an election which remains in 55 effect for such year or to any taxpayer that was subject to tax under 56 subchapter two of this chapter and did not have an election in effectS. 8474 618 1 under subparagraph one of paragraph (a) of subdivision three of section 2 11-604 of this chapter on December thirty-first, two thousand fourteen; 3 (2) ascertaining the percentage determined under section 11-654.2 of 4 this subchapter; 5 (3) ascertaining the percentage of the total wages, salaries and other 6 personal service compensation, similarly computed, during such period of 7 employees within the city, except general executive officers, to the 8 total wages, salaries and other personal service compensation, similarly 9 computed, during such period of all the taxpayer's employees within and 10 without the city, except general executive officers; and 11 (4) adding together the percentages so determined and dividing the 12 result by the number of percentages. 13 (5) Intentionally omitted. 14 (6) Intentionally omitted. 15 (7) Intentionally omitted. 16 (8) Intentionally omitted. 17 (9) Intentionally omitted. 18 (10) Notwithstanding subparagraphs one through four of this paragraph, 19 the business allocation percentage, to the extent that it is computed by 20 reference to the percentages determined under subparagraphs one, two and 21 three of this paragraph, shall be computed in the manner set forth in 22 this subparagraph. 23 (i) Intentionally omitted. 24 (ii) Intentionally omitted. 25 (iii) Intentionally omitted. 26 (iv) Intentionally omitted. 27 (v) Intentionally omitted. 28 (vi) Intentionally omitted. 29 (vii) For taxable years beginning in two thousand fifteen, the busi- 30 ness allocation percentage shall be determined by adding together the 31 following percentages: 32 (A) the product of ten percent and the percentage determined under 33 subparagraph one of this paragraph; 34 (B) the product of eighty percent and the percentage determined under 35 subparagraph two of this paragraph; and 36 (C) the product of ten percent and the percentage determined under 37 subparagraph three of this paragraph. 38 (viii) For taxable years beginning in two thousand sixteen, the busi- 39 ness allocation percentage shall be determined by adding together the 40 following percentages: 41 (A) the product of six and one-half percent and the percentage deter- 42 mined under subparagraph one of this paragraph; 43 (B) the product of eighty-seven percent and the percentage determined 44 under subparagraph two of this paragraph; and 45 (C) the product of six and one-half percent and the percentage deter- 46 mined under subparagraph three of this paragraph. 47 (ix) For taxable years beginning in two thousand seventeen, the busi- 48 ness allocation percentage shall be determined by adding together the 49 following percentages: 50 (A) the product of three and one-half percent and the percentage 51 determined under subparagraph one of this paragraph; 52 (B) the product of ninety-three percent and the percentage determined 53 under subparagraph two of this paragraph; and 54 (C) the product of three and one-half percent and the percentage 55 determined under subparagraph three of this paragraph.S. 8474 619 1 (x) For taxable years beginning after two thousand seventeen, the 2 business allocation percentage shall be the percentage determined under 3 subparagraph two of this paragraph. 4 (xi) The commissioner of finance shall promulgate rules necessary to 5 implement the provisions of this subparagraph under such circumstances 6 where any of the percentages to be determined under subparagraph one, 7 two or three of this paragraph cannot be determined because the taxpayer 8 has no property, receipts or wages within or without the city. 9 (xii) Notwithstanding the provisions of clauses (viii), (ix), and (x) 10 of this subparagraph, for taxable years beginning on or after January 11 first, two thousand eighteen, a taxpayer that has fifty million dollars 12 or less of receipts allocated to the city as determined under section 13 11-654.2 of this subchapter, or, if the taxpayer is included in a 14 combined group, a combined group that has fifty million dollars or less 15 of receipts allocated to the city as determined under section 11-654.2 16 of this subchapter, may make a one-time election to determine its busi- 17 ness allocation percentage by adding together the following percentages: 18 (A) the product of three and one-half percent and the percentage 19 determined under subparagraph one of this paragraph; 20 (B) the product of ninety-three percent and the percentage determined 21 under subparagraph two of this paragraph; and 22 (C) the product of three and one-half percent and the percentage 23 determined under subparagraph three of this paragraph. 24 The election provided for in this clause must be made on an original 25 or amended report filed pursuant to section 11-655 of this subchapter 26 for the taxpayer's or, if the taxpayer is included in a combined group, 27 the combined group's, first taxable year commencing on or after January 28 first, two thousand eighteen and shall remain in effect until revoked by 29 the taxpayer, or if the taxpayer is included in a combined group, the 30 combined group. An election shall be revoked under this clause on an 31 original or amended report filed pursuant to section 11-655 of this 32 subchapter for the taxpayer's, or if the taxpayer is included in a 33 combined group, the combined group's, first taxable year with respect to 34 which such revocation is to be effective. If the taxpayer is a member of 35 a combined group, an election or revocation by the taxpayer under this 36 clause shall apply to all members of the combined group. 37 (11) A foreign air carrier described in the first sentence of subpara- 38 graph one of paragraph (c-1) of subdivision eight of section 11-652 of 39 this subchapter shall determine its business allocation percentage 40 pursuant to subparagraphs one through four of this paragraph, as modi- 41 fied by subparagraph ten of this paragraph, except that the numerators 42 and denominators involved in such computation shall exclude property to 43 the extent employed in generating income excluded from entire net income 44 for the taxable year pursuant to paragraph (c-1) of subdivision eight of 45 section 11-652 of this subchapter, exclude such receipts as are excluded 46 from entire net income for the taxable year pursuant to paragraph (c-1) 47 of subdivision eight of section 11-652 of this subchapter, and exclude 48 wages, salaries or other personal service compensation which are direct- 49 ly attributable to the generation of income excluded from entire net 50 income for the taxable year pursuant to paragraph (c-1) of subdivision 51 eight of section 11-652 of this subchapter. 52 (b) Intentionally omitted. 53 (c) Intentionally omitted. 54 (d) In any taxable year when property is sold or otherwise disposed 55 of, with respect to which a deduction has been allowed pursuant to 56 subparagraph one or two of paragraph (d) of subdivision three of sectionS. 8474 620 1 11-604 of this chapter or subdivision (k) of section 11-641 of this 2 chapter in any period in which the taxpayer was subject to tax under 3 subchapter two of this chapter, the gain or loss thereon entering into 4 the computation of federal taxable income shall be disregarded in 5 computing entire net income, and there shall be added to or subtracted 6 from the portion of entire net income allocated within the city the gain 7 or loss upon such sale or other disposition. In computing such gain or 8 loss the basis of the property sold or disposed of shall be adjusted to 9 reflect the deduction allowed with respect to such property pursuant to 10 subparagraph one or two of paragraph (d) of subdivision three of section 11 11-604 of this chapter. Provided, however, that no loss shall be recog- 12 nized for the purposes of this subparagraph with respect to a sale or 13 other disposition of property to a person whose acquisition thereof is 14 not a purchase as defined in subsection (d) of section one hundred 15 seventy-nine of the internal revenue code. 16 (e) In any taxable year when property is sold or otherwise disposed 17 of, with respect to which a deduction has been allowed pursuant to 18 subparagraph one or two of paragraph (e) of subdivision three of section 19 11-604 of this chapter in any period the taxpayer was subject to tax 20 under subchapter two of this chapter, the gain or loss thereon entering 21 into the computation of federal taxable income shall be disregarded in 22 computing entire net income, and there shall be added to or subtracted 23 from the portion of entire net income allocated within the city the gain 24 or loss upon such sale or other disposition. In computing such gain or 25 loss the basis of the property sold or disposed of shall be adjusted to 26 reflect the deduction allowed with respect to such property pursuant to 27 subparagraph one or two of paragraph (e) of subdivision three of section 28 11-604 of this chapter. Provided, however, that no loss shall be recog- 29 nized for the purposes of this subparagraph with respect to a sale or 30 other disposition of property to a person whose acquisition thereof is 31 not a purchase as defined in subsection (d) of section one hundred 32 seventy-nine of the internal revenue code. 33 4. The portion of the business capital of a taxpayer to be allocated 34 within the city shall be determined by multiplying the amount thereof by 35 the business allocation percentage determined as hereinabove provided. 36 4-a. A corporation that is a partner in a partnership shall compute 37 tax under this subchapter using any method required or permitted in 38 regulations of the commissioner of finance. 39 5. Intentionally omitted. 40 6. Intentionally omitted. 41 7. Intentionally omitted. 42 8. Intentionally omitted. 43 9. If it shall appear to the commissioner of finance that any business 44 allocation percentage determined as hereinabove provided does not prop- 45 erly reflect the activity, business, income or capital of a taxpayer 46 within the city, the commissioner of finance shall be authorized in his 47 or her discretion to adjust it, or the taxpayer may request that the 48 commissioner of finance adjust it, by (a) excluding one or more of the 49 factors therein, (b) including one or more other factors, such as 50 expenses, purchases, contract values, minus subcontract values, (c) 51 excluding one or more assets in computing such allocation percentage, 52 provided the income therefrom, is also excluded in determining entire 53 net income, or (d) any other similar or different method calculated to 54 effect a fair and proper allocation of the income and capital reasonably 55 attributable to the city. The party seeking the adjustment shall bear 56 the burden of proof to demonstrate that the business allocation percent-S. 8474 621 1 age determined pursuant to this section does not result in a proper 2 reflection of the taxpayer's income or capital within the city and that 3 the proposed adjustment is appropriate. The commissioner of finance from 4 time to time shall publish all rulings of general public interest with 5 respect to any application of the provisions of this subdivision. 6 10. Intentionally omitted. 7 11. Intentionally omitted. 8 12. Intentionally omitted. 9 13. (a) In addition to any other credit allowed by this section, a 10 taxpayer shall be allowed a credit against the tax imposed by this 11 subchapter to be credited or refunded without interest, in the manner 12 hereinafter provided in this section. 13 (1)(i) Where a taxpayer shall have relocated to the city from a 14 location outside the state, and by such relocation shall have created a 15 minimum of one hundred industrial or commercial employment opportu- 16 nities; and where such taxpayer shall have entered into a written lease 17 for the relocation premises, the terms of which lease provide for 18 increased additional payments to the landlord which are based solely and 19 directly upon any increase or addition in real estate taxes imposed on 20 the leased premises, the taxpayer upon approval and certification by the 21 industrial and commercial incentive board as hereinafter provided shall 22 be entitled to a credit against the tax imposed by this subchapter. The 23 amount of such credit shall be an amount equal to the annual increased 24 payments actually made by the taxpayer to the landlord which are solely 25 and directly attributable to an increase or addition to the real estate 26 tax imposed upon the leased premises. Such credit shall be allowed only 27 to the extent that the taxpayer has not otherwise claimed said amount as 28 a deduction against the tax imposed by this subchapter. 29 (ii) The industrial and commercial incentive board in approving and 30 certifying to the qualifications of the taxpayer to receive such tax 31 credit shall first determine that the applicant has met the requirements 32 of this section, and further, that the granting of the tax credit to the 33 applicant is in the "public interest". In determining that the granting 34 of the tax credit is in the public interest, the board shall make affir- 35 mative findings that: the granting of the tax credit to the applicant 36 will not effect an undue hardship on similar taxpayers already located 37 within the city; the existence of this tax incentive has been instru- 38 mental in bringing about the relocation of the applicant to the city; 39 and the granting of the tax credit will foster the economic recovery and 40 economic development of the city. 41 (iii) The tax credit, if approved and certified by the industrial and 42 commercial incentive board, must be utilized annually by the taxpayer 43 for the length of the term of the lease or for a period not to exceed 44 ten years from the date of relocation whichever period is shorter. 45 (2) When used in this subdivision: 46 (i) "Employment opportunity" means the creation of a full time posi- 47 tion of gainful employment for an industrial or commercial employee and 48 the actual hiring of such employee for the said position. 49 (ii) "Industrial employee" means one engaged in the manufacture or 50 assembling of tangible goods or the processing of raw materials. 51 (iii) "Commercial employee" means one engaged in the buying, selling 52 or otherwise providing of goods or services other than on a retail 53 basis. 54 (iv) "Retail" means the selling or otherwise disposing or furnishing 55 of tangible goods or services directly to the ultimate user or consumer.S. 8474 622 1 (v) "Full time position" means the hiring of an industrial or commer- 2 cial employee in a position of gainful employment where the number of 3 hours worked by such employees is not less than thirty hours during any 4 given work week. 5 (vi) "Industrial and commercial incentive board" means the board 6 created pursuant to part three of subchapter two of chapter two of this 7 title. 8 (b) The credit allowed under this subdivision for any taxable year 9 shall be deemed to be an overpayment of tax by the taxpayer to be cred- 10 ited or refunded, without interest, in accordance with the provisions of 11 section 11-677 of this chapter. 12 14. (a) In addition to any other credit allowed by this section, a 13 taxpayer shall be allowed a credit against the tax imposed by this 14 subchapter to be credited or refunded without interest, in the manner 15 hereinafter provided in this section. The amount of such credit shall 16 be: 17 (1) A maximum of three hundred dollars for each commercial employment 18 opportunity and a maximum of five hundred dollars for each industrial 19 employment opportunity relocated to the city from an area outside the 20 state. Such credit shall be allowed to a taxpayer who relocates a mini- 21 mum of ten employment opportunities. The credit shall be allowed against 22 employment opportunity relocation costs incurred by the taxpayer. Such 23 credit shall be allowed only to the extent that the taxpayer has not 24 claimed a deduction for allowable employment opportunity relocation 25 costs. The credit allowed hereunder may be taken by the taxpayer in 26 whole or in part in the year in which the employment opportunity is 27 relocated by such taxpayer or either of the two years succeeding such 28 event, provided, however, no credit shall be allowed under this subdivi- 29 sion to a taxpayer for industrial employment opportunities relocated to 30 premises (i) that are within an industrial business zone established 31 pursuant to section 22-626 of the code of the preceding municipality and 32 (ii) for which a binding contract to purchase or lease was first entered 33 into by the taxpayer on or after July first, two thousand five. 34 The commissioner of finance is empowered to promulgate rules and regu- 35 lations and to prescribe the form of application to be used by a taxpay- 36 er seeking the such credit. 37 (2) When used in this subdivision: 38 (i) "Employment opportunity" means the creation of a full time posi- 39 tion of gainful employment for an industrial or commercial employee and 40 the actual hiring of such employee for the said position. 41 (ii) "Industrial employee" means one engaged in the manufacture or 42 assembling of tangible goods or the processing of raw materials. 43 (iii) "Commercial employee" means one engaged in the buying, selling 44 or otherwise providing of goods or services other than on a retail 45 basis. 46 (iv) "Retail" means the selling or otherwise disposing of tangible 47 goods directly to the ultimate user or consumer. 48 (v) "Full time position" means the hiring of an industrial or commer- 49 cial employee in a position of gainful employment where the number of 50 hours worked by such employee is not less than thirty hours during any 51 given work week. 52 (vi) "Employment opportunity relocation costs" means the costs 53 incurred by the taxpayer in moving furniture, files, papers and office 54 equipment into the city from a location outside the state; the costs 55 incurred by the taxpayer in the moving and installation of machinery and 56 equipment into the city from a location outside the state; the costs ofS. 8474 623 1 installation of telephones and other communications equipment required 2 as a result of the relocation to the city from a location outside the 3 state; the cost incurred in the purchase of office furniture and 4 fixtures required as a result of the relocation to the city from a 5 location outside the state; and the cost of renovation of the premises 6 to be occupied as a result of the relocation; provided, however, that 7 such renovation costs shall be allowable only to the extent that they do 8 not exceed seventy-five cents per square foot of the total area utilized 9 by the taxpayer in the occupied premises. 10 (b) The credit allowed under this section for any taxable year shall 11 be deemed to be an overpayment of tax by the taxpayer to be credited or 12 refunded without interest in accordance with the provisions of section 13 11-677 of this chapter. 14 (c) Notwithstanding any other provision of this subdivision to the 15 contrary, in the case of a taxpayer that has received, in a taxable year 16 beginning before January first, two thousand fifteen, the credit set 17 forth in subdivision fourteen of section 11-604 of this chapter for an 18 eligible employment relocation, a credit shall be allowed to the taxpay- 19 er under this subdivision for any tax year beginning on or after January 20 first, two thousand fifteen, in the same amount and to the same extent 21 that a credit, or the unused portion thereof, would have been allowed 22 under subdivision fourteen of section 11-604 of this chapter, as in 23 effect on December thirty-first, two thousand fourteen, if such subdivi- 24 sion continued to apply to the taxpayer for such taxable year. 25 15. Intentionally omitted. 26 16. Intentionally omitted. 27 17. (a) In addition to any other credit allowed by this section, a 28 taxpayer that has obtained the certifications required by chapter six-B 29 of title twenty-two of the code of the preceding municipality shall be 30 allowed a credit against the tax imposed by this subchapter. The amount 31 of the credit shall be the amount determined by multiplying five hundred 32 dollars or, in the case of a taxpayer that has obtained pursuant to 33 chapter six-B of such title twenty-two a certification of eligibility 34 dated on or after July first, nineteen hundred ninety-five, one thousand 35 dollars or, in the case of an eligible business that has obtained pursu- 36 ant to chapter six-B of such title twenty-two a certification of eligi- 37 bility dated on or after July first, two thousand, for a relocation to 38 eligible premises located within a revitalization area defined in subdi- 39 vision (n) of section 22-621 of the code of the preceding municipality, 40 three thousand dollars, by the number of eligible aggregate employment 41 shares maintained by the taxpayer during the taxable year with respect 42 to particular premises to which the taxpayer has relocated; provided, 43 however, with respect to a relocation for which no application for a 44 certificate of eligibility is submitted prior to July first, two thou- 45 sand three, to eligible premises that are not within a revitalization 46 area, if the date of such relocation as determined pursuant to subdivi- 47 sion (j) of section 22-621 of the code of the preceding municipality is 48 before July first, nineteen hundred ninety-five, the amount to be multi- 49 plied by the number of eligible aggregate employment shares shall be 50 five hundred dollars, and with respect to a relocation for which no 51 application for a certificate of eligibility is submitted prior to July 52 first, two thousand three, to eligible premises that are within a revi- 53 talization area, if the date of such relocation as determined pursuant 54 to subdivision (j) of such section is before July first, nineteen 55 hundred ninety-five, the amount to be multiplied by the number of eligi- 56 ble aggregate employment shares shall be five hundred dollars, and ifS. 8474 624 1 the date of such relocation as determined pursuant to subdivision (j) of 2 such section is on or after July first, nineteen hundred ninety-five, 3 and before July first, two thousand, one thousand dollars; provided, 4 however, that no credit shall be allowed for the relocation of any 5 retail activity or hotel services; provided, further, that no credit 6 shall be allowed under this subdivision to any taxpayer that has elected 7 pursuant to subdivision (d) of section 22-622 of the code of the preced- 8 ing municipality to take such credit against a gross receipts tax 9 imposed by chapter eleven of this title; and provided that in the case 10 of an eligible business that has obtained pursuant to chapter six-B of 11 such title twenty-two certifications of eligibility for more than one 12 relocation, the portion of the total amount of eligible aggregate 13 employment shares to be multiplied by the dollar amount specified in 14 this subdivision for each such certification of a relocation shall be 15 the number of total attributed eligible aggregate employment shares 16 determined with respect to such relocation pursuant to subdivision (o) 17 of section 22-621 of the code of the preceding municipality. For 18 purposes of this subdivision, the terms "eligible aggregate employment 19 shares," "relocate," "retail activity" and "hotel services" shall have 20 the meanings ascribed by section 22-621 of the code of the preceding 21 municipality. 22 (b) The credit allowed under this subdivision with respect to eligible 23 aggregate employment shares maintained with respect to particular prem- 24 ises to which the taxpayer has relocated shall be allowed for the first 25 taxable year during which such eligible aggregate employment shares are 26 maintained with respect to such premises and for any of the twelve 27 succeeding taxable years during which eligible aggregate employment 28 shares are maintained with respect to such premises; provided that the 29 credit allowed for the twelfth succeeding taxable year shall be calcu- 30 lated by multiplying the number of eligible aggregate employment shares 31 maintained with respect to such premises in the twelfth succeeding taxa- 32 ble year by the lesser of one and a fraction the numerator of which is 33 such number of days in the taxable year of relocation less the number of 34 days the eligible business maintained employment shares in the eligible 35 premises in the taxable year of relocation and the denominator of which 36 is the number of days in such twelfth succeeding taxable year during 37 which such eligible aggregate employment shares are maintained with 38 respect to such premises. Except as provided in paragraph (d) of this 39 subdivision, if the amount of the credit allowable under this subdivi- 40 sion for any taxable year exceeds the tax imposed for such year, the 41 excess may be carried over, in order, to the five immediately succeeding 42 taxable years and, to the extent not previously deductible, may be 43 deducted from the taxpayer's tax for such years. 44 (c) The credit allowable under this subdivision shall be deducted 45 after the credit allowed by subdivision eighteen of this section, but 46 prior to the deduction of any other credit allowed by this section. 47 (d) In the case of a taxpayer that has obtained a certification of 48 eligibility pursuant to chapter six-B of title twenty-two of the code of 49 the preceding municipality dated on or after July first, two thousand 50 for a relocation to eligible premises located within the revitalization 51 area defined in subdivision (n) of section 22-621 of the code of the 52 preceding municipality, the credits allowed under this subdivision, or 53 in the case of a taxpayer that has relocated more than once, the portion 54 of such credits attributed to such certification of eligibility pursuant 55 to paragraph (a) of this subdivision, against the tax imposed by this 56 chapter for the taxable year of such relocation and for the four taxableS. 8474 625 1 years immediately succeeding the taxable year of such relocation, shall 2 be deemed to be overpayments of tax by the taxpayer to be credited or 3 refunded, without interest, in accordance with the provisions of section 4 11-677 of this chapter. For such taxable years, such credits or portions 5 thereof may not be carried over to any succeeding taxable year; 6 provided, however, that this paragraph shall not apply to any relocation 7 for which an application for a certification of eligibility was not 8 submitted prior to July first, two thousand three, unless the date of 9 such relocation is on or after July first, two thousand. 10 (e) Notwithstanding any other provision of this subdivision to the 11 contrary, in the case of a taxpayer that has obtained, pursuant to chap- 12 ter six-B of title twenty-two of the code of the preceding municipality, 13 a certification of eligibility and has received, in a taxable year 14 beginning before January first, two thousand fifteen, the credit set 15 forth in subdivision seventeen of section 11-604 of this chapter or 16 section 11-643.7 of this chapter for the relocation of an eligible busi- 17 ness, a credit shall be allowed under this subdivision to the taxpayer 18 for any taxable year beginning on or after January first, two thousand 19 fifteen in the same amount and to the same extent that a credit would 20 have been allowed under subdivision seventeen of section 11-604 of this 21 chapter or section 11-643.7 of this chapter, as in effect on December 22 thirty-first, two thousand fourteen, if such subdivision continued to 23 apply to the taxpayer for such taxable year. 24 17-a. Intentionally omitted. 25 17-b. (a) In addition to any other credit allowed by this section, an 26 eligible business that first enters into a binding contract on or after 27 July first, two thousand five to purchase or lease eligible premises to 28 which it relocates shall be allowed a one-time credit against the tax 29 imposed by this subchapter to be credited or refunded in the manner 30 hereinafter provided in this subdivision. The amount of such credit 31 shall be one thousand dollars per full-time employee; provided, however, 32 that the amount of such credit shall not exceed the lesser of actual 33 relocation costs or one hundred thousand dollars. 34 (b) When used in this subdivision, the following terms shall have the 35 following meanings: 36 (1) "Eligible business" means any business subject to tax under this 37 subchapter that (i) has been conducting substantial business operations 38 and engaging primarily in industrial and manufacturing activities at one 39 or more locations within the city of New York or outside the state of 40 New York continuously during the twenty-four consecutive full months 41 immediately preceding relocation, (ii) has leased the premises from 42 which it relocates continuously during the twenty-four consecutive full 43 months immediately preceding relocation, (iii) first enters into a bind- 44 ing contract on or after July first, two thousand five to purchase or 45 lease eligible premises to which such business will relocate, and (iv) 46 will be engaged primarily in industrial and manufacturing activities at 47 such eligible premises. 48 (2) "Eligible premises" means premises located entirely within an 49 industrial business zone. For any eligible business, an industrial busi- 50 ness zone tax credit shall not be granted with respect to more than one 51 eligible premises. 52 (3) "Full-time employee" means (i) one person gainfully employed in an 53 eligible premises by an eligible business where the number of hours 54 required to be worked by such person is not less than thirty-five hours 55 per week; or (ii) two persons gainfully employed in an eligible premises 56 by an eligible business where the number of hours required to be workedS. 8474 626 1 by each such person is more than fifteen hours per week but less than 2 thirty-five hours per week. 3 (4) "Industrial business zone" means an area within the city of New 4 York established pursuant to section 22-626 of the code of the preceding 5 municipality. 6 (5) "Industrial business zone tax credit" means a credit, as provided 7 for in this subdivision, against a tax imposed under this subchapter. 8 (6) "Industrial and manufacturing activities" means activities involv- 9 ing the assembly of goods to create a different article, or the process- 10 ing, fabrication, or packaging of goods. Industrial and manufacturing 11 activities shall not include waste management or utility services. 12 (7) "Relocation" means the physical relocation of furniture, fixtures, 13 equipment, machinery and supplies directly to an eligible premises, from 14 one or more locations of an eligible business, including at least one 15 location at which such business conducts substantial business operations 16 and engages primarily in industrial and manufacturing activities. For 17 purposes of this subdivision, the date of relocation shall be (i) the 18 date of the completion of the relocation to the eligible premises or 19 (ii) ninety days from the commencement of the relocation to the eligible 20 premises, whichever is earlier. 21 (8) "Relocation costs" means costs incurred in the relocation of such 22 furniture, fixtures, equipment, machinery and supplies, including, but 23 not limited to, the cost of dismantling and reassembling equipment and 24 the cost of floor preparation necessary for the reassembly of the equip- 25 ment. Relocation costs shall include only such costs that are incurred 26 during the ninety-day period immediately following the commencement of 27 the relocation to an eligible premises. Relocation costs shall not 28 include costs for structural or capital improvements or items purchased 29 in connection with the relocation. 30 (c) The credit allowed under this subdivision for any taxable year 31 shall be deemed to be an overpayment of tax by the taxpayer to be cred- 32 ited or refunded without interest, in accordance with the provisions of 33 section 11-677 of this chapter. 34 (d) The number of full-time employees for the purposes of calculating 35 an industrial business tax credit shall be the average number of full- 36 time employees, calculated on a weekly basis, employed in the eligible 37 premises by the eligible business in the fifty-two week period imme- 38 diately following the earlier of (1) the date of the completion of the 39 relocation to eligible premises or (2) ninety days from the commencement 40 of the relocation to the eligible premises. 41 (e) The credit allowed under this subdivision must be taken by the 42 taxpayer in the taxable year in which such twelve month period selected 43 by the taxpayer ends. 44 (f) For the purposes of calculating entire net income in the taxable 45 year that an industrial business tax credit is allowed, a taxpayer must 46 add back the amount of the credit allowed under this subdivision, to the 47 extent of any relocation costs deducted in the current taxable year or a 48 prior taxable year in calculating federal taxable income. 49 (g) The credit allowed under this subdivision shall not be granted for 50 an eligible business for more than one relocation, provided, however, an 51 industrial business tax credit shall not be granted if the eligible 52 business receives benefits pursuant to chapter six-B or six-C of title 53 twenty-two of the code of the preceding municipality, through a grant 54 program administered by the business relocation assistance corporation, 55 or through the New York city printers relocation fund grant.S. 8474 627 1 (h) The commissioner of finance is authorized to promulgate rules and 2 regulations and to prescribe forms necessary to effectuate the purposes 3 of this subdivision. 4 18. (a) If a corporation is a partner in an unincorporated business 5 taxable under chapter five of this title, and is required to include in 6 entire net income its distributive share of income, gain, loss and 7 deductions of, or guaranteed payments from, such unincorporated busi- 8 ness, such corporation shall be allowed a credit against the tax imposed 9 by this subchapter equal to the lesser of the amounts determined in 10 subparagraphs one and two of this paragraph: 11 (1) The amount determined in this subparagraph is the product of (i) 12 the sum of (A) the tax imposed by chapter five of this title on the 13 unincorporated business for its taxable year ending within or with the 14 taxable year of the corporation and paid by the unincorporated business 15 and (B) the amount of any credit or credits taken by the unincorporated 16 business under section 11-503 of this title, except the credit allowed 17 by subdivision (b) of section 11-503 of this title, for its taxable year 18 ending within or with the taxable year of the corporation, to the extent 19 that such credits do not reduce such unincorporated business's tax below 20 zero, and (ii) a fraction, the numerator of which is the net total of 21 the corporation's distributive share of income, gain, loss and 22 deductions of, and guaranteed payments from, the unincorporated business 23 for such taxable year, and the denominator of which is the sum, for such 24 taxable year, of the net total distributive shares of income, gain, loss 25 and deductions of, and guaranteed payments to, all partners in the unin- 26 corporated business for whom or which such net total, as separately 27 determined for each partner, is greater than zero. 28 (2) The amount determined in this subparagraph is the product of (i) 29 the excess of (A) the tax computed under clause (i) of subparagraph one 30 of paragraph (e) of subdivision one of this section, without allowance 31 of any credits allowed by this section, over (B) the tax so computed, 32 determined as if the corporation had no such distributive share or guar- 33 anteed payments with respect to the unincorporated business, and (ii) a 34 fraction, the numerator of which is four and the denominator of which is 35 eight and eighty-five one-hundredths, except that in the case of a 36 financial corporation as defined in clause (i) of subparagraph one of 37 paragraph (e) of subdivision one of this section, such denominator is 38 nine, and in the case of a taxpayer that is subject to paragraph (j) or 39 (k) of subdivision one of this section, such denominator shall be the 40 rate of tax as determined by such paragraph (j) or (k) for the taxable 41 year; provided that the amounts computed in subclauses (A) and (B) of 42 clause (i) of this subparagraph shall be computed with the following 43 modifications: 44 (A) such amounts shall be computed without taking into account any 45 carryforward or carryback by the partner of a net operating loss or a 46 prior net operation loss conversion subtraction; 47 (B) if, prior to taking into account any distributive share or guaran- 48 teed payments from any unincorporated business or any net operating loss 49 carryforward or carryback, the entire net income of the partner is less 50 than zero, such entire net income shall be treated as zero; and 51 (C) if such partner's net total distributive share of income, gain, 52 loss and deductions of, and guaranteed payments from, any unincorporated 53 business is less than zero, such net total shall be treated as zero. The 54 amount determined in this subparagraph shall not be less than zero. 55 (b) (1) Notwithstanding anything to the contrary in paragraph (a) of 56 this subdivision, in the case of a corporation that, before the applica-S. 8474 628 1 tion of this subdivision or any other credit allowed by this section, is 2 liable for the tax on business income under clause (i) of subparagraph 3 one of paragraph (e) of subdivision one of this section, the credit or 4 the sum of the credits that may be taken by such corporation for a taxa- 5 ble year under this subdivision with respect to an unincorporated busi- 6 ness or unincorporated businesses in which it is a partner shall not 7 exceed the tax so computed, without allowance of any credits allowed by 8 this section, multiplied by a fraction the numerator of which is four 9 and the denominator of which is eight and eighty-five one-hundredths, 10 except that in the case of a financial corporation as defined in clause 11 (i) of subparagraph one of paragraph (e) of subdivision one of this 12 section, such denominator is nine, and in the case of a taxpayer that is 13 subject to paragraph (j) or (k) of subdivision one of this section, such 14 denominator shall be the rate of tax as determined by such paragraph (j) 15 or (k) for the taxable year. If the credit allowed under this subdivi- 16 sion or the sum of such credits exceeds the product of such tax and such 17 fraction, the amount of the excess may be carried forward, in order, to 18 each of the seven immediately succeeding taxable years and, to the 19 extent not previously taken, shall be allowed as a credit in each of 20 such years. In applying such provisions, the credit determined for the 21 taxable year under paragraph (a) of this subdivision shall be taken 22 before taking any credit carryforward pursuant to this paragraph and the 23 credit carryforward attributable to the earliest taxable year shall be 24 taken before taking a credit carryforward attributable to a subsequent 25 taxable year. 26 (2) Intentionally omitted. 27 (2-a) Notwithstanding any other provision of this subdivision to the 28 contrary, in the case of a taxpayer that has received, in a taxable year 29 beginning before January first, two thousand fifteen, the credit set 30 forth in subdivision eighteen of section 11-604 of this chapter or in 31 section 11-643.8 of this chapter for a tax paid under chapter five of 32 this title in a taxable year beginning before January first, two thou- 33 sand fifteen, the taxpayer may carry forward the unused portion of such 34 credit under this subdivision to any taxable year beginning on or after 35 January first, two thousand fifteen in the same amount and to the same 36 extent, including the same limitations, that the credit, or the unused 37 portion thereof, would have been allowed to be carried forward under 38 subparagraph one of paragraph (b) of subdivision eighteen of section 39 11-604 of this chapter or paragraph one of subdivision (b) of section 40 11-643.8 of this chapter, as in effect on December thirty-first, two 41 thousand fourteen, if such subdivision continued to apply to the taxpay- 42 er for such taxable year. 43 (3) No credit allowed under this subdivision may be taken in a taxable 44 year by a taxpayer that, in the absence of such credit, would be liable 45 for the tax computed on the basis of business capital under clause (ii) 46 of subparagraph one of paragraph (e) of subdivision one of this section 47 or the fixed-dollar minimum tax under clause (iv) of subparagraph one of 48 paragraph (e) of subdivision one of this section. 49 (c) For corporations that file a report on a combined basis pursuant 50 to section 11-654.3 of this subchapter, the credit allowed by this 51 subdivision shall be computed as if the combined group were the partner 52 in each unincorporated business from which any of the members of such 53 group had a distributive share or guaranteed payments, provided, howev- 54 er, if more than one member of the combined group is a partner in the 55 same unincorporated business, for purposes of the calculation required 56 in subparagraph one of paragraph (a) of this subdivision, the numeratorS. 8474 629 1 of the fraction described in clause (ii) of such subparagraph one shall 2 be the sum of the net total distributive shares of income, gain, loss 3 and deductions of, and guaranteed payments from, the unincorporated 4 business of all of the partners of the unincorporated business within 5 the combined group for which such net total, as separately determined 6 for each partner, is greater than zero, and the denominator of such 7 fraction shall be the sum of the net total distributive shares of 8 income, gain, loss and deductions of, and guaranteed payments from, the 9 unincorporated business of all partners in the unincorporated business 10 for whom or which such net total, as separately determined for each 11 partner, is greater than zero. 12 (d) Notwithstanding any other provision of this subchapter, the credit 13 allowable under this subdivision shall be taken prior to the taking of 14 any other credit allowed by this section. Notwithstanding any other 15 provision of this subchapter, the application of this subdivision shall 16 not change the basis on which the taxpayer's tax is computed under para- 17 graph (e) of subdivision one of this section. 18 19. Lower Manhattan relocation and employment assistance credit. (a) 19 In addition to any other credit allowed by this section, a taxpayer that 20 has obtained the certifications required by chapter six-C of title twen- 21 ty-two of the code of the preceding municipality shall be allowed a 22 credit against the tax imposed by this subchapter. The amount of the 23 credit shall be the amount determined by multiplying three thousand 24 dollars by the number of eligible aggregate employment shares maintained 25 by the taxpayer during the taxable year with respect to eligible prem- 26 ises to which the taxpayer has relocated; provided, however, that no 27 credit shall be allowed for the relocation of any retail activity or 28 hotel services; provided, further, that no credit shall be allowed under 29 this subdivision to any taxpayer that has elected pursuant to subdivi- 30 sion (d) of section 22-624 of the code of the preceding municipality to 31 take such credit against a gross receipts tax imposed under chapter 32 eleven of this title. For purposes of this subdivision, the terms 33 "eligible aggregate employment shares," "eligible premises," "relocate," 34 "retail activity" and "hotel services" shall have the meanings ascribed 35 by section 22-623 of the code of the preceding municipality. 36 (b) The credit allowed under this subdivision with respect to eligible 37 aggregate employment shares maintained with respect to eligible premises 38 to which the taxpayer has relocated shall be allowed for the taxable 39 year of the relocation and for any of the twelve succeeding taxable 40 years during which eligible aggregate employment shares are maintained 41 with respect to eligible premises; provided that the credit allowed for 42 the twelfth succeeding taxable year shall be calculated by multiplying 43 the number of eligible aggregate employment shares maintained with 44 respect to eligible premises in the twelfth succeeding taxable year by 45 the lesser of one and a fraction the numerator of which is such number 46 of days in the taxable year of relocation less the number of days the 47 taxpayer maintained employment shares in eligible premises in the taxa- 48 ble year of relocation and the denominator of which is the number of 49 days in such twelfth taxable year during which such eligible aggregate 50 employment shares are maintained with respect to such premises. 51 (c) Except as provided in paragraph (d) of this subdivision, if the 52 amount of the credit allowable under this subdivision for any taxable 53 year exceeds the tax imposed for such year, the excess may be carried 54 over, in order, to the five immediately succeeding taxable years and, to 55 the extent not previously deductible, may be deducted from the taxpay- 56 er's tax for such years.S. 8474 630 1 (d) The credits allowed under this subdivision, against the tax 2 imposed by this chapter for the taxable year of the relocation and for 3 the four taxable years immediately succeeding the taxable year of such 4 relocation, shall be deemed to be overpayments of tax by the taxpayer to 5 be credited or refunded, without interest, in accordance with the 6 provisions of section 11-677 of this chapter. For such taxable years, 7 such credits or portions thereof may not be carried over to any succeed- 8 ing taxable year. 9 (e) The credit allowable under this subdivision shall be deducted 10 after the credits allowed by subdivisions seventeen and eighteen of this 11 section, but prior to the deduction of any other credit allowed by this 12 section. 13 (f) Notwithstanding any other provision of this subdivision to the 14 contrary, in the case of a taxpayer that has obtained, pursuant to chap- 15 ter six-C of title twenty-two of the code of the preceding municipality, 16 a certification of eligibility and has received, in a taxable year 17 beginning before January first, two thousand fifteen, the credit set 18 forth in subdivision nineteen of section 11-604 of this chapter or 19 section 11-643.9 of this chapter for the relocation of an eligible busi- 20 ness, a credit shall be allowed under this subdivision to the taxpayer 21 for any taxable year beginning on or after January first, two thousand 22 fifteen in the same amount and to the same extent that a credit would 23 have been allowed under subdivision nineteen of section 11-604 of this 24 chapter or section 11-643.9 of this chapter, as in effect on December 25 thirty-first, two thousand fourteen, if such subdivision continued to 26 apply to the taxpayer for such taxable year. 27 20. Intentionally omitted. 28 21. Biotechnology credit. (a) (1) A taxpayer that is a qualified 29 emerging technology company, engages in biotechnologies, and meets the 30 eligibility requirements of this subdivision, shall be allowed a credit 31 against the tax imposed by this subchapter. The amount of credit shall 32 be equal to the sum of the amounts specified in subparagraphs three, 33 four and five of this paragraph, subject to the limitations in subpara- 34 graphs six and seven of this paragraph, paragraph (b) of this subdivi- 35 sion, and paragraph three of subdivision (d) of section twelve hundred 36 one-a of the tax law. For the purposes of this subdivision, "qualified 37 emerging technology company" shall mean a company located in the city: 38 (i) whose primary products or services are classified as emerging tech- 39 nologies and whose total annual product sales are ten million dollars or 40 less; or 41 (ii) a company that has research and development activities in the 42 city and whose ratio of research and development funds to net sales 43 equals or exceeds the average ratio for all surveyed companies classi- 44 fied as determined by the National Science Foundation in the most recent 45 published results from its Survey of Industry Research and Development, 46 or any comparable successor survey as determined by the department of 47 finance, and whose total annual product sales are ten million dollars or 48 less. For the purposes of this subdivision, the definition of research 49 and development funds shall be the same as that used by the National 50 Science Foundation in the aforementioned survey. For the purposes of 51 this subdivision, "biotechnologies" shall mean the technologies involv- 52 ing the scientific manipulation of living organisms, especially at the 53 molecular and/or the sub-molecular genetic level, to produce products 54 conducive to improving the lives and health of plants, animals, and 55 humans; and the associated scientific research, pharmacological, mechan- 56 ical, and computational applications and services connected with theseS. 8474 631 1 improvements. Activities included with such applications and services 2 shall include, but not be limited to, alternative mRNA splicing, DNA 3 sequence amplification, antigenetic switching bioaugmentation, bioen- 4 richment, bioremediation, chromosome walking, cytogenetic engineering, 5 DNA diagnosis, fingerprinting, and sequencing, electroporation, gene 6 translocation, genetic mapping, site-directed mutagenesis, bio-transduc- 7 tion, bio-mechanical and bio-electrical engineering, and bio-informat- 8 ics. 9 (2) An eligible taxpayer shall (i) have no more than one hundred full- 10 time employees, of which at least seventy-five percent are employed in 11 the city, (ii) have a ratio of research and development funds to net 12 sales, as referred to in section thirty-one hundred two-e of the public 13 authorities law, which equals or exceeds six percent during the calendar 14 year ending with or within the taxable year for which the credit is 15 claimed, and (iii) have gross revenues, along with the gross revenues of 16 its "affiliates" and "related members" not exceeding twenty million 17 dollars for the calendar year immediately preceding the calendar year 18 ending with or within the taxable year for which the credit is claimed. 19 For the purposes of this subdivision, "affiliates" shall mean those 20 corporations that are members of the same affiliated group, as defined 21 in section fifteen hundred four of the internal revenue code, as the 22 taxpayer. For the purposes of this subdivision, the term "related 23 members" shall mean a person, corporation, or other entity, including an 24 entity that is treated as a partnership or other pass-through vehicle 25 for purposes of federal taxation, whether such person, corporation or 26 entity is a taxpayer or not, where one such person, corporation or enti- 27 ty, or set of related persons, corporations or entities, directly or 28 indirectly owns or controls a controlling interest in another entity. 29 Such entity or entities may include all taxpayers under chapters five, 30 eleven and seventeen of this title, and this subchapter and subchapters 31 two and three of this chapter. A controlling interest shall mean, in the 32 case of a corporation, either thirty percent or more of the total 33 combined voting power of all classes of stock of such corporation, or 34 thirty percent or more of the capital, profits or beneficial interest in 35 such voting stock of such corporation; and in the case of a partnership, 36 association, trust or other entity, thirty percent or more of the capi- 37 tal, profits or beneficial interest in such partnership, association, 38 trust or other entity. 39 (3) An eligible taxpayer shall be allowed a credit for eighteen per 40 centum of the cost or other basis for federal income tax purposes of 41 research and development property that is acquired by the taxpayer by 42 purchase as defined in subsection (d) of section one hundred seventy- 43 nine of the internal revenue code and placed in service during the 44 calendar year that ends with or within the taxable year for which the 45 credit is claimed. Provided, however, for the purposes of this paragraph 46 only, an eligible taxpayer shall be allowed a credit for such percentage 47 of the (i) cost or other basis for federal income tax purposes for prop- 48 erty used in the testing or inspection of materials and products, (ii) 49 the costs or expenses associated with quality control of the research 50 and development, (iii) fees for use of sophisticated technology facili- 51 ties and processes, and (iv) fees for the production or eventual commer- 52 cial distribution of materials and products resulting from the activ- 53 ities of an eligible taxpayer as long as such activities fall under 54 activities relating to biotechnologies. The costs, expenses and other 55 amounts for which a credit is allowed and claimed under this paragraph 56 shall not be used in the calculation of any other credit allowed underS. 8474 632 1 this subchapter. For the purposes of this subdivision, "research and 2 development property" shall mean property that is used for purposes of 3 research and development in the experimental or laboratory sense. Such 4 purposes shall not be deemed to include the ordinary testing or 5 inspection of materials or products for quality control, efficiency 6 surveys, management studies, consumer surveys, advertising, promotions, 7 or research in connection with literary, historical or similar projects. 8 (4) An eligible taxpayer shall be allowed a credit for nine per centum 9 of qualified research expenses paid or incurred by the taxpayer in the 10 calendar year that ends with or within the taxable year for which the 11 credit is claimed. For the purposes of this subdivision, "qualified 12 research expenses" shall mean expenses associated with in-house research 13 and processes, and costs associated with the dissemination of the 14 results of the products that directly result from such research and 15 development activities; provided, however, that such costs shall not 16 include advertising or promotion through media. In addition, costs asso- 17 ciated with the preparation of patent applications, patent application 18 filing fees, patent research fees, patent examinations fees, patent post 19 allowance fees, patent maintenance fees, and grant application expenses 20 and fees shall qualify as qualified research expenses. In no case shall 21 the credit allowed under this subparagraph apply to expenses for liti- 22 gation or the challenge of another entity's intellectual property 23 rights, or for contract expenses involving outside paid consultants. 24 (5) An eligible taxpayer shall be allowed a credit for qualified high- 25 technology training expenditures as described in this subparagraph paid 26 or incurred by the taxpayer during the calendar year that ends with or 27 within the taxable year for which the credit is claimed. 28 (i) The amount of credit shall be one hundred percent of the training 29 expenses described in clause (iii) of this subparagraph, subject to a 30 limitation of no more than four thousand dollars per employee per calen- 31 dar year for such training expenses. 32 (ii) Qualified high-technology training shall include a course or 33 courses taken and satisfactorily completed by an employee of the taxpay- 34 er at an accredited, degree granting post-secondary college or universi- 35 ty in the city that (A) directly relates to biotechnology activities, 36 and (B) is intended to upgrade, retrain or improve the productivity or 37 theoretical awareness of the employee. Such course or courses may 38 include, but are not limited to, instruction or research relating to 39 techniques, meta, macro, or micro-theoretical or practical knowledge 40 bases or frontiers, or ethical concerns related to such activities. Such 41 course or courses shall not include classes in the disciplines of 42 management, accounting or the law or any class designed to fulfill the 43 discipline specific requirements of a degree program at the associate, 44 baccalaureate, graduate or professional level of these disciplines. 45 Satisfactory completion of a course or courses shall mean the earning 46 and granting of credit or equivalent unit, with the attainment of a 47 grade of "B" or higher in a graduate level course or courses, a grade of 48 "C" or higher in an undergraduate level course or courses, or a similar 49 measure of competency for a course that is not measured according to a 50 standard grade formula. 51 (iii) Qualified high-technology training expenditures shall include 52 expenses for tuition and mandatory fees, software required by the insti- 53 tution, fees for textbooks or other literature required by the institu- 54 tion offering the course or courses, minus applicable scholarships and 55 tuition or fee waivers not granted by the taxpayer or any affiliates of 56 the taxpayer, that are paid or reimbursed by the taxpayer. QualifiedS. 8474 633 1 high-technology expenditures do not include room and board, computer 2 hardware or software not specifically assigned for such course or cours- 3 es, late-charges, fines or membership dues and similar expenses. Such 4 qualified expenditures shall not be eligible for the credit provided by 5 this section unless the employee for whom the expenditures are disbursed 6 is continuously employed by the taxpayer in a full-time, full-year posi- 7 tion primarily located at a qualified site during the period of such 8 coursework and lasting through at least one hundred eighty days after 9 the satisfactory completion of the qualifying course-work. Qualified 10 high-technology training expenditures shall not include expenses for 11 in-house or shared training outside of a city higher education institu- 12 tion or the use of consultants outside of credit granting courses, 13 whether such consultants function inside of such higher education insti- 14 tution or not. 15 (iv) If a taxpayer relocates from an academic business incubator 16 facility partnered with an accredited post-secondary education institu- 17 tion located within the city, which provides space and business support 18 services to taxpayers, to another site, the credit provided in this 19 subdivision shall be allowed for all expenditures referenced in clause 20 (iii) of this subparagraph paid or incurred in the two preceding calen- 21 dar years that the taxpayer was located in such an incubator facility 22 for employees of the taxpayer who also relocate from said incubator 23 facility to such city site and are employed and primarily located by the 24 taxpayer in the city. Such expenditures in the two preceding years shall 25 be added to the amounts otherwise qualifying for the credit provided by 26 this subdivision that were paid or incurred in the calendar year that 27 the taxpayer relocates from such a facility. Such expenditures shall 28 include expenses paid for an eligible employee who is a full-time, full- 29 year employee of said taxpayer during the calendar year that the taxpay- 30 er relocated from an incubator facility notwithstanding (A) that such 31 employee was employed full or part-time as an officer, staff-person or 32 paid intern of the taxpayer when such taxpayer was located at such incu- 33 bator facility or (B) that such employee was not continuously employed 34 when such taxpayer was located at the incubator facility during the one 35 hundred eighty day period referred to in clause (iii) of this subpara- 36 graph, provided such employee received wages or equivalent income for at 37 least seven hundred fifty hours during any twenty-four month period when 38 the taxpayer was located at the incubator facility. Such expenditures 39 shall include payments made to such employee after the taxpayer has 40 relocated from the incubator facility for qualified expenditures if such 41 payments are made to reimburse an employee for expenditures paid by the 42 employee during such two preceding years. The credit provided under 43 this paragraph shall be allowed in any taxable year that the taxpayer 44 qualifies as an eligible taxpayer. 45 (v) For purposes of this subdivision the term "academic year" shall 46 mean the annual period of sessions of a post-secondary college or 47 university. 48 (vi) For the purposes of this subdivision the term "academic incubator 49 facility" shall mean a facility providing low-cost space, technical 50 assistance, support services and educational opportunities, including 51 but not limited to central services provided by the manager of the 52 facility to the tenants of the facility, to an entity located in the 53 city. Such entity's primary activity must be in biotechnologies, and 54 such entity must be in the formative stage of development. The academic 55 incubator facility and the entity must act in partnership with an 56 accredited post-secondary college or university located in the city. AnS. 8474 634 1 academic incubator facility's mission shall be to promote job creation, 2 entrepreneurship, technology transfer, and provide support services to 3 incubator tenants, including, but not limited to, business planning, 4 management assistance, financial-packaging, linkages to financing 5 services, and coordinating with other sources of assistance. 6 (6) An eligible taxpayer may claim credits under this subdivision for 7 three consecutive years. In no case shall the credit allowed by this 8 subdivision to a taxpayer exceed two hundred fifty thousand dollars per 9 calendar year for eligible expenditures made during such calendar year. 10 (7) The credit allowed under this subdivision for any taxable year 11 shall not reduce the tax due for such year to less than the amount 12 prescribed in clause (iv) of subparagraph one of paragraph (e) of subdi- 13 vision one of this section. Provided, however, if the amount of credit 14 allowed under this subdivision for any taxable year reduces the tax to 15 such amount, any amount of credit not deductible in such taxable year 16 shall be treated as an overpayment of tax to be credited or refunded in 17 accordance with the provisions of section 11-677 of this chapter; 18 provided, however, that notwithstanding the provisions of section 11-679 19 of this chapter, no interest shall be paid thereon. 20 (8) The credit allowed under this subdivision shall only be allowed 21 for taxable years beginning before January first, two thousand nineteen. 22 (b) (1) The percentage of the credit allowed to a taxpayer under this 23 subdivision in any calendar year shall be: 24 (i) If the average number of individuals employed full time by a 25 taxpayer in the city during the calendar year that ends with or within 26 the taxable year for which the credit is claimed is at least one hundred 27 five percent of the taxpayer's base year employment, one hundred 28 percent, except that in no case shall the credit allowed under this 29 clause exceed two hundred fifty thousand dollars per calendar year. 30 Provided, however, the increase in base year employment shall not apply 31 to a taxpayer allowed a credit under this subdivision that was, (A) 32 located outside of the city, (B) not doing business, or (C) did not have 33 any employees, in the year preceding the first year that the credit is 34 claimed. Any such taxpayer shall be eligible for one hundred percent of 35 the credit for the first calendar year that ends with or within the 36 taxable year for which the credit is claimed, provided that such taxpay- 37 er locates in the city, begins doing business in the city or hires 38 employees in the city during such calendar year and is otherwise eligi- 39 ble for the credit pursuant to the provisions of this subdivision. 40 (ii) If the average number of individuals employed full time by a 41 taxpayer in the city during the calendar year that ends with or within 42 the taxable year for which the credit is claimed is less than one 43 hundred five percent of the taxpayer's base year employment, fifty 44 percent, except that in no case shall the credit allowed under this 45 clause exceed one hundred twenty-five thousand dollars per calendar 46 year. In the case of an entity located in the city receiving space and 47 business support services by an academic incubator facility, if the 48 average number of individuals employed full time by such entity in the 49 city during the calendar year in which the credit allowed under this 50 subdivision is claimed is less than one hundred five percent of the 51 taxpayer's base year employment, the credit shall be zero. 52 (2) For the purposes of this subdivision, "base year employment" means 53 the average number of individuals employed full-time by the taxpayer in 54 the city in the year preceding the first calendar year that ends with or 55 within the taxable year for which the credit is claimed.S. 8474 635 1 (3) For the purposes of this subdivision, average number of individ- 2 uals employed full-time shall be computed by adding the number of such 3 individuals employed by the taxpayer at the end of each quarter during 4 each calendar year or other applicable period and dividing the sum so 5 obtained by the number of such quarters occurring within such calendar 6 year or other applicable period. 7 (4) Notwithstanding anything contained in this section to the contra- 8 ry, the credit provided by this subdivision shall be allowed against the 9 taxes authorized by this chapter for the taxable year after reduction by 10 all other credits permitted by this chapter. 11 (c) Notwithstanding any other provision of this subdivision to the 12 contrary, in the case of a taxpayer that has received, in a taxable year 13 beginning before January first, two thousand fifteen, the credit set 14 forth in subdivision twenty-one of section 11-604 of this chapter for an 15 eligible acquisition of property and/or expense paid or incurred, a 16 credit shall be allowed to the taxpayer under this subdivision for any 17 tax year beginning on or after January first, two thousand fifteen in 18 the same amount and to the same extent that a credit would have been 19 allowed under subdivision twenty-one of section 11-604 of this chapter, 20 as in effect on December thirty-first, two thousand fourteen, if such 21 subdivision continued to apply to the taxpayer for such taxable year. 22 22. Beer production credit. (a) A taxpayer subject to tax under this 23 subchapter, that is registered as a distributor under article eighteen 24 of the tax law, and that produces sixty million or fewer gallons of beer 25 in this state in the taxable year, shall be allowed a credit against the 26 tax imposed by this subchapter in the amount specified in paragraph (b) 27 of this subdivision. Provided, however, that no credit shall be allowed 28 for any beer produced in excess of fifteen million five hundred thousand 29 gallons in the taxable year. Notwithstanding anything in this title to 30 the contrary, if a partnership is allowed a credit under subdivision (p) 31 of section 11-503 of this title, a taxpayer that is a partner in such 32 partnership shall not be allowed a credit under this subdivision for any 33 taxable year that includes the last day of the taxable year for which 34 the partnership is allowed such credit. 35 (b) The amount of the credit per taxpayer per taxable year for each 36 gallon of beer produced in the city of New York on or after January 37 first, two thousand seventeen shall be determined as follows: 38 (1) for the first five hundred thousand gallons of beer produced in 39 the city of New York in the taxable year, the credit shall equal twelve 40 cents per gallon; and 41 (2) for each gallon of beer produced in the city of New York in the 42 taxable year in excess of five hundred thousand gallons, the credit 43 shall equal three and eighty-six one-hundredths cents per gallon. In no 44 event shall the credit allowed under this subdivision for any taxable 45 year reduce the tax due for such year to less than the amount prescribed 46 in subparagraph one of paragraph (e) of subdivision one of this section. 47 However, if the amount of credit allowed under this subdivision for any 48 taxable year reduces the tax to such amount, any amount of credit thus 49 not deductible in such taxable year shall be treated as an overpayment 50 of tax to be credited or refunded in accordance with the provisions of 51 section 11-677 of this chapter; provided, however, that notwithstanding 52 the provisions of section 11-679 of this chapter, no interest shall be 53 paid thereon. 54 23. Credit for the provision of child care. In addition to any other 55 credit allowed under this section, a taxpayer whose application for a 56 credit authorized by section 11-144 of this title has been approved byS. 8474 636 1 the department of finance shall be allowed a credit against the tax 2 imposed by this chapter. The amount of the credit shall be determined as 3 provided in such section. To the extent the amount of the credit allowed 4 by this subdivision exceeds the amount of tax due pursuant to this 5 subchapter, as calculated without such credit, such excess amount shall 6 be treated as an overpayment of tax to be credited or refunded in 7 accordance with the provisions of section 11-677 of this chapter, 8 provided, however, that notwithstanding the requirements of section 9 11-679 of this chapter to the contrary, no interest shall be paid there- 10 on. 11 § 11-654.1 Net operating loss. 1. In computing the business income 12 subject to tax, taxpayers shall be allowed both a prior net operating 13 loss conversion subtraction under subdivision two of this section and a 14 net operating loss deduction under subdivision three of this section. 15 The prior net operating loss conversion subtraction computed under 16 subdivision two of this section shall be applied against business income 17 before the net operating loss deduction computed under subdivision three 18 of this section. 19 2. Prior net operating loss conversion subtraction. (a) Definitions. 20 (1) "Base year" means the last taxable year beginning on or after Janu- 21 ary first, two thousand fourteen and before January first, two thousand 22 fifteen. 23 (2) "Unabsorbed net operating loss" means the unabsorbed portion of 24 net operating loss as calculated under paragraph (f) of subdivision 25 eight of section 11-602 of this chapter or subdivision (k-1) of section 26 11-641 of this chapter, as such sections were in effect on December 27 thirty-first, two thousand fourteen, that was not deductible in previous 28 taxable years and was eligible for carryover on the last day of the base 29 year subject to the limitations for deduction under such sections, 30 including any net operating loss sustained by the taxpayer during the 31 base year. 32 (3) "Base year BAP" means the taxpayer's business allocation percent- 33 age as calculated under paragraph (a) of subdivision three of section 34 11-604 of this chapter for the base year, or the taxpayer's allocation 35 percentage as calculated under section 11-642 of this chapter for 36 purposes of calculating entire net income for the base year, as such 37 sections were in effect on December thirty-first, two thousand fourteen. 38 (4) "Base year tax rate" means the taxpayer's tax rate for the base 39 year as applied to entire net income and calculated under subdivision 40 one of section 11-604 of this chapter or subdivision (a) of section 41 11-643.5 of this chapter, as such provisions were in effect on December 42 thirty-first, two thousand fourteen. 43 (b) The prior net operating loss conversion subtraction shall be 44 calculated as follows: 45 (1) The taxpayer shall first calculate the tax value of its unabsorbed 46 net operating loss for the base year. The value is equal to the product 47 of (i) the amount of the taxpayer's unabsorbed net operating loss, (ii) 48 the taxpayer's base year BAP, and (iii) the taxpayer's base year tax 49 rate. 50 (2) The product determined under subparagraph one of this paragraph 51 shall then be divided by eight and eighty-five one-hundredths per centum 52 or, in the case of a financial corporation, as defined in clause (i) of 53 subparagraph one of paragraph (e) of subdivision one of section 11-654 54 of this subchapter, the product determined under subparagraph one of 55 this paragraph shall then be divided by nine per centum. This resultS. 8474 637 1 shall equal the taxpayer's prior net operating loss conversion 2 subtraction pool. 3 (3) The taxpayer's prior net operating loss conversion subtraction for 4 the taxable year shall equal one-tenth of its prior net operating loss 5 conversion subtraction pool, plus any amount of unused prior net operat- 6 ing loss conversion subtraction from preceding taxable years. 7 (4) In lieu of the prior net operating loss conversion subtraction 8 described in subparagraph three of this paragraph, if the taxpayer so 9 elects, the taxpayer's prior net operating loss conversion subtraction 10 for its taxable years beginning on or after January first, two thousand 11 fifteen and before January first, two thousand seventeen shall equal, in 12 each year, not more than one-half of its prior net operating loss 13 conversion subtraction pool until the pool is exhausted. If the pool is 14 not exhausted at the end of such time period, the remainder of the pool 15 shall be forfeited. The taxpayer shall make such election, which shall 16 be revocable, on its first return for the tax year beginning on or after 17 January first, two thousand fifteen and before January first, two thou- 18 sand sixteen by the due date for such return, determined with regard to 19 extensions. 20 (c) (1) Where a taxpayer was properly included or required to be 21 included in a combined report for the base year pursuant to section 22 11-605 of this chapter or a combined return for the base year pursuant 23 to section 11-646 of this chapter, as such sections were in effect on 24 December thirty-first, two thousand fourteen, and the members of the 25 combined group for the base year are the same as the members of the 26 combined group for the taxable year immediately succeeding the base 27 year, the combined group shall calculate its prior net operating loss 28 conversion subtraction pool using the combined group's total unabsorbed 29 net operating loss, base year BAP, and base year tax rate. 30 (2) If a combined group includes additional members in the taxable 31 year immediately succeeding the base year that were not included in the 32 combined group during the base year, each base year combined group and 33 each taxpayer that filed separately for the base year but is included in 34 the combined group in the taxable year succeeding the base year shall 35 calculate its prior net operating loss conversion subtraction pool, and 36 the sum of the pools shall be the combined prior net operating loss 37 conversion subtraction pool of the combined group. 38 (3) If a taxpayer was properly included in a combined report for the 39 base year and files a separate report for a subsequent taxable year, 40 then the amount of remaining prior net operating loss conversion 41 subtraction allowed to the taxpayer filing such separate report shall be 42 proportionate to the amount that such taxpayer contributed to the prior 43 net operating loss conversion subtraction pool on a combined basis, and 44 the remaining prior net operating loss conversion subtraction allowed to 45 the remaining members of the combined group shall be reduced according- 46 ly. 47 (4) If a taxpayer filed a separate report for the base year and is 48 properly included in a combined report for a subsequent taxable year, 49 then the prior net operating loss conversion subtraction pool of the 50 combined group shall be increased by the amount of the remaining prior 51 net operating loss conversion subtraction allowed to the taxpayer at the 52 time the taxpayer is properly included in the combined group. 53 (d) The prior net operating loss conversion subtraction may be used to 54 reduce the taxpayer's tax on allocated business income to the higher of 55 the tax on business capital under clause (ii) of subparagraph one of 56 paragraph (e) of subdivision one of section 11-654 of this subchapter orS. 8474 638 1 the fixed dollar minimum under clause (iv) of subparagraph one of para- 2 graph (e) of subdivision one of section 11-654 of this subchapter. 3 Unless the taxpayer has made the election provided for in subparagraph 4 four of paragraph (b) of this subdivision, any amount of unused prior 5 net operating loss conversion subtraction shall be carried forward to a 6 subsequent tax year or subsequent tax years until the prior net operat- 7 ing loss conversion subtraction pool is exhausted, but for no longer 8 than twenty taxable years or the taxable year beginning on or after 9 January first, two thousand thirty-five but before January first, two 10 thousand thirty-six, whichever comes first. Such amount carried forward 11 shall not be subject to the one-tenth limitation for the subsequent tax 12 year or years under subparagraph three of paragraph (b) of this subdivi- 13 sion. However, if the taxpayer elects to compute its prior net operat- 14 ing loss conversion subtraction pursuant to subparagraph four of para- 15 graph (b) of this subdivision, the taxpayer shall not carry forward any 16 unused amount of such prior net operating loss conversion subtraction to 17 any tax year beginning on or after January first, two thousand seven- 18 teen. 19 3. In computing business income, a net operating loss deduction shall 20 be allowed. A net operating loss deduction shall be the amount of net 21 operating loss or losses from one or more taxable years that are carried 22 forward or carried back to a particular taxable year. A net operating 23 loss shall be the amount of a business loss incurred in a particular tax 24 year multiplied by the business allocation percentage for that year as 25 determined under subdivision three of section 11-654 of this subchapter. 26 The maximum net operating loss deduction that is allowed in a taxable 27 year shall be the amount that reduces the taxpayer's tax on allocated 28 business income to the higher of the tax on business capital under 29 clause (ii) of subparagraph one of paragraph (e) of subdivision one of 30 section 11-654 of this subchapter or the fixed dollar minimum amount 31 under clause (iv) of subparagraph one of paragraph (e) of subdivision 32 one of section 11-654 of this subchapter. Such net operating loss 33 deduction and net operating loss shall be determined in accordance with 34 the following: 35 (a) Such net operating loss deduction shall not be limited to the 36 amount allowed under section one hundred seventy-two of the internal 37 revenue code or the amount that would have been allowed if the taxpayer 38 did not have an election under subchapter S of chapter one of the inter- 39 nal revenue code in effect for the applicable tax year. 40 (b) Such net operating loss deduction shall not include any net oper- 41 ating loss incurred during any taxable year beginning prior to January 42 first, two thousand fifteen, or during any taxable year in which the 43 taxpayer was not subject to the tax imposed by this subchapter. 44 (c) A taxpayer that files as part of a federal consolidated return but 45 on a separate basis for purposes of this subchapter shall compute its 46 deduction and loss as if it were filing on a separate basis for federal 47 income tax purposes. 48 (d) A net operating loss may be carried back three taxable years 49 preceding the taxable year of the loss except that no loss may be 50 carried back to a taxable year beginning before January first, two thou- 51 sand fifteen. The loss first shall be carried to the earliest of the 52 three taxable years preceding the taxable year of the loss. If it is not 53 entirely used in that year, it shall be carried to the second taxable 54 year preceding the taxable year of the loss, and any remaining amount 55 shall be carried to the taxable year immediately preceding the taxable 56 year of the loss. Any unused amount of loss then remaining may beS. 8474 639 1 carried forward for as many as twenty taxable years following the taxa- 2 ble year of the loss. Losses carried forward are carried forward first 3 to the taxable year immediately following the taxable year of the loss, 4 then to the second taxable year following the taxable year of the loss, 5 and then to the next immediately subsequent taxable year or years until 6 the loss is used up or the twentieth taxable year following the taxable 7 year of the loss, whichever comes first. 8 (e) Such net operating loss deduction shall not include any net oper- 9 ating loss incurred during any taxable year commencing after January 10 first, two thousand fifteen if the taxpayer was subject to tax under 11 subchapter two or three of this chapter in that year; provided, however, 12 any year commencing after January first, two thousand fifteen that the 13 taxpayer was subject to tax under subchapter two or three of this chap- 14 ter in that year must be treated as a taxable year for purposes of 15 determining the number of taxable years to which a net operating loss 16 may be carried forward. 17 (f) Where there are two or more allocated net operating losses, or 18 portions thereof, carried back or carried forward to be deducted in one 19 particular tax year from allocated business income, the earliest allo- 20 cated loss incurred must be applied first. 21 (g) A taxpayer may elect to waive the entire carryback period with 22 respect to a net operating loss. Such election must be made on the 23 taxpayer's original timely filed return, determined with regard to 24 extensions, for the taxable year of the net operating loss for which the 25 election is to be in effect. Once an election is made for a taxable 26 year, it shall be irrevocable for that taxable year. A separate election 27 must be made for each taxable year of the loss. This election applies to 28 all members of a combined group. 29 § 11-654.2 Receipts allocation. 1. The percentage of receipts of the 30 taxpayer to be allocated to the city for purposes of subparagraph two of 31 paragraph (a) of subdivision three of section 11-654 of this subchapter 32 shall be equal to the receipts fraction determined pursuant to this 33 section. The receipts fraction is a fraction, determined by including 34 only those receipts, net income, net gains, and other items described in 35 this section that are included in the computation of the taxpayer's 36 business income, determined without regard to the modification provided 37 in subparagraph fourteen of paragraph (a) of subdivision eight of 38 section 11-652 of this subchapter, for the taxable year. The numerator 39 of the receipts fraction shall be equal to the sum of all the amounts 40 required to be included in the numerator pursuant to the provisions of 41 this section and the denominator of the receipts fraction shall be equal 42 to the sum of all the amounts required to be included in the denominator 43 pursuant to the provisions of this section. 44 2. (a) Receipts from sales of tangible personal property where ship- 45 ments are made to points within the city or the destination of the prop- 46 erty is a point within the city shall be included in the numerator of 47 the receipts fraction. Receipts from sales of tangible personal property 48 where shipments are made to points within and without the city or the 49 destination is within and without the city shall be included in the 50 denominator of the receipts fraction. 51 (b) Receipts from sales of electricity delivered to points within the 52 city shall be included in the numerator of the receipts fraction. 53 Receipts from sales of electricity delivered to points within and with- 54 out the city shall be included in the denominator of the receipts frac- 55 tion.S. 8474 640 1 (c) Receipts from sales of tangible personal property and electricity 2 that are traded as commodities as the term "commodity" is defined in 3 section four hundred seventy-five of the internal revenue code, shall be 4 included in the receipts fraction in accordance with clause (ix) of 5 subparagraph two of paragraph (a) of subdivision five of this section. 6 (d) Net gains, not less than zero, from the sales of real property 7 located within the city shall be included in the numerator of the 8 receipts fraction. Net gains, not less than zero, from the sales of real 9 property located within and without the city shall be included in the 10 denominator of the receipts fraction. 11 3. (a) Receipts from rentals of real and tangible personal property 12 located within the city shall be included in the numerator of the 13 receipts fraction. Receipts from rentals of real and tangible personal 14 property located within and without the city shall be included in the 15 denominator of the receipts fraction. 16 (b) Receipts of royalties from the use of patents, copyrights, trade- 17 marks, and similar intangible personal property within the city shall be 18 included in the numerator of the receipts fraction. Receipts of royal- 19 ties from the use of patents, copyrights, trademarks, and similar intan- 20 gible personal property within and without the city shall be included in 21 the denominator of the receipts fraction. A patent, copyright, trade- 22 mark, or similar intangible personal property is used within the city to 23 the extent that the activities thereunder are carried on within the 24 city. 25 (c) Receipts from the sales of rights for closed-circuit and cable 26 television transmissions of an event, other than events occurring on a 27 regularly scheduled basis, taking place within the city as a result of 28 the rendition of services by employees of the corporation, as athletes, 29 entertainers or performing artists, shall be included in the numerator 30 of the receipts fraction to the extent that such receipts are attribut- 31 able to such transmissions received or exhibited within the city. 32 Receipts from all sales of rights for closed-circuit and cable tele- 33 vision transmissions of an event, other than events occurring on a regu- 34 larly scheduled basis, shall be included in the denominator of the 35 receipts fraction. 36 4. (a) For purposes of determining the receipts fraction under this 37 section, the term "digital product" means any property or service, or 38 combination thereof, of whatever nature delivered to the purchaser 39 through the use of wire, cable, fiber-optic, laser, microwave, radio 40 wave, satellite or similar successor media, or any combination thereof. 41 Digital product includes, but is not limited to, an audio work, audi- 42 ovisual work, visual work, book or literary work, graphic work, game, 43 information or entertainment service, storage of digital products and 44 computer software by whatever means delivered. The term "delivered to" 45 includes furnished or provided to or accessed by. A digital product 46 shall not include legal, medical, accounting, architectural, research, 47 analytical, engineering or consulting services provided by the taxpayer. 48 (b) Receipts from the sale of, license to use, or granting of remote 49 access to digital products within the city, determined according to the 50 hierarchy of methods set forth in subparagraphs one through four of 51 paragraph (c) of this subdivision, shall be included in the numerator of 52 the receipts fraction. Receipts from the sale of, license to use, or 53 granting of remote access to digital products within and without the 54 city shall be included in the denominator of the receipts fraction. The 55 taxpayer must exercise due diligence under each method described in 56 paragraph (c) of this subdivision before rejecting it and proceeding toS. 8474 641 1 the next method in the hierarchy, and must base its determination on 2 information known to the taxpayer or information that would be known to 3 the taxpayer upon reasonable inquiry. If the receipt for a digital prod- 4 uct is comprised of a combination of property and services, it cannot be 5 divided into separate components and shall be considered to be one 6 receipt regardless of whether it is separately stated for billing 7 purposes. The entire receipt must be allocated by this hierarchy. 8 (c) The hierarchy of sourcing methods is as follows: (1) the custom- 9 er's primary use location of the digital product; (2) the location where 10 the digital product is received by the customer, or is received by a 11 person designated for receipt by the customer; (3) the receipts fraction 12 determined pursuant to this subdivision for the preceding taxable year 13 for such digital product; or (4) the receipts fraction in the current 14 taxable year for those digital products that can be sourced using the 15 hierarchy of sourcing methods in subparagraphs one and two of this para- 16 graph. 17 5. (a) A financial instrument is a "nonqualified financial instrument" 18 if it is not a qualified financial instrument. A qualified financial 19 instrument means a financial instrument that is of a type described in 20 any of clauses (i), (ii), (iii), (iv), (vii), (viii) or (ix) of subpara- 21 graph two of this paragraph and that has been marked to market in the 22 taxable year by the taxpayer under section four hundred seventy-five or 23 section one thousand two hundred fifty-six of the internal revenue code. 24 Further, if the taxpayer has in the taxable year marked to market a 25 financial instrument of the type described in any of clauses (i), (ii), 26 (iii), (iv), (vii), (viii) or (ix) of subparagraph two of this para- 27 graph, then any financial instrument within that type described in the 28 above specified clause or clauses that has not been marked to market by 29 the taxpayer under section four hundred seventy-five or section one 30 thousand two hundred fifty-six of the internal revenue code is a quali- 31 fied financial instrument in the taxable year, provided, however, (i) a 32 loan secured by real property shall not be a qualified financial instru- 33 ment, (ii) if the only loans that are marked to market by the taxpayer 34 under section four hundred seventy-five or section one thousand two 35 hundred fifty-six of the internal revenue code are loans secured by real 36 property, then no loans shall be qualified financial instruments, (iii) 37 stock that is investment capital as defined in paragraph (a) of subdivi- 38 sion four of section 11-652 of this subchapter shall not be a qualified 39 financial instrument, and (iv) stock that generates other exempt income 40 as defined in subdivision five-a of section 11-652 of this subchapter 41 and that is not marked to market under section four hundred seventy-five 42 or section one thousand two hundred fifty-six of the internal revenue 43 code shall not constitute a qualified financial instrument with respect 44 to the income from that stock that is described in such subdivision 45 five-a. If a corporation is included in a combined report, the defi- 46 nition of qualified financial instrument shall be determined on a 47 combined basis. In the case of RIC or a REIT that is not a captive RIC 48 or a captive REIT, a qualified financial instrument means a financial 49 instrument that is of a type described in any of clauses (i), (ii), 50 (iii), (iv), (vii), (viii) or (ix) of subparagraph two of this para- 51 graph, other than (i) a loan secured by real property, (ii) stock that 52 is investment capital as defined in paragraph (a) of subdivision four of 53 section 11-652 of this subchapter, and (iii) stock that generates other 54 exempt income as defined in subdivision five-a of section 11-652 of this 55 subchapter with respect to the income from that stock that is described 56 in such subdivision five-a.S. 8474 642 1 (1) In determining the inclusion of receipts and net gains from quali- 2 fied financial instruments in the receipts fraction, taxpayers may elect 3 to use the fixed percentage method described in this subparagraph for 4 qualified financial instruments. The election is irrevocable, applies to 5 all qualified financial instruments, and must be made on an annual basis 6 on the taxpayer's original, timely filed return, determined with regard 7 to extensions. If the taxpayer elects the fixed percentage method, then 8 all income, gain or loss, including marked to market net gains as 9 defined in clause (x) of subparagraph two of this paragraph, from quali- 10 fied financial instruments constitute business income, gain or loss. If 11 the taxpayer does not elect to use the fixed percentage method, then 12 receipts and net gains are included in the receipts fraction in accord- 13 ance with the customer sourcing method described in subparagraph two of 14 this paragraph. Under the fixed percentage method, eight percent of all 15 net income, not less than zero, from qualified financial instruments 16 shall be included in the numerator of the receipts fraction. All net 17 income, not less than zero, from qualified financial instruments shall 18 be included in the denominator of the receipts fraction. 19 (2) Receipts and net gains from qualified financial instruments, in 20 cases where the taxpayer did not elect to use the fixed percentage meth- 21 od described in subparagraph one of this paragraph, and from nonquali- 22 fied financial instruments shall be included in the receipts fraction in 23 accordance with this subparagraph. For purposes of this paragraph, an 24 individual is deemed to be located within the city if his or her billing 25 address is within the city. A business entity is deemed to be located 26 within the city if its commercial domicile is located within the city. 27 (i)(A) Receipts constituting interest from loans secured by real prop- 28 erty located within the city shall be included in the numerator of the 29 receipts fraction. Receipts constituting interest from loans secured by 30 real property located within and without the city shall be included in 31 the denominator of the receipts fraction. 32 (B) Receipts constituting interest from loans not secured by real 33 property shall be included in the numerator of the receipts fraction if 34 the borrower is located within the city. Receipts constituting interest 35 from loans not secured by real property, whether the borrower is located 36 within or without the city, shall be included in the denominator of the 37 receipts fraction. 38 (C) Net gains, not less than zero, from sales of loans secured by real 39 property shall be included in the numerator of the receipts fraction as 40 provided in this subclause. The amount of net gains from the sales of 41 loans secured by real property included in the numerator of the receipts 42 fraction shall be determined by multiplying the net gains by a fraction, 43 the numerator of which shall be the amount of gross proceeds from sales 44 of loans secured by real property located within the city and the denom- 45 inator of which shall be the gross proceeds from sales of loans secured 46 by real property located within and without the city. Gross proceeds 47 shall be determined after the deduction of any cost incurred to acquire 48 the loans but shall not be less than zero. Net gains, not less than 49 zero, from sales of loans secured by real property located within and 50 without the city shall be included in the denominator of the receipts 51 fraction. 52 (D) Net gains, not less than zero, from sales of loans not secured by 53 real property shall be included in the numerator of the receipts frac- 54 tion as provided in this subclause. The amount of net gains from the 55 sales of loans not secured by real property included in the numerator of 56 the receipts fraction shall be determined by multiplying the net gainsS. 8474 643 1 by a fraction, the numerator of which shall be the amount of gross 2 proceeds from sales of loans not secured by real property to purchasers 3 located within the city and the denominator of which shall be the amount 4 of gross proceeds from sales of loans not secured by real property to 5 purchasers located within and without the city. Gross proceeds shall be 6 determined after the deduction of any cost incurred to acquire the loans 7 but shall not be less than zero. Net gains, not less than zero, from 8 sales of loans not secured by real property shall be included in the 9 denominator of the receipts fraction. 10 (E) For purposes of this subdivision, a loan is secured by real prop- 11 erty if fifty percent or more of the value of the collateral used to 12 secure the loan, when valued at fair market value as of the time the 13 loan was entered into, consists of real property. 14 (ii) Federal, state, and municipal debt. Receipts constituting inter- 15 est and net gains from sales of debt instruments issued by the United 16 States, any state, or political subdivision of a state shall not be 17 included in the numerator of the receipts fraction. Receipts constitut- 18 ing interest and net gains, not less than zero, from sales of debt 19 instruments issued by the United States and the state of New York or its 20 political subdivisions, including the city, shall be included in the 21 denominator of the receipts fraction. Fifty percent of the receipts 22 constituting interest and net gains, not less than zero, from sales of 23 debt instruments issued by other states or their political subdivisions 24 shall be included in the denominator of the receipts fraction. 25 (iii) Asset backed securities and other government agency debt. Eight 26 percent of the interest income from asset backed securities or other 27 securities issued by government agencies, including but not limited to 28 securities issued by the government national mortgage association 29 (GNMA), the federal national mortgage association (FNMA), the federal 30 home loan mortgage corporation (FHLMC), or the small business adminis- 31 tration, or eight percent of the interest income from asset backed secu- 32 rities issued by other entities shall be included in the numerator of 33 the receipts fraction. Eight percent of the net gains, not less than 34 zero, from (A) sales of asset backed securities or other securities 35 issued by government agencies, including but not limited to securities 36 issued by GNMA, FNMA, FHLMC, or the small business administration, or 37 (B) sales of other asset backed securities that are sold through a 38 registered securities broker or dealer or through a licensed exchange, 39 shall be included in the numerator of the receipts fraction. The amount 40 of net gains, not less than zero, from sales of other asset backed secu- 41 rities not referenced in subclause (A) or (B) of this clause included in 42 the numerator of the receipts fraction shall be determined by multiply- 43 ing such net gains by a fraction, the numerator of which shall be the 44 amount of gross proceeds from such sales to purchasers located in the 45 city and the denominator of which shall be the amount of gross proceeds 46 from such sales to purchasers located within and without the city. 47 Receipts constituting interest income from asset backed securities and 48 other securities referenced in this clause and net gains, not less than 49 zero, from sales of asset backed securities and other securities refer- 50 enced in this clause shall be included in the denominator of the 51 receipts fraction. Gross proceeds shall be determined after the 52 deduction of any cost to acquire the securities but shall not be less 53 than zero. 54 (iv) Receipts constituting interest from corporate bonds shall be 55 included in the numerator of the receipts fraction if the commercial 56 domicile of the issuing corporation is within the city. Eight percent ofS. 8474 644 1 the net gains, not less than zero, from sales of corporate bonds sold 2 through a registered securities broker or dealer or through a licensed 3 exchange shall be included in the numerator of the receipts fraction. 4 The amount of net gains, not less than zero, from other sales of corpo- 5 rate bonds included in the numerator of the receipts fraction shall be 6 determined by multiplying such net gains by a fraction, the numerator of 7 which is the amount of gross proceeds from such sales to purchasers 8 located within the city and the denominator of which is the amount of 9 gross proceeds from sales to purchasers located within and without the 10 city. Receipts constituting interest from corporate bonds, whether the 11 issuing corporation's commercial domicile is within or without the city, 12 and net gains, not less than zero, from sales of corporate bonds to 13 purchasers within and without the city shall be included in the denomi- 14 nator of the receipts fraction. Gross proceeds shall be determined after 15 the deduction of any cost to acquire the bonds but shall not be less 16 than zero. 17 (v) Eight percent of net interest income, not less than zero, from 18 reverse repurchase agreements and securities borrowing agreements shall 19 be included in the numerator of the receipts fraction. Net interest 20 income, not less than zero, from reverse repurchase agreements and secu- 21 rities borrowing agreements shall be included in the denominator of the 22 receipts fraction. Net interest income from reverse repurchase agree- 23 ments and securities borrowing agreements shall be determined for 24 purposes of this subdivision after the deduction of the interest expense 25 from the taxpayer's repurchase agreements and securities lending agree- 26 ments but shall not be less than zero. For this calculation, the amount 27 of such interest expense shall be the interest expense associated with 28 the sum of the value of the taxpayer's repurchase agreements where it is 29 the seller/borrower plus the value of the taxpayer's securities lending 30 agreements where it is the securities lender, provided such sum is 31 limited to the sum of the value of the taxpayer's reverse repurchase 32 agreements where it is the purchaser/lender plus the value of the 33 taxpayer's securities lending agreements where it is the securities 34 borrower. 35 (vi) Eight percent of the net interest, not less than zero, from 36 federal funds shall be included in the numerator of the receipts frac- 37 tion. The net interest, not less than zero, from federal funds shall be 38 included in the denominator of the receipts fraction. Net interest from 39 federal funds shall be determined after deduction of interest expense 40 from federal funds. 41 (vii) Dividends from stock, net gains, not less than zero, from sales 42 of stock and net gains, not less than zero, from sales of partnership 43 interests shall not be included in either the numerator or denominator 44 of the receipts fraction unless the commissioner of finance determines 45 pursuant to subdivision eleven of this section that inclusion of such 46 dividends and net gains, not less than zero, is necessary to properly 47 reflect the business income or capital of the taxpayer. 48 (viii)(A) Receipts constituting interest from other financial instru- 49 ments shall be included in the numerator of the receipts fraction if the 50 payor is located within the city. Receipts constituting interest from 51 other financial instruments, whether the payor is within or without the 52 city, shall be included in the denominator of the receipts fraction. 53 (B) Net gains, not less than zero, from sales of other financial 54 instruments and other income, not less than zero, from other financial 55 instruments where the purchaser or payor is located within the city 56 shall be included in the numerator of the receipts fraction, providedS. 8474 645 1 that, if the purchaser or payor is a registered securities broker or 2 dealer or the transaction is made through a licensed exchange, then 3 eight percent of the net gains, not less than zero, or other income, not 4 less than zero, shall be included in the numerator of the receipts frac- 5 tion. Net gains, not less than zero, from sales of other financial 6 instruments and other income, not less than zero, from other financial 7 instruments shall be included in the denominator of the receipts frac- 8 tion. 9 (ix) Net income, not less than zero, from sales of physical commod- 10 ities shall be included in the numerator of the receipts fraction as 11 provided in this clause. The amount of net income from sales of physical 12 commodities included in the numerator of the receipts fraction shall be 13 determined by multiplying the net income from sales of physical commod- 14 ities by a fraction, the numerator of which shall be the amount of 15 receipts from sales of physical commodities actually delivered to points 16 within the city or, if there is no actual delivery of the physical 17 commodity, sold to purchasers located within the city, and the denomina- 18 tor of which shall be the amount of receipts from sales of physical 19 commodities actually delivered to points within and without the city or, 20 if there is no actual delivery of the physical commodity, sold to 21 purchasers located within and without the city. Net income, not less 22 than zero, from sales of physical commodities shall be included in the 23 denominator of the receipts fraction. Net income, not less than zero, 24 from sales of physical commodities shall be determined after the 25 deduction of the cost to acquire or produce the physical commodities. 26 (x)(A) For purposes of this subdivision, "marked to market" means that 27 a financial instrument is, under section four hundred seventy-five or 28 section twelve hundred fifty-six of the internal revenue code, treated 29 by the taxpayer as sold for its fair market value on the last business 30 day of the taxpayer's taxable year. "Marked to market gain or loss" 31 means the gain or loss recognized by the taxpayer under section four 32 hundred seventy-five or section twelve hundred fifty-six of the internal 33 revenue code because the financial instrument is treated as sold for its 34 fair market value on the last business day of the taxpayer's taxable 35 year. 36 (B) The amount of marked to market net gains, not less than zero, from 37 each type of financial instrument that is marked to market included in 38 the numerator of the receipts fraction shall be determined by multiply- 39 ing the marked to market net gains, not less than zero, from such type 40 of financial instrument by a fraction, the numerator of which shall be 41 the numerator of the receipts fraction for net gains from that type of 42 financial instrument determined under the applicable clause of this 43 subparagraph and the denominator of which shall be the denominator of 44 the receipts fraction for net gains from that type of financial instru- 45 ment determined under the applicable clause of this subparagraph. Marked 46 to market net gains, not less than zero, from financial instruments for 47 which the numerator of the receipts fraction for net gains is determined 48 under this subparagraph shall be included in the denominator of the 49 receipts fraction. 50 (C) If the type of financial instrument that is marked to market is 51 not otherwise sourced by the taxpayer under this subparagraph, or if the 52 taxpayer has a net loss from the sales of that type of financial instru- 53 ment under the applicable clause of this subparagraph, the amount of 54 marked to market net gains, not less than zero, from that type of finan- 55 cial instrument included in the numerator of the receipts fraction shall 56 be determined by multiplying the marked to market net gains, but notS. 8474 646 1 less than zero, from that type of financial instrument by a fraction, 2 the numerator of which shall be the sum of the amount of receipts 3 included in the numerator of the receipts fraction under clauses (i) 4 through (ix) of this subparagraph and subclause (B) of this clause, and 5 the denominator of which shall be the sum of the amount of receipts 6 included in the denominator of the receipts fraction under clauses (i) 7 through (ix) of this subparagraph and subclause (B) of this clause. 8 Marked to market net gains, not less than zero, for which the amount to 9 be included in the numerator of the receipts fraction is determined 10 under this subparagraph shall be included in the denominator of the 11 receipts fraction. 12 (b) Receipts of a registered securities broker or dealer from securi- 13 ties or commodities broker or dealer activities described in this para- 14 graph shall be deemed to be generated within the city as described in 15 subparagraphs one through eight of this paragraph. Receipts from such 16 activities generated within the city shall be included in the numerator 17 of the receipts fraction. Receipts from such activities generated within 18 and without the city shall be included in the denominator of the 19 receipts fraction. For the purposes of this paragraph, the term "securi- 20 ties" shall have the same meaning as in paragraph two of subsection (c) 21 of section four hundred seventy-five of the internal revenue code and 22 the term "commodities" shall have the same meaning as in paragraph two 23 of subsection (e) of section four hundred seventy-five of the internal 24 revenue code. 25 (1) Receipts constituting brokerage commissions derived from the 26 execution of securities or commodities purchase or sales orders for the 27 accounts of customers shall be deemed to be generated within the city if 28 the mailing address in the records of the taxpayer of the customer who 29 is responsible for paying such commissions is within the city. 30 (2) Receipts constituting margin interest earned on behalf of broker- 31 age accounts shall be deemed to be generated within the city if the 32 mailing address in the records of the taxpayer of the customer who is 33 responsible for paying such margin interest is within the city. 34 (3) (i) Receipts constituting fees earned by the taxpayer for advisory 35 services to a customer in connection with the underwriting of securities 36 for such customer, such customer being the entity that is contemplating 37 issuing or is issuing securities, or fees earned by the taxpayer for 38 managing an underwriting shall be deemed to be generated within the city 39 if the mailing address in the records of the taxpayer of such customer 40 who is responsible for paying such fees is within the city. 41 (ii) Receipts constituting the primary spread of selling concession 42 from underwritten securities shall be deemed to be generated within the 43 city if the customer is located within the city. 44 (iii) The term "primary spread" means the difference between the price 45 paid by the taxpayer to the issuer of the securities being marketed and 46 the price received from the subsequent sale of the underwritten securi- 47 ties at the initial public offering price, less any selling concession 48 and any fees paid to the taxpayer for advisory services or any manager's 49 fees, if such fees are not paid by the customer to the taxpayer sepa- 50 rately. The term "public offering price" means the price agreed upon by 51 the taxpayer and the issuer at which the securities are to be offered to 52 the public. The term "selling concession" means the amount paid to the 53 taxpayer for participating in the underwriting of a security where the 54 taxpayer is not the lead underwriter. 55 (4) Receipts constituting account maintenance fees shall be deemed to 56 be generated within the city if the mailing address in the records ofS. 8474 647 1 the taxpayer of the customer who is responsible for paying such account 2 maintenance fees is within the city. 3 (5) Receipts constituting fees for management or advisory services, 4 including fees for advisory services in relation to merger or acquisi- 5 tion activities, but excluding fees paid for services described in para- 6 graph (d) of this subdivision, shall be deemed to be generated within 7 the city if the mailing address in the records of the taxpayer of the 8 customer who is responsible for paying such fees is within the city. 9 (6) Receipts constituting interest earned by the taxpayer on loans and 10 advances made by the taxpayer to a corporation affiliated with the 11 taxpayer but with which the taxpayer is not permitted or required to 12 file a combined report pursuant to section 11-654.3 of this subchapter 13 shall be deemed to arise from services performed at the principal place 14 of business of such affiliated corporation. 15 (7) If the taxpayer receives any of the receipts enumerated in subpar- 16 agraphs one through four of this paragraph as a result of a securities 17 correspondent relationship such taxpayer has with another broker or 18 dealer with the taxpayer acting in this relationship as the clearing 19 firm, such receipts shall be deemed to be generated within the city to 20 the extent set forth in each of such subparagraphs. The amount of such 21 receipts shall exclude the amount the taxpayer is required to pay to the 22 correspondent firm for such correspondent relationship. If the taxpayer 23 receives any of the receipts enumerated in subparagraphs one through 24 four of this paragraph as a result of a securities correspondent 25 relationship such taxpayer has with another broker or dealer with the 26 taxpayer acting in this relationship as the introducing firm, such 27 receipts shall be deemed to be generated within the city to the extent 28 set forth in each of such subparagraphs. 29 (8) If, for the purposes of subparagraph one, subparagraph two, clause 30 (i) of subparagraph three, subparagraph four, or subparagraph five of 31 this paragraph, the taxpayer is unable from its records to determine the 32 mailing address of the customer, eight percent of the receipts shall be 33 included in the numerator of the receipts fraction. 34 (c) Receipts relating to the bank, credit, travel, and entertainment 35 card activities described in this paragraph shall be deemed to be gener- 36 ated within the city as described in subparagraphs one through four of 37 this paragraph. Receipts from such activities generated within the city 38 shall be included in the numerator of the receipts fraction. Receipts 39 from such activities generated within and without the city shall be 40 included in the denominator of the receipts fraction. 41 (1) Receipts constituting interest, and fees and penalties in the 42 nature of interest, from bank, credit, travel and entertainment card 43 receivables shall be deemed to be generated within the city if the mail- 44 ing address of the card holder in the records of the taxpayer is within 45 the city; 46 (2) Receipts from service charges and fees from such cards shall be 47 deemed to be generated within the city if the mailing address of the 48 card holder in the records of the taxpayer is within the city; 49 (3) Receipts from merchant discounts shall be deemed to be generated 50 within the city if the merchant is located within the city. In the case 51 of a merchant with locations both within and without the city, only 52 receipts from merchant discounts attributable to sales made from 53 locations within the city are allocated to the city. It shall be 54 presumed that the location of the merchant is the address of the 55 merchant shown on the invoice submitted by the merchant to the taxpayer; 56 andS. 8474 648 1 (4) Receipts from credit card authorization processing, and clearing 2 and settlement processing received by a credit card processor shall be 3 deemed to be generated within the city if the location where the credit 4 card processor's customer accesses the credit card processor's network 5 is located within the city. The amount of all other receipts received by 6 a credit card processor not specifically addressed in subdivisions one 7 through nine or subdivision twelve of this section deemed to be gener- 8 ated within the city shall be determined by multiplying the total amount 9 of such other receipts by the average of (i) eight percent and (ii) the 10 percent of Staten Island access points. The percent of Staten Island 11 access points shall be the number of locations in Staten Island from 12 which the credit card processor's customers access the credit card 13 processor's network divided by the total number of locations in the 14 United States where the credit card processor's customers access the 15 credit card processor's network. 16 (d) Receipts received from an investment company arising from the sale 17 of management, administration or distribution services to such invest- 18 ment company shall be included in the denominator of the receipts frac- 19 tion. The portion of such receipts included in the numerator of the 20 receipts fraction, such portion referred to herein as the Staten Island 21 portion, shall be determined as provided in this paragraph. 22 (1) The Staten Island portion shall be the product of the total of 23 such receipts from the sale of such services and a fraction. The numera- 24 tor of that fraction shall be the sum of the monthly percentages, as 25 defined hereinafter, determined for each month of the investment compa- 26 ny's taxable year for federal income tax purposes which taxable year 27 ends within the taxable year of the taxpayer, but excluding any month 28 during which the investment company had no outstanding shares. The 29 monthly percentage for each such month shall be determined by dividing 30 the number of shares in the investment company that are owned on the 31 last day of the month by shareholders that are located in the city by 32 the total number of shares in the investment company outstanding on that 33 date. The denominator of the fraction shall be the number of such month- 34 ly percentages. 35 (2)(i) For purposes of this paragraph, an individual, estate or trust 36 shall be deemed to be located within the city if his, her or its mailing 37 address in the records of the investment company is located within the 38 city. A business entity is deemed to be located within the city if its 39 commercial domicile is located within the city. 40 (ii) For purposes of this paragraph, the term "investment company" 41 means a regulated investment company, as defined in section eight 42 hundred fifty-one of the internal revenue code, and a partnership to 43 which subsection (a) of section seven thousand seven hundred four of the 44 internal revenue code applies, by virtue of paragraph three of 45 subsection (c) of section seven thousand seven hundred four of such 46 code, and that meets the requirements of subsection (b) of section eight 47 hundred fifty-one of such code. The provisions of this subparagraph 48 shall be applied to the taxable year for federal income tax purposes of 49 the business entity that is asserted to constitute an investment company 50 that ends within the taxable year of the taxpayer. 51 (iii) For purposes of this paragraph, the term "receipts received from 52 an investment company" includes amounts received directly from an 53 investment company as well as amounts received from the shareholders in 54 such investment company, in their capacity as such. 55 (iv) For purposes of this paragraph, the term "management services" 56 means the rendering of investment advice to an investment company,S. 8474 649 1 making determinations as to when sales and purchases of securities are 2 to be made on behalf of an investment company, or the selling or 3 purchasing of securities constituting assets of an investment company, 4 and related activities, but only where such activity or activities are 5 performed pursuant to a contract with the investment company entered 6 into pursuant to subsection (a) of section fifteen of the federal 7 investment company act of nineteen hundred forty, as amended. 8 (v) For purposes of this paragraph, the term "distribution services" 9 means the services of advertising, servicing investor accounts, includ- 10 ing redemptions, marketing shares or selling shares of an investment 11 company, but, in the case of advertising, servicing investor accounts, 12 including redemptions, or marketing shares, only where such service is 13 performed by a person who is, or was, in the case of a closed end compa- 14 ny, also engaged in the service of selling such shares. In the case of 15 an open end company, such service of selling shares must be performed 16 pursuant to a contract entered into pursuant to subsection (b) of 17 section fifteen of the federal investment company act of nineteen 18 hundred forty, as amended. 19 (vi) For purposes of this paragraph, the term "administration 20 services" includes clerical, accounting, bookkeeping, data processing, 21 internal auditing, legal and tax services performed for an investment 22 company but only if the provider of such service or services during the 23 taxable year in which such service or services are sold also sells 24 management or distribution services, as defined in subparagraph (v) of 25 this paragraph, to such investment company. 26 (e) For purposes of this subdivision, a taxpayer shall use the follow- 27 ing hierarchy to determine the commercial domicile of a business entity, 28 based on the information known to the taxpayer or information that would 29 be known upon reasonable inquiry: (1) the seat of management and control 30 of the business entity; and (2) the billing address of the business 31 entity in the taxpayer's records. The taxpayer must exercise due dili- 32 gence before rejecting the first method in this hierarchy and proceeding 33 to the next method. 34 (f) For purposes of this subdivision, the term "registered securities 35 broker or dealer" means a broker or dealer registered as such by the 36 securities and exchange commission or a broker or dealer registered as 37 such by the commodities futures trading commission, and shall include an 38 OTC derivatives dealer as defined under regulations of the securities 39 and exchange commission at title 17, part 240, section 3b-12 of the code 40 of federal regulations (17 CFR 240.3b-12). 41 5-a. Notwithstanding any other provision of this section, net global 42 intangible low-taxed income shall be included in the receipts fraction 43 as provided in this subdivision. Receipts constituting net global intan- 44 gible low-taxed income shall not be included in the numerator of the 45 receipts fraction. Receipts constituting net global intangible low-taxed 46 income shall be included in the denominator of the receipts fraction. 47 For purposes of this subdivision, the term "net global intangible low- 48 taxed income" means the amount required to be included in the taxpayer's 49 federal gross income pursuant to subsection (a) of section nine hundred 50 fifty-one-D of the internal revenue code less the amount of the 51 deduction allowed under clause (i) of subparagraph (B) of paragraph one 52 of subdivision (a) of section two hundred fifty of such code. 53 6. Receipts from the conduct of a railroad business, including surface 54 railroad, whether or not operated by steam, subway railroad, elevated 55 railroad, palace car or sleeping car business, or a trucking business 56 shall be included in the numerator of the receipts fraction as follows.S. 8474 650 1 The amount of receipts from the conduct of a railroad business or a 2 trucking business included in the numerator of the receipts fraction 3 shall be determined by multiplying the amount of receipts from such 4 business by a fraction, the numerator of which shall be the miles in 5 such business within the city during the period covered by the taxpay- 6 er's report and the denominator of which shall be the miles in such 7 business within and without the city during such period. Receipts from 8 the conduct of the railroad business or a trucking business shall be 9 included in the denominator of the receipts fraction. 10 7. (a) Receipts of a taxpayer acting as principal from the activity of 11 air freight forwarding and like indirect air carrier receipts arising 12 from such activity shall be included in the numerator of the receipts 13 fraction as follows: one hundred percent of such receipts if both the 14 pickup and delivery associated with such receipts are made within the 15 city and fifty percent of such receipts if either the pickup or delivery 16 associated with such receipts is made within this city. Such receipts, 17 whether the pickup or delivery associated with the receipts is within or 18 without the city, shall be included in the denominator of the receipts 19 fraction. 20 (b)(1)(i) The portion of receipts of a taxpayer from aviation 21 services, other than services described in paragraph (a) of this subdi- 22 vision, but including the receipts of a qualified air freight forwarder, 23 to be included in the numerator of the receipts fraction shall be deter- 24 mined by multiplying its receipts from such aviation services by a 25 percentage which is equal to the arithmetic average of the following 26 three percentages: 27 (A) the percentage determined by dividing the aircraft arrivals and 28 departures within the city by the taxpayer during the period covered by 29 its report by the total aircraft arrivals and departures within and 30 without the city during such period; provided, however, arrivals and 31 departures solely for maintenance or repair, refueling, where no debar- 32 kation or embarkation of traffic occurs, arrivals and departures of 33 ferry and personnel training flights or arrivals and departures in the 34 event of emergency situations shall not be included in computing such 35 arrival and departure percentage; provided, further, the commissioner of 36 finance may also exempt from such percentage aircraft arrivals and 37 departures of all non-revenue flights including flights involving the 38 transportation of officers or employees receiving air transportation to 39 perform maintenance or repair services or where such officers or employ- 40 ees are transported in conjunction with an emergency situation or the 41 investigation of an air disaster, other than on a scheduled flight; 42 provided, however, that arrivals and departures of flights transporting 43 officers and employees receiving air transportation for purposes other 44 than specified above, without regard to remuneration, shall be included 45 in computing such arrival and departure percentage; 46 (B) the percentage determined by dividing the revenue tons handled by 47 the taxpayer at airports within the city during such period by the total 48 revenue tons handled by it at airports within and without the city 49 during such period; and 50 (C) the percentage determined by dividing the taxpayer's originating 51 revenue within the city for such period by its total originating revenue 52 within and without the city for such period. 53 (ii) As used herein the term "aircraft arrivals and departures" means 54 the number of landings and takeoffs of the aircraft of the taxpayer and 55 the number of air pickups and deliveries by the aircraft of such taxpay- 56 er; the term "originating revenue" means revenue to the taxpayer fromS. 8474 651 1 the transportation of revenue passengers and revenue property first 2 received by the taxpayer either as originating or connecting traffic at 3 airports; and the term "revenue tons handled by the taxpayer at 4 airports" means the weight in tons of revenue passengers, at two hundred 5 pounds per passenger, and revenue cargo first received either as origi- 6 nating or connecting traffic or finally discharged by the taxpayer at 7 airports. 8 (2) All such receipts of a taxpayer from aviation services described 9 in this paragraph shall be included in the denominator of the receipts 10 fraction. 11 (3) A corporation is a qualified air freight forwarder with respect to 12 another corporation: 13 (i) if it owns or controls either directly or indirectly all of the 14 capital stock of such other corporation, or if all of its capital stock 15 is owned or controlled either directly or indirectly by such other 16 corporation, or if all of the capital stock of both corporations is 17 owned or controlled either directly or indirectly by the same interests; 18 (ii) if it is principally engaged in the business of air freight 19 forwarding; and 20 (iii) if its air freight forwarding business is carried on principally 21 with the airline or airlines operated by such other corporation. 22 8. (a) The amount of receipts from sales of advertising in newspapers 23 or periodicals included in the numerator of the receipts fraction shall 24 be determined by multiplying the total of such receipts by a fraction, 25 the numerator of which shall be the number of newspapers and periodicals 26 delivered to points within the city and the denominator of which shall 27 be the number of newspapers and periodicals delivered to points within 28 and without the city. The total of such receipts from sales of advertis- 29 ing in newspapers or periodicals shall be included in the denominator of 30 the receipts fraction. 31 (b) The amount of receipts from sales of advertising on television or 32 radio included in the numerator of the receipts fraction shall be deter- 33 mined by multiplying the total of such receipts by a fraction, the 34 numerator of which shall be the number of viewers or listeners within 35 the city and the denominator of which shall be the number of viewers or 36 listeners within and without the city. The total of such receipts from 37 sales of advertising on television or radio shall be included in the 38 denominator of the receipts fraction. 39 (c) The amount of receipts from sales of advertising not described in 40 paragraph (a) or (b) of this subdivision that is furnished, provided or 41 delivered to, or accessed by the viewer or listener through the use of 42 wire, cable, fiber-optic, laser, microwave, radio wave, satellite or 43 similar successor media or any combination thereof, included in the 44 numerator of the receipts fraction shall be determined by multiplying 45 the total of such receipts by a fraction, the numerator of which shall 46 be the number of viewers or listeners within the city and the denomina- 47 tor of which shall be the number of viewers or listeners within and 48 without the city. The total of such receipts from sales of advertising 49 described in this paragraph shall be included in the denominator of the 50 receipts fraction. 51 9. Receipts from the transportation or transmission of gas through 52 pipes shall be included in the numerator of the receipts fraction as 53 follows. The amount of receipts from the transportation or transmission 54 of gas through pipes included in the numerator of the receipts fraction 55 shall be determined by multiplying the total amount of such receipts by 56 a fraction, the numerator of which shall be the taxpayer's transporta-S. 8474 652 1 tion units within the city and the denominator of which shall be the 2 taxpayer's transportation units within and without the city. A transpor- 3 tation unit is the transportation of one cubic foot of gas over a 4 distance of one mile. The total amount of receipts from the transporta- 5 tion or transmission of gas through pipes shall be included in the 6 denominator of the receipts fraction. 7 10. (a) Receipts from services not addressed in subdivisions one 8 through nine or subdivision twelve of this section and other business 9 receipts not addressed in such subdivisions shall be included in the 10 numerator of the receipts fraction if the location of the customer is 11 within the city. Such receipts from customers within and without the 12 city shall be included in the denominator of the receipts fraction. 13 Whether the receipts are included in the numerator of the receipts frac- 14 tion shall be determined according to the hierarchy of methods set forth 15 in paragraph (b) of this subdivision. The taxpayer must exercise due 16 diligence under each method described in such paragraph before rejecting 17 it and proceeding to the next method in the hierarchy, and must base its 18 determination on information known to the taxpayer or information that 19 would be known to the taxpayer upon reasonable inquiry. 20 (b) The hierarchy of methods is as follows: (1) the benefit is 21 received in the city; (2) delivery destination; (3) the receipts frac- 22 tion for such receipts within the city determined pursuant to this 23 subdivision for the preceding taxable year; or (4) the receipts fraction 24 in the current taxable year determined pursuant to this subdivision for 25 those receipts that can be sourced using the hierarchy of sourcing meth- 26 ods in subparagraphs one and two of this paragraph. 27 11. If it shall appear that the receipts fraction determined pursuant 28 to this section does not result in a proper reflection of the taxpayer's 29 business income or capital within the city, the commissioner of finance 30 is authorized in his or her discretion to adjust it, or the taxpayer may 31 request that the commissioner of finance adjust it, by (a) excluding one 32 or more items in such determination, (b) including one or more other 33 items in such determination, or (c) any other similar or different meth- 34 od calculated to effect a fair and proper allocation of the business 35 income and capital reasonably attributed to the city. The party seeking 36 the adjustment shall bear the burden of proof to demonstrate that the 37 receipts fraction determined pursuant to this section does not result in 38 a proper reflection of the taxpayer's business income or capital within 39 the city and that the proposed adjustment is appropriate. 40 12. Receipts from the operation of vessels shall be included in the 41 numerator of the receipts fraction as follows. The amount of receipts 42 from the operation of vessels included in the numerator of the receipts 43 fraction shall be determined by multiplying the amount of such receipts 44 by a fraction, the numerator of which shall be the aggregate number of 45 working days of the vessels owned or leased by the taxpayer in territo- 46 rial waters of the city during the period covered by the taxpayer's 47 report and the denominator of which shall be the aggregate number of 48 working days of all vessels owned or leased by the taxpayer during such 49 period. Receipts from the operation of vessels shall be included in the 50 denominator of the receipts fraction. 51 § 11-654.3 Combined reports. 1. (a) The tax on a combined report shall 52 be the highest of (1) the combined business income multiplied by the tax 53 rate specified in clause (i) of subparagraph one of paragraph (e) of 54 subdivision one of section 11-654 of this subchapter; (2) the combined 55 capital multiplied by the tax rate specified in clause (ii) of subpara- 56 graph one of paragraph (e) of subdivision one of section 11-654 of thisS. 8474 653 1 subchapter, but not exceeding the limitation provided for in such clause 2 (ii); or (3) the fixed dollar minimum that is attributable to the desig- 3 nated agent of the combined group. In addition, the tax on a combined 4 report shall include the fixed dollar minimum tax specified in clause 5 (iv) of subparagraph one of paragraph (e) of subdivision one of section 6 11-654 of this subchapter for each member of the combined group, other 7 than the designated agent, that is a taxpayer. 8 (b) The combined business income base is the amount of the combined 9 business income of the combined group that is allocated to the city, 10 reduced by any prior net operating loss conversion subtraction and any 11 net operating loss deduction for the combined group. The combined capi- 12 tal base is the amount of the combined capital of the combined group 13 that is allocated to the city. 14 2. (a) Except as provided in paragraph (c) of this subdivision, any 15 taxpayer (1) which owns or controls either directly or indirectly more 16 than fifty percent of the voting power of the capital stock of one or 17 more other corporations, or (2) more than fifty percent of the voting 18 power of the capital stock of which is owned or controlled either 19 directly or indirectly by one or more other corporations, or (3) more 20 than fifty percent of the voting power of the capital stock of which and 21 the capital stock of one or more other corporations, is owned or 22 controlled, directly or indirectly, by the same interests, and (4) that 23 is engaged in a unitary business with those corporations, hereinafter 24 referred to as "related corporations", shall make a combined report with 25 those other corporations. 26 (b) A corporation required to make a combined report within the mean- 27 ing of this section shall also include (1) a captive REIT and a captive 28 RIC; (2) a combinable captive insurance company; and (3) an alien corpo- 29 ration that satisfies the conditions in paragraph (a) of this subdivi- 30 sion if (i) under any provision of the internal revenue code, that 31 corporation is treated as a "domestic corporation" as defined in section 32 seven thousand seven hundred one of the internal revenue code, or (ii) 33 it has effectively connected income for the taxable year pursuant to 34 clause (iii) of the opening paragraph of subdivision eight of section 35 11-652 of this subchapter. 36 (c) A corporation required or permitted to make a combined report 37 under this section does not include (1) a corporation that is taxable 38 under a tax imposed by subchapter two or three of this chapter or chap- 39 ter eleven of this title, except for a vendor of utility services that 40 is taxable under both chapter eleven of this title and this subchapter, 41 or would be taxable under a tax imposed by subchapter two or three of 42 this chapter or chapter eleven of this title, except for a vendor of 43 utility services that is taxable under both chapter eleven of this title 44 and this subchapter, or would have been taxable as an insurance corpo- 45 ration under the former part IV, title R, chapter forty-six of the 46 administrative code as in effect on June thirtieth, nineteen hundred 47 seventy-four; (2) a REIT that is not a captive REIT, and a RIC that is 48 not a captive RIC; or (3) an alien corporation that under any provision 49 of the internal revenue code is not treated as a "domestic corporation" 50 as defined in section seven thousand seven hundred one of such code and 51 has no effectively connected income for the taxable year pursuant to 52 clause (iii) of the opening paragraph of subdivision eight of section 53 11-652 of this subchapter. If a corporation is subject to tax under this 54 subchapter solely as a result of its ownership of a limited partner 55 interest in a limited partnership that is doing business, employing 56 capital, owning or leasing property, or maintaining an office in thisS. 8474 654 1 city, and none of the corporation's related corporations are subject to 2 tax under this subchapter, such corporation shall not be required or 3 permitted to file a combined report under this section with such related 4 corporations. 5 (d) A combined report shall be filed by the designated agent of the 6 combined group as determined under subdivision seven of this section. 7 3. (a) Subject to the provisions of paragraph (c) of subdivision two 8 of this section, a taxpayer may elect to treat as its combined group all 9 corporations that meet the ownership requirements described in paragraph 10 (a) of subdivision two of this section, such corporations collectively 11 referred to in this subdivision as the "commonly owned group". If that 12 election is made, the commonly owned group shall calculate the combined 13 business income, combined business capital, and fixed dollar minimum 14 amount of all members of the group in accordance with paragraph four of 15 this subdivision, whether or not that business income or business capi- 16 tal is from a single unitary business. 17 (b) The election under this subdivision shall be made on an original, 18 timely filed return, determined with regard to extensions, of the 19 combined group. Any corporation entering a commonly owned group subse- 20 quent to the year of election shall be included in the combined group 21 and is considered to have waived any objection to its inclusion in the 22 combined group. 23 (c) The election shall be irrevocable, and binding for and applicable 24 to the taxable year for which it is made and for the next six taxable 25 years. The election will automatically be renewed for another seven 26 taxable years after it has been in effect for seven taxable years unless 27 it is affirmatively revoked. The revocation shall be made on an 28 original, timely filed return, determined with regard to extensions, for 29 the first taxable year after the completion of a seven year period for 30 which an election under this subdivision was in place. In the case of a 31 revocation, a new election under this subdivision shall not be permitted 32 in any of the immediately following three taxable years. In determining 33 the seven and three year periods described in this paragraph, short 34 taxable years shall not be considered or counted. 35 4. (a) In computing the tax bases for a combined report, the combined 36 group shall generally be treated as a single corporation, except as 37 otherwise provided, and subject to any regulations or guidance issued by 38 the commissioner of finance or the department of finance. 39 (b)(1) In computing combined business income, all intercorporate divi- 40 dends shall be eliminated, and all other intercorporate transactions 41 shall be deferred in a manner similar to the United States treasury 42 department regulations relating to intercompany transactions under 43 section fifteen hundred two of the internal revenue code. 44 (2) In computing combined capital, all intercorporate stockholdings, 45 intercorporate bills, intercorporate notes receivable and payable, 46 intercorporate accounts receivable and payable, and other intercorporate 47 indebtedness, shall be eliminated. 48 (c) Qualification for credits, including any limitations thereon, 49 shall be determined separately for each of the members of the combined 50 group, and shall not be determined on a combined group basis, except as 51 otherwise provided. However, the credits shall be applied against the 52 combined tax of the group. To the extent that a provision of section 53 11-654 of this subchapter, or any other applicable section of this 54 subchapter, limits a credit to the fixed dollar minimum amount 55 prescribed in clause (iv) of subparagraph one of paragraph (e) of subdi- 56 vision one of section 11-654 of this subchapter, such fixed dollar mini-S. 8474 655 1 mum amount shall be the fixed dollar minimum amount that is attributable 2 to the designated agent of the combined group. 3 (d)(1) A net operating loss deduction is allowed in computing the 4 combined business income base. Such deduction may reduce the tax on the 5 combined business income base to the higher of the tax on the combined 6 capital or the fixed dollar minimum amount that is attributable to the 7 designated agent of the combined group. A combined net operating loss 8 deduction is equal to the amount of combined net operating loss or loss- 9 es from one or more taxable years that are carried forward or carried 10 back to a particular taxable year. A combined net operating loss is the 11 combined business loss incurred in a particular taxable year multiplied 12 by the combined business allocation percentage for that year determined 13 as provided in subdivision five of this section. 14 (2) The combined net operating loss deduction and combined net operat- 15 ing loss are also subject to the provisions contained in paragraphs (a) 16 through (g) of subdivision three of section 11-654.1 of this subchapter. 17 (3) In the case of a corporation that files a combined report, either 18 in the year the net operating loss is incurred or in the year in which a 19 deduction is claimed on account of the loss, the combined net operating 20 loss deduction is determined as if the combined group is a single corpo- 21 ration and, to the extent possible and not otherwise inconsistent with 22 this subdivision, is subject to the same limitations that would apply 23 for federal income tax purposes under the internal revenue code and the 24 code of federal regulations as if such corporation had filed for such 25 taxable year a consolidated federal income tax return with the same 26 corporations included in the combined report. If a corporation files a 27 combined report, regardless of whether it filed a separate return or 28 consolidated return for federal income tax purposes, the net operating 29 loss and net operating loss deduction for the combined group must be 30 computed as if the corporation had filed a consolidated return for the 31 same corporations for federal income tax purposes. 32 (4) In general, any net operating loss carryover from a year in which 33 a combined report was filed shall be based on the combined net operating 34 loss of the group of corporations filing such report. The portion of the 35 combined loss attributable to any member of the group that files a sepa- 36 rate report for a succeeding taxable year will be an amount bearing the 37 same relation to the combined loss as the net operating loss of such 38 corporation bears to the total net operating loss of all members of the 39 group having such losses to the extent that they are taken into account 40 in computing the combined net operating loss. 41 (d-1) A prior net operating loss conversion subtraction is allowed in 42 computing the combined business income base, as provided in subdivisions 43 one and two of section 11-654.1 of this subchapter. Such subtraction may 44 reduce the tax on combined business income to the higher of the tax on 45 combined capital or the fixed dollar minimum amount that is attributable 46 to the designated agent of the combined group. 47 (e)(i) Any election made pursuant to paragraph (b) of subdivision 48 five, paragraphs (b) and (c) of subdivision five-a of section 11-652 of 49 this subchapter, and paragraph (g) of subdivision three of section 50 11-654.1 of this subchapter shall apply to all members of the combined 51 group. 52 (ii) The determination of whether or not the limitation on investment 53 income provided in subparagraph (iii) of paragraph (a) of subdivision 54 five of section 11-652 of this subchapter to the combined group shall be 55 based on the investment income of the combined group, determined withoutS. 8474 656 1 regard to interest expenses attributable to investment capital or 2 investment income, and the entire net income of the combined group. 3 (f)(1) In the case of a captive REIT or captive RIC required under 4 this section to be included in a combined report, entire net income 5 shall be computed as required under subdivision seven, in the case of a 6 captive REIT, or subdivision eight, in the case of a captive RIC, of 7 section 11-653 of this subchapter. However, the deduction under the 8 internal revenue code for dividends paid by the captive REIT or captive 9 RIC to any member of the affiliated group that includes the corporation 10 that directly or indirectly owns over fifty percent of the voting stock 11 of the captive REIT or captive RIC shall not be allowed. For purposes of 12 this subparagraph, the term "affiliated group" means "affiliated group" 13 as defined in section fifteen hundred four of the internal revenue code, 14 but without regard to the exceptions provided for in subsection (b) of 15 that section. 16 (2) In the case of a combinable captive insurance company required 17 under this section to be included in a combined report, entire net 18 income shall be computed as required by subdivision eight of section 19 11-652 of this subchapter. 20 (g) If more than one member of a combined group is eligible for any of 21 the modifications described in paragraphs (q), (r) or (s) of subdivision 22 eight of section 11-652 of this subchapter, all such members must 23 utilize the same modification. 24 5. (a) In determining the business allocation percentage for a 25 combined report, the receipts, net income, net gains and other items of 26 each member of the combined group, whether or not they are a taxpayer, 27 are included and intercorporate receipts, income and gains are elimi- 28 nated. Receipts, net income, net gains and other items are sourced, and 29 the amounts allowed in the receipts fraction are determined, as provided 30 in section 11-654.2 of this subchapter. 31 (b) An election made to allocate income and gains from qualifying 32 financial instruments pursuant to subparagraph one of paragraph (a) of 33 subdivision five of section 11-654.2 of this subchapter shall apply to 34 all members of the combined group. 35 6. Every member of the combined group that is subject to tax under 36 this article shall be jointly and severally liable for the tax due 37 pursuant to a combined report. 38 7. Each combined group shall appoint a designated agent for the 39 combined group, which shall be a taxpayer. Only the designated agent may 40 act on behalf of the members of the combined group for matters relating 41 to the combined report. 42 § 11-655 Reports. 1. Every corporation having an officer, agent or 43 representative within the city, shall annually on or before March 44 fifteenth for taxable years beginning before January first, two thousand 45 sixteen, and annually on or before April fifteenth for taxable years 46 beginning on or after January first, two thousand sixteen, transmit to 47 the commissioner of finance a report in a form prescribed by the commis- 48 sioner of finance, setting forth such information as the commissioner of 49 finance may prescribe, except that a corporation that reports on the 50 basis of a fiscal year shall transmit such report, for taxable years 51 beginning before January first, two thousand sixteen, within two and 52 one-half months after the close of its fiscal year, and, for taxable 53 years beginning after January first, two thousand sixteen, within three 54 and one-half months after the close of its fiscal year. Every taxpayer 55 that ceases to do business in the city or to be subject to the tax 56 imposed by this subchapter shall transmit to the commissioner of financeS. 8474 657 1 a report on the date of such cessation or at such other time as the 2 commissioner of finance may require covering each year or period for 3 which no report was theretofore filed. Every taxpayer shall also trans- 4 mit such other reports and such facts and information as the commission- 5 er of finance may require in the administration of this subchapter. The 6 commissioner of finance may grant a reasonable extension of time for 7 filing reports whenever good cause exists. 8 An automatic extension of six months for the filing of its annual 9 report shall be allowed any taxpayer if, within the time prescribed by 10 the opening paragraph of this subdivision, whichever is applicable, such 11 taxpayer files with the commissioner of finance an application for 12 extension in such form as the commissioner of finance may prescribe by 13 regulation and pays on or before the date of such filing the amount 14 properly estimated as its tax. 15 2. Every report shall have annexed thereto a certification by the 16 president, vice-president, treasurer, assistant treasurer, chief 17 accounting officer or another officer of the taxpayer duly authorized so 18 to act to the effect that the statements contained therein are true. In 19 the case of an association, within the meaning of paragraph three of 20 section (a) of section seventy-seven hundred one of the internal revenue 21 code, a publicly-traded partnership treated as a corporation for 22 purposes of the internal revenue code pursuant to section seventy-seven 23 hundred four thereof and any business conducted by a trustee or trustees 24 wherein interest or ownership is evidenced by certificates or other 25 written instruments, such certification shall be made by any person duly 26 authorized so to act on behalf of such association, publicly-traded 27 partnership or business. The fact that an individual's name is signed on 28 a certification of the report shall be prima facie evidence that such 29 individual is authorized to sign and certify the report on behalf of the 30 corporation. Blank forms of reports shall be furnished by the commis- 31 sioner of finance, on application, but failure to secure such a blank 32 shall not release any corporation from the obligation of making any 33 report required by this subchapter. 34 2-a. The commissioner of finance may prescribe regulations and 35 instructions requiring returns of information to be made and filed in 36 conjunction with the reports required to be filed pursuant to this 37 section, relating to payments made to shareholders owning, directly or 38 indirectly, individually or in the aggregate, more than fifty percent of 39 the issued capital stock of the taxpayer, where such payments are treat- 40 ed as payments of interest in the computation of entire net income 41 reported on such reports. 42 3. If the amount of taxable income or other basis of tax for any year 43 of any taxpayer as returned to the United States treasury department or 44 the New York state commissioner of taxation and finance is changed or 45 corrected by the commissioner of internal revenue or other officer of 46 the United States or the New York state commissioner of taxation and 47 finance or other competent authority, or where a renegotiation of a 48 contract or subcontract with the United States or the state of New York 49 results in a change in taxable income or other basis of tax, or where a 50 recovery of a war loss results in a computation or recomputation of any 51 tax imposed by the United States or the state of New York, or if a 52 taxpayer, pursuant to subsection (d) of section sixty-two hundred thir- 53 teen of the internal revenue code, executes a notice of waiver of the 54 restrictions provided in subsection (a) of said section, or if a taxpay- 55 er, pursuant to subsection (f) of section one thousand eighty-one of the 56 tax law, executes a notice of waiver of the restrictions provided inS. 8474 658 1 subsection (c) of said section, such taxpayer shall report such changed 2 or corrected taxable income or other basis of tax, or the results of 3 such renegotiation, or such computation, or recomputation, or such 4 execution of such notice of waiver and the changes or corrections of the 5 taxpayer's federal or New York state taxable income or other basis of 6 tax on which it is based, within ninety days, or one hundred twenty 7 days, in the case of a taxpayer making a combined report under this 8 subchapter for such year, after such execution or the final determi- 9 nation of such change or correction or renegotiation, or such computa- 10 tion, or recomputation, or as required by the commissioner of finance, 11 and shall concede the accuracy of such determination or state wherein it 12 is erroneous. The allowance of a tentative carryback adjustment based 13 upon a net operating loss carryback or net capital loss carryback pursu- 14 ant to section sixty-four hundred eleven of the internal revenue code 15 shall be treated as a final determination for purposes of this subdivi- 16 sion. Any taxpayer filing an amended return with such department shall 17 also file within ninety days, or one hundred twenty days, in the case of 18 a taxpayer making a combined report under this subchapter for such year, 19 thereafter an amended report with the commissioner of finance. 20 4. The provisions of section 11-654.3 of this subchapter shall apply 21 to combined reports. 22 5. In case it shall appear to the commissioner of finance that any 23 agreement, understanding or arrangement exists between the taxpayer and 24 any other corporation or any person or firm, whereby the activity, busi- 25 ness, income or capital of the taxpayer within the city is improperly or 26 inaccurately reflected, the commissioner of finance is authorized and 27 empowered, in its discretion and in such manner as it may determine, to 28 adjust items of income, deductions and capital, and to eliminate assets 29 in computing any allocation percentage provided only that any income 30 directly traceable thereto be also excluded from entire net income, so 31 as equitably to determine the tax. Where (a) any taxpayer conducts its 32 activity or business under any agreement, arrangement or understanding 33 in such manner as either directly or indirectly to benefit its members 34 or stockholders, or any of them, or any person or persons directly or 35 indirectly interested in such activity or business, by entering into any 36 transaction at more or less than a fair price which, but for such agree- 37 ment, arrangement or understanding, might have been paid or received 38 therefor, or (b) any taxpayer, a substantial portion of whose capital 39 stock is owned either directly or indirectly by another corporation, 40 enters into any transaction with such other corporation on such terms as 41 to create an improper loss or net income, the commissioner of finance 42 may include in the entire net income of the taxpayer the fair profits, 43 which, but for such agreement, arrangement or understanding, the taxpay- 44 er might have derived from such transaction. Where any taxpayer owns, 45 directly or indirectly, more than fifty percent of the capital stock of 46 another corporation subject to tax under section fifteen hundred two-a 47 of the tax law and fifty percent or less of whose gross receipts for the 48 taxable year consist of premiums, the commissioner of finance may 49 include in the entire net income of the taxpayer, as a deemed distrib- 50 ution, the amount of the net income of the other corporation that is in 51 excess of its net premium income. 52 6. An action may be brought at any time by the corporation counsel at 53 the instance of the commissioner of finance to compel the filing of 54 reports due under this subchapter. 55 7. Reports shall be preserved for five years, and thereafter until the 56 commissioner of finance orders them to be destroyed.S. 8474 659 1 8. Where the New York state commissioner of taxation and finance 2 changes or corrects a taxpayer's sales and compensating use tax liabil- 3 ity with respect to the purchase or use of items for which a sales or 4 compensating use tax credit against the tax imposed by this subchapter 5 was claimed, the taxpayer shall report such change or correction to the 6 commissioner of finance within ninety days of the final determination of 7 such change or correction, or as required by the commissioner of 8 finance, and shall concede the accuracy of such determination or state 9 wherein it is erroneous. Any taxpayer filing an amended return or report 10 relating to the purchase or use of such items shall also file within 11 ninety days thereafter a copy of such amended return or report with the 12 commissioner of finance. 13 § 11-656 Payment and lien of tax. 1. To the extent the tax imposed by 14 section 11-653 of this subchapter shall not have been previously paid 15 pursuant to section 11-658 of this subchapter: 16 (a) such tax, or the balance thereof, shall be payable to the commis- 17 sioner of finance in full at the time the report is required to be 18 filed; and 19 (b) such tax, or the balance thereof, imposed on any taxpayer which 20 ceases to do business in the city or to be subject to the tax imposed by 21 this subchapter shall be payable to the commissioner of finance at the 22 time the report is required to be filed; all other taxes of any such 23 taxpayer, which pursuant to the this subdivision would otherwise be 24 payable subsequent to the time such report is required to be filed, 25 shall nevertheless be payable at such time. If the taxpayer, within the 26 time prescribed by section 11-655 of this subchapter, shall have applied 27 for an automatic extension of time to file its annual report and shall 28 have paid to the commissioner of finance on or before the date such 29 application is filed an amount properly estimated as provided by said 30 section, the only amount payable in addition to the tax shall be inter- 31 est at the underpayment rate set by the commissioner of finance pursuant 32 to section 11-687 of this chapter, or, if no rate is set, at the rate of 33 seven and one-half percent per annum upon the amount by which the tax, 34 or the portion thereof payable on or before the date the report was 35 required to be filed, exceeds the amount so paid, provided that: 36 (1) an amount so paid shall be deemed properly estimated if it is 37 either: (i) not less than ninety percent of the tax as finally deter- 38 mined, or (ii) not less than the tax shown on the taxpayer's report for 39 the preceding taxable year, if such preceding year was a taxable year of 40 twelve months; and 41 (2) the time when a report is required to be filed shall be determined 42 without regard to any extension of time for filing such report. 43 2. The commissioner of finance may grant a reasonable extension of 44 time for payment of any tax imposed by this subchapter under such condi- 45 tions as the commissioner of finance deems just and proper. 46 3. Intentionally omitted. 47 § 11-657 Declaration of estimated tax. 1. Every taxpayer subject to 48 the tax imposed by section 11-653 of this subchapter shall make a decla- 49 ration of its estimated tax for the current privilege period, containing 50 such information as the commissioner of finance may prescribe by regu- 51 lations or instructions, if such estimated tax can reasonably be 52 expected to exceed one thousand dollars. 53 2. The term "estimated tax" means the amount which a taxpayer esti- 54 mates to be the tax imposed by section 11-653 of this subchapter for the 55 current privilege period, less the amount which it estimates to be the 56 sum of any credits allowable against the tax.S. 8474 660 1 3. In the case of a taxpayer which reports on the basis of a calendar 2 year, a declaration of estimated tax shall be filed on or before June 3 fifteenth of the current privilege period, except that if the require- 4 ments of subdivision one of this section are first met: 5 (a) after May thirty-first and before September first of such current 6 privilege period, the declaration shall be filed on or before September 7 fifteenth; or 8 (b) after August thirty-first and before December first of such 9 current privilege period, the declaration shall be filed on or before 10 December fifteenth. 11 4. A taxpayer may amend a declaration under regulations of the commis- 12 sioner of finance. 13 5. If, on or before February fifteenth of the succeeding year in the 14 case of a taxpayer which reports on the basis of a calendar year, a 15 taxpayer files its report for the year for which the declaration is 16 required, and pays therewith the balance, if any, of the full amount of 17 the tax shown to be due on the report: 18 (a) such report shall be considered as its declaration if no declara- 19 tion is required to be filed during the calendar or fiscal year for 20 which the tax was imposed, but is otherwise required to be filed on or 21 before December fifteenth pursuant to subdivision three of this section; 22 and 23 (b) such report shall be considered as the amendment permitted by 24 subdivision four of this section to be filed on or before December 25 fifteenth if the tax shown on the report is greater than the estimated 26 tax shown on a declaration previously made. 27 6. This section shall apply to privilege periods of twelve months 28 other than a calendar year by the substitution of the months of such 29 fiscal year for the corresponding months specified in this section. 30 7. If the privilege period for which a tax is imposed by section 31 11-653 of this subchapter is less than twelve months, every taxpayer 32 required to make a declaration of estimated tax for such privilege peri- 33 od shall make such a declaration in accordance with regulations of the 34 commissioner of finance. 35 8. The commissioner of finance may grant a reasonable extension of 36 time, not to exceed three months, for the filing of any declaration 37 required pursuant to this section, on such terms and conditions as it 38 may require. 39 § 11-658 Payments on account of estimated tax. 1. For taxable years 40 beginning before January first, two thousand sixteen, every taxpayer 41 subject to the tax imposed by section 11-653 of this subchapter shall 42 pay with the report required to be filed for the preceding privilege 43 period, if any, or with an application for extension of the time and 44 filing such report, an amount equal to twenty-five per centum of the 45 preceding year's tax if such preceding year's tax exceeded one thousand 46 dollars. For taxable years beginning on or after January first, two 47 thousand sixteen, every taxpayer subject to the tax imposed by section 48 11-653 of this subchapter shall pay on or before the fifteenth day of 49 March next succeeding the close of each such calendar year, or, in the 50 case of a taxpayer that reports on the basis of a fiscal year, within 51 two and one-half months after the close of each such fiscal year an 52 amount equal to twenty-five per centum of the second preceding year's 53 tax if the second preceding year's tax exceeded one thousand dollars. 54 2. The estimated tax with respect to which a declaration for such 55 privilege period is required shall be paid, in the case of a taxpayer 56 which reports on the basis of a calendar year, as follows:S. 8474 661 1 (a) If the declaration is filed on or before June fifteenth, the esti- 2 mated tax shown thereon, after applying thereto the amount, if any, paid 3 during the same privilege period pursuant to subdivision one of this 4 section, shall be paid in three equal installments. One of such install- 5 ments shall be paid at the time of the filing of the declaration, one 6 shall be paid on the following September fifteenth, and one on the 7 following December fifteenth. 8 (b) If the declaration is filed after June fifteenth and not after 9 September fifteenth of such privilege period, and is not required to be 10 filed on or before June fifteenth of such period, the estimated tax 11 shown on such declaration, after applying thereto the amount, if any, 12 paid during the same privilege period pursuant to subdivision one of 13 this section, shall be paid in two equal installments. One of such 14 installments shall be paid at the time of the filing of the declaration 15 and one shall be paid on the following December fifteenth. 16 (c) If the declaration is filed after September fifteenth of such 17 privilege period, and is not required to be filed on or before September 18 fifteenth of such privilege period, the estimated tax shown on such 19 declaration, after applying thereto the amount, if any, paid in respect 20 to such privilege period pursuant to subdivision one of this section, 21 shall be paid in full at the time of the filing of the declaration. 22 (d) If the declaration is filed after the time prescribed therefor, or 23 after the expiration of any extension of time therefor, paragraphs (b) 24 and (c) of this subdivision shall not apply, and there shall be paid at 25 the time of such filing all installments of estimated tax payable at or 26 before such time, and the remaining installments shall be paid at the 27 times at which, and in the amounts in which, they would have been paya- 28 ble if the declaration had been filed when due. 29 3. If any amendment of a declaration is filed, the remaining install- 30 ments, if any, shall be ratably increased or decreased, as the case may 31 be, to reflect any increase or decrease in the estimated tax by reason 32 of such amendment, and if any amendment is made after September 33 fifteenth of the privilege period, any increase in the estimated tax by 34 reason thereof shall be paid at the time of making such amendment. 35 4. Any amount paid shall be applied after payment as a first install- 36 ment against the estimated tax of the taxpayer for the current privilege 37 period shown on the declaration required to be filed pursuant to section 38 11-657 of this subchapter or, if no declaration of estimated tax is 39 required to be filed by the taxpayer pursuant to such section, any such 40 amount shall be considered a payment on account of the tax shown on the 41 report required to be filed by the taxpayer for such privilege period. 42 5. Notwithstanding the provisions of section 11-679 of this chapter or 43 of section three-a of the general municipal law, if an amount paid 44 pursuant to subdivision one of this section exceeds the tax shown on the 45 report required to be filed by the taxpayer for the privilege period 46 during which the amount was paid, interest shall be allowed and paid on 47 the amount by which the amount so paid pursuant to such subdivision 48 exceeds such tax, at the overpayment rate set by the commissioner of 49 finance pursuant to section 11-687 of this chapter, or, if no rate is 50 set, at the rate of four percent per annum from the date of payment of 51 the amount so paid pursuant to such subdivision to the fifteenth day of 52 the third month following the close of the privilege period, provided, 53 however, that no interest shall be allowed or paid under this subdivi- 54 sion if the amount thereof is less than one dollar or if such interest 55 becomes payable solely because of a carryback of a net operating loss in 56 a subsequent privilege period.S. 8474 662 1 6. As used in this section, "the preceding year's tax" means the tax 2 imposed upon the taxpayer by section 11-653 of this subchapter for the 3 preceding calendar or fiscal year, or, for purposes of computing the 4 first installment of estimated tax when either the mandatory first 5 installment is paid pursuant to subdivision one of this section or an 6 application has been filed for extension of the time for filing the 7 report required to be filed for such preceding calendar or fiscal year, 8 the amount properly estimated pursuant to section 11-657 of this 9 subchapter as the tax imposed upon the taxpayer for such calendar or 10 fiscal year. As used in this section, "the second preceding year's tax" 11 means the tax imposed upon the taxpayer by section 11-653 of this 12 subchapter for the second preceding calendar of fiscal year. 13 7. This section shall apply to a privilege period of less than twelve 14 months in accordance with regulations of the commissioner of finance. 15 8. The provisions of this section shall apply to privilege periods of 16 twelve months other than a calendar year by the substitution of the 17 months of such fiscal year for the corresponding months specified in 18 such provisions. 19 9. The commissioner of finance may grant a reasonable extension of 20 time, not to exceed six months, for payment of any installment of esti- 21 mated tax required pursuant to this section, on such terms and condi- 22 tions as the commissioner of finance may require including the furnish- 23 ing of a bond or other security by the taxpayer in an amount not 24 exceeding twice the amount for which any extension of time for payment 25 is granted, provided, however, that interest at the underpayment rate 26 set by the commissioner of finance pursuant to section 11-687 of this 27 subchapter, or, if no rate is set, at the rate of seven and one-half 28 percent per annum for the period of the extension shall be charged and 29 collected on the amount for which any extension of time for payment is 30 granted under this subdivision. 31 10. A taxpayer may elect to pay any installment of estimated tax prior 32 to the date prescribed in this section for payment thereof. 33 11. Intentionally omitted. 34 § 11-659 Collection of taxes. Every foreign corporation, other than a 35 moneyed corporation, subject to the provisions of this subchapter, 36 except a corporation having authority to do business by virtue of 37 section thirteen hundred five of the business corporation law, shall 38 file in the department of state a certificate of designation in its 39 corporate name, signed and acknowledged by its president or a vice-pre- 40 sident or its secretary or treasurer, under its corporate seal, desig- 41 nating the secretary of state as its agent upon whom process in any 42 action provided for by this subchapter may be served within this state, 43 and setting forth an address to which the secretary of state shall mail 44 a copy of any such process against the corporation which may be served 45 upon the secretary of state. In case any such corporation shall have 46 failed to file such certificate of designation, it shall be deemed to 47 have designated the secretary of state as its agent upon whom such proc- 48 ess against it may be served; and until a certificate of designation 49 shall have been filed the corporation shall be deemed to have directed 50 the secretary of state to mail copies of process served upon him or her 51 to the corporation at its last known office address within or without 52 the state. When a certificate of designation has been filed by such 53 corporation the secretary of state shall mail copies of process there- 54 after served upon the secretary of state to the address set forth in 55 such certificate. Any such corporation, from time to time, may change 56 the address to which the secretary of state is directed to mail copiesS. 8474 663 1 of process, by filing a certificate to that effect executed, signed and 2 acknowledged in like manner as a certificate of designation as herein 3 provided. Service of process upon any such corporation or upon any 4 corporation having a certificate of authority under section eight 5 hundred five of the limited liability company law or having authority to 6 do business by virtue of section thirteen hundred five of the business 7 corporation law, in any action commenced at any time pursuant to the 8 provisions of this subchapter, may be made by either: (a) personally 9 delivering to and leaving with the secretary of state, a deputy secre- 10 tary of state or with any person authorized by the secretary of state to 11 receive such service duplicate copies thereof at the office of the 12 department of state in the city of Albany, in which event the secretary 13 of state shall forthwith send by registered mail, return receipt 14 requested, one of such copies to the corporation at the address desig- 15 nated by it or at its last known office address within or without the 16 state, or (b) personally delivering to and leaving with the secretary of 17 state, a deputy secretary of state or with any person authorized by the 18 secretary of state to receive such service, a copy thereof at the office 19 of the department of state in the city of Albany and by delivering a 20 copy thereof to, and leaving such copy with, the president, vice-presi- 21 dent, secretary, assistant secretary, treasurer, assistant treasurer, or 22 cashier of such corporation, or the officer performing corresponding 23 functions under another name, or a director or managing agent of such 24 corporation, personally without the state. Proof of such personal 25 service without the state shall be filed with the clerk of the court in 26 which the action is pending within thirty days after such service, and 27 such service shall be complete ten days after proof thereof is filed. 28 § 11-660 Limitations of time. The provisions of the civil practice law 29 and rules relative to the limitation of time enforcing a civil remedy 30 shall not apply to any proceeding or action taken to levy, appraise, 31 assess, determine or enforce the collection of any tax or penalty 32 prescribed by this subchapter, provided, however, that as to real estate 33 in the hands of persons who are owners thereof who would be purchasers 34 in good faith but for such tax or penalty and as to the lien on real 35 estate of mortgages held by persons who would be holders thereof in good 36 faith but for such tax or penalty, all such taxes and penalties shall 37 cease to be a lien on such real estate as against such purchasers or 38 holders after the expiration of ten years from the date such taxes 39 became due and payable. The limitations herein provided for shall not 40 apply to any transfer from a corporation to a person or corporation with 41 intent to avoid payment of any taxes, or where with like intent the 42 transfer is made to a grantee corporation, or any subsequent grantee 43 corporation, controlled by such grantor or which has any community of 44 interest with it, either through stock ownership or otherwise. 45 SUBCHAPTER 4 46 TRANSPORTATION CORPORATION TAX 47 § 11-662 Tax on transportation corporations and associations. 1. 48 The term "corporation" as used in this subchapter shall include any 49 business conducted by a trustee or trustees wherein interest or owner- 50 ship is evidenced by certificates or other written instruments. 51 2. For the privilege of doing business or holding property in the 52 city every corporation, joint-stock company or association formed for or 53 principally engaged in the conduct of aviation, steamboat, ferry, except 54 a ferry company operating between the city of Staten Island and any ofS. 8474 664 1 the boroughs of the city of New York under a lease granted by the city 2 of New York, or navigation business, or formed for or principally 3 engaged in the conduct of two or more of such businesses, except a 4 corporation, joint-stock company or association subject to taxation 5 under chapter eleven of this title, shall pay, in advance, an annual tax 6 to be computed upon the basis of the amount of its capital stock within 7 the city during the preceding year, and upon each dollar of such amount. 8 3. The measure of the amount of capital stock in the city, except as 9 hereinafter provided, shall be such a portion of the issued capital 10 stock as the gross assets, exclusive of obligations issued by the United 11 States and cash on hand and on deposit, employed in any business within 12 the city, bear to the gross assets, exclusive of obligations issued by 13 the United States and cash on hand and on deposit, wherever employed in 14 business. Provided, however, that in the case of a corporation taxable 15 hereunder only for the privilege of holding property, the measure shall 16 be such a portion of the issued capital stock as the gross assets, 17 exclusive of obligations issued by the United States and cash on hand 18 and on deposit, located within the city, bear to the gross assets, 19 exclusive of obligations issued by the United States and cash on hand 20 and on deposit, wherever located. The capital of a corporation invested 21 in the stock of another corporation shall be deemed to be assets located 22 where the assets of the issuing corporation, other than patents, copy- 23 rights, trademarks, contracts and good will, are located. 24 4. Every corporation, joint-stock company or association subject to 25 taxation under this section shall, in any event, pay annually, for taxa- 26 ble years ending on or before December thirty-first, nineteen hundred 27 seventy-four, a minimum tax of not less than ten dollars nor less than 28 one mill, and for taxable years beginning on or after January first, 29 nineteen hundred seventy-five, a minimum tax of not less than fifteen 30 dollars nor less than one and one-half mills, on each dollar of such a 31 portion of the net value of its issued capital stock, which net value 32 for the purposes of this section shall be deemed to be not less than 33 five dollars per share, as may be determined upon such of the bases 34 herein provided for the measurement thereof as is applicable. The term 35 "net value" as used in this section shall be construed to mean not less 36 than the difference between a corporation's assets and liabilities, and 37 not less than the average price at which such stock sold during the year 38 covered by the report which forms the basis for the tax. But if the 39 dividends paid on the par value of any kind of capital stock during any 40 year ending with the thirty-first day of December amounts to six or more 41 than six per centum, the tax upon such kind of capital stock shall be at 42 the rate of one-quarter of a mill for taxable years ending on or before 43 December thirty-first, nineteen hundred seventy-four, and at the rate of 44 four-tenths of a mill for taxable years beginning on or after January 45 first, nineteen hundred seventy-five for each one per centum of divi- 46 dends paid and shall be computed upon the par value of such capital 47 stock, unless such a tax be less than the minimum tax hereinbefore 48 provided in this section and the commissioner of finance shall, for such 49 purpose, make a fair and equitable apportionment of the assets of the 50 corporation, joint-stock company or association, between or among the 51 different kinds of stock. 52 5. If such corporation, joint-stock company or association shall have 53 more than one kind of capital stock, and upon one of such kinds of stock 54 a dividend or dividends amounting to six or more than six per centum 55 upon the par value thereof, has been paid, and upon the other no divi- 56 dend has been paid, or the dividend or dividends paid thereon amount toS. 8474 665 1 less than six per centum upon the par value thereof, then the tax shall 2 be fixed upon each kind as hereinbefore provided. 3 6. The dividend rate for a corporation having stock without nominal or 4 par value shall be determined by dividing the amount paid as a dividend 5 or dividends during the year by the amount paid in on such stock and, if 6 the rate is six per centum or more, then for taxable years ending on or 7 before December thirty-first, nineteen hundred seventy-four, the rate of 8 one-quarter of a mill for each one per centum of dividends shall be 9 applied to the amount paid in on such stock, and for taxable years 10 beginning on or after January first, nineteen hundred seventy-five, the 11 rate of four-tenths of a mill for each one per centum of dividends shall 12 be applied to the amount paid in on such stock, unless such tax be less 13 than the minimum tax hereinbefore in this section provided for. Any 14 consideration given by a corporation for the purchase of its own stock 15 in excess of the consideration received by it for the issuance of such 16 stock shall for the purposes of this section, be considered as a divi- 17 dend. 18 7. The owning or holding in the city by any corporation of property, 19 other than property exclusively in interstate or foreign commerce, shall 20 constitute carrying on business within the city within the intent of 21 this section, except that a corporation having no property in the city 22 other than a bank balance or stocks or bonds, or one or more of such 23 kinds of property, either held for safe keeping or pledged as collateral 24 security shall not be taxable under this section, and further provided 25 that any corporation having only office furniture or fixtures, a bank 26 balance, and stocks or bonds pledged as collateral security or merely 27 deposited for safe keeping, shall not be taxable under this section. 28 8. The measure of the amount of capital stock in the city of an 29 aviation corporation shall be a portion of the issued capital stock 30 determined by applying thereto the arithmetical average of the following 31 three ratios: (a) the ratio which the aircraft arrivals and departures 32 within the city scheduled by any such corporation during the preceding 33 calendar year bear to the total aircraft arrivals and departures within 34 and without the city scheduled by it during the same period, provided 35 that in the case of non-scheduled operations all arrivals and departures 36 shall be substituted for scheduled arrivals and departures; (b) the 37 ratio which the revenue tons handled by such corporation at airports 38 within the city during the preceding calendar year bear to the total 39 revenue tons handled by it at airports within and without the city 40 during the same period; and (c) the ratio which such corporation's orig- 41 inating revenue within the city for the preceding calendar years bears 42 to its total originating revenue within and without the city for the 43 same period. As used in this section, the term "aircraft arrivals and 44 departures" means the number of scheduled landings and takeoffs of the 45 aircraft of an aviation corporation, and the number of scheduled air 46 pickups and deliveries by the aircraft of such corporation, and in the 47 case of non-scheduled operations shall include all landings and 48 takeoffs, pickups and deliveries; the term "originating revenue" means 49 revenue to any such corporation from the transportation of revenue 50 passengers and revenue property first received by such corporation 51 either as originating or connecting traffic at airports; and the term 52 "revenue tons handled" by any such corporation at an airport means the 53 weight in tons of revenue passengers, at two hundred pounds per passen- 54 ger, and revenue cargo first received either as originating or connect- 55 ing traffic or finally discharged by such corporation at such airport.S. 8474 666 1 9. The measure of the capital stock in the city of a corporation 2 engaged in the operation of vessels in foreign commerce shall be such 3 portion of the issued capital stock as the aggregate number of working 4 days in territorial waters of the city of all such vessels bears to the 5 aggregate number of working days of all such vessels. The dividend rate 6 for such a corporation shall be determined by dividing the amount paid 7 as a dividend or dividends on all classes of stock during the year by 8 the amount of paid-in capital and, if the rate is six per centum or 9 more, then for taxable years ending on or before December thirty-first, 10 nineteen hundred seventy-four, the rate of one-quarter of a mill for 11 each one per centum of dividends shall be applied to the amount of such 12 paid-in capital, and for taxable years beginning on or after January 13 first, nineteen hundred seventy-five, the rate of four-tenths of a mill 14 for each one per centum of dividends shall be applied to the amount of 15 such paid-in capital. 16 § 11-663 Additional tax on transportation corporations and associ- 17 ations. Every corporation, joint-stock company or association formed 18 for or principally engaged in the conduct of aviation, steamboat, ferry, 19 except a ferry company operating between the city of Staten Island and 20 any of the boroughs of the city of New York under a lease granted by the 21 city of New York, or navigation business or formed for or principally 22 engaged in the conduct of two or more of such businesses, except a 23 corporation, joint-stock company or association subject to taxation 24 under chapter eleven of this title, shall pay for the privilege of 25 carrying on its business in the city, a tax which shall be equal to 26 five-tenths of one per centum for taxable years ending on or before 27 December thirty-first, nineteen hundred seventy-four, and seventy-five 28 hundredths of one per centum for taxable years beginning on or after 29 January first, nineteen hundred seventy-five upon its gross earnings 30 from all sources within the city, excluding earnings derived from busi- 31 ness of a character other than wholly intra-city. Provided, however, 32 gross earnings from transportation business both originating and termi- 33 nating within the city and traversing both the city and any other city, 34 any state or states or any country shall be subject to the tax imposed 35 by this section and such earnings shall be allocated to the city in the 36 same ratio that the mileage within the city bears to the total mileage 37 of such business. 38 § 11-664 Receivers, etc., conducting corporate business. Any receiv- 39 er, liquidator, referee, trustee, assignee, or other fiduciary or offi- 40 cer or agent appointed by any court, who conducts the business of any 41 corporation, joint-stock company or association shall be subject to the 42 tax or taxes imposed by this subchapter in the same manner and to the 43 same extent as if the business were conducted by the agents or officers 44 of such corporation, joint-stock company or association. A dissolved 45 corporation, joint-stock company or association which continues to 46 conduct business shall also be subjected to the tax imposed by this 47 subchapter. 48 § 11-665 Service of process; limitation of time. 1. Every foreign 49 corporation, other than a moneyed corporation, subject to the provisions 50 of this subchapter, except a corporation having authority to do business 51 by virtue of section thirteen hundred five of the business corporation 52 law, shall file in the department of state a certificate of designation 53 in its corporate name, signed and acknowledged by its president or vice- 54 president or its secretary or treasurer, under its corporate seal, 55 designating the secretary of state as its agent upon whom process in any 56 action provided for by this subchapter or subchapter five of this chap-S. 8474 667 1 ter may be served within this state, and setting forth an address to 2 which the secretary of state shall mail a copy of any such process 3 against the corporation which may be served upon the secretary of state. 4 In case any such corporation shall have failed to file such certificate 5 of designation, it shall be deemed to have designated the secretary of 6 state as its agent upon whom such process against it may be served; and 7 until a certificate of designation shall have been filed the corporation 8 shall be deemed to have directed the secretary of state to mail copies 9 of process served upon the secretary of state to the corporation at its 10 last known office address within or without the state. When a certif- 11 icate of designation has been filed by such corporation the secretary of 12 state shall mail copies of process thereafter served upon the secretary 13 of state to the address set forth in such certificate. Any such corpo- 14 ration, from time to time, may change the address to which the secretary 15 of state is directed to mail copies of process, by filing a certificate 16 to that effect executed, signed and acknowledged in like manner as a 17 certificate of designation as herein provided. Service of process upon 18 any such corporation or upon any corporation having authority to do 19 business by virtue of section thirteen hundred five of the business 20 corporation law, in any action commenced at any time pursuant to the 21 provisions of this subchapter or subchapter five of this chapter may be 22 made by either: (1) personally delivering to and leaving with the secre- 23 tary of state, a deputy secretary of state or with any person authorized 24 by the secretary of state to receive such service duplicate copies ther- 25 eof at the office of the department of state in the city of Albany, in 26 which event the secretary of state shall forthwith send by registered 27 mail, return receipt requested, one of such copies to the corporation at 28 the address designated by it or at its last known office address within 29 or without the state, or (2) personally delivering to and leaving with 30 the secretary of state, a deputy secretary of state or with any person 31 authorized by the secretary of state to receive such service, a copy 32 thereof at the office of the department of state in the city of Albany 33 and by delivering a copy hereof to, and leaving such copy with, the 34 president, vice-president, secretary, assistant secretary, treasurer, 35 assistant treasurer, or cashier of such corporation, or the officer 36 performing corresponding functions under another name, or a director or 37 managing agent of such corporation, personally without the state. Proof 38 of such personal service without the state shall be filed with the clerk 39 of the court in which the action is pending within thirty days after 40 such service, and such service shall be complete ten days after proof 41 thereof is filed. 42 2. The provisions of the civil practice law and rules relative to the 43 limitation of time of enforcing a civil remedy shall not apply to any 44 proceeding or action taken to levy, appraise, assess, determine or 45 enforce the collection of any tax or penalty prescribed by this subchap- 46 ter or subchapter five of this chapter, provided, however, that as to 47 real estate in the hands of persons who are owners thereof who would be 48 purchasers in good faith but for such tax or penalty and as to the lien 49 on real estate of mortgages held by persons who would be holders thereof 50 in good faith but for such tax or penalty, all such taxes and penalties 51 shall cease to be a lien on such real estate as against such purchasers 52 or holders after the expiration of ten years from the date such taxes 53 become due and payable. The limitations provided for in this subdivi- 54 sion shall not apply to any transfer from a corporation to a person or 55 corporation with intent to avoid payment of any taxes, or where with 56 like intent the transfer is made to a grantee corporation, or any subse-S. 8474 668 1 quent grantee corporation controlled by such grantor or which has any 2 community of interest with it, either through stock ownership or other- 3 wise. 4 § 11-666 Exemption of corporations owned by a municipality. The 5 provisions of this subchapter shall not apply to any corporation all of 6 the capital stock of which is owned by a municipal corporation of this 7 state. 8 § 11-667 Reports of corporations. Corporations liable to pay a tax 9 under this subchapter shall report as follows: 10 1. Every corporation, association or joint-stock company liable to pay 11 a tax under section 11-662 of this subchapter shall, on or before March 12 first in each year, make a written report to the commissioner of finance 13 of its condition at the close of its business on the preceding December 14 thirty-first, stating the amount of its authorized capital stock, the 15 amount of stock paid-in, the date and rate per centum of each dividend 16 paid by it during the year ending with such day, the entire amount of 17 the capital of such corporation, and the capital employed by it in the 18 city during such year. 19 2. Every corporation, joint-stock company or association liable to pay 20 an additional tax under section 11-663 of this subchapter shall also, on 21 or before February fifteenth, May fifteenth, August fifteenth and Novem- 22 ber fifteenth in each year, make a written report to the commissioner of 23 finance of the amount of its gross earnings subject to the tax imposed 24 by said section for the quarter year ended on the last day of the second 25 month preceding that in which the report is required to be filed. Any 26 such corporation, joint-stock company or association which ceases to be 27 subject to the tax imposed by section 11-663 of this subchapter by 28 reason of a liquidation, dissolution, merger or consolidation with any 29 other corporation, or any other cause, shall, on the date of such cessa- 30 tion or at such other time as the commissioner of finance may require, 31 make a written report to the commissioner of finance of the amount of 32 its gross earnings subject to the tax imposed by section 11-663 of this 33 subchapter for any period for which no report was therefor filed. 34 3. The commissioner of finance may for good cause shown extend the 35 time within which any corporation is required to report by this subchap- 36 ter. 37 4. Every report required by this subchapter shall have annexed thereto 38 a certification by the president, vice-president, treasurer, assistant 39 treasurer, or chief accounting officer or any other officer of the 40 corporation, association or joint-stock company duly authorized so to 41 act, or of the person or one of the persons, or the members of the part- 42 nership making the same, to the effect that the statements contained 43 therein are true. The fact that an individual's name is signed on a 44 certification attached to a corporate report shall be prima facie 45 evidence that such individual is authorized to certify the report on 46 behalf of the corporation. Such reports shall contain any other data, 47 information or matter which the commissioner of finance may require to 48 be included therein, and it may prescribe the form in which such reports 49 shall be made. When so prescribed such forms shall be used in making 50 the report. The commissioner of finance may require at any time a 51 further or supplemental report under this subchapter which shall contain 52 information and data upon such matters as the commissioner of finance 53 may specify. Reports shall be preserved for five years, and thereafter 54 until the commissioner of finance orders them to be destroyed. 55 § 11-668 Payment of tax and penalties. 1. The taxes imposed by 56 sections 11-662 and 11-663 of this subchapter shall be due and payableS. 8474 669 1 at the time of the filing of the report required by section 11-667 of 2 this subchapter or, in case such a report is not filed when due, on the 3 last day specified for the filing thereof, except that the tax upon 4 dividends imposed by section 11-663 of this subchapter shall be due and 5 payable at the time of filing the report for the period ending June 6 thirtieth, or, in case such report is not filed when due, on the last 7 day specified for the filing thereof. 8 2. Where an application for consent to dissolution, as provided by 9 section one thousand four of the business corporation law, is filed with 10 the commissioner of finance prior to the commencement of any tax year or 11 period by a corporation subject to tax under this subchapter, such 12 corporation shall not be liable for any tax imposed by this subchapter 13 for such following year or period, except as may be otherwise provided 14 in section 11-664 of this subchapter, provided that the certificate of 15 dissolution for such corporation is duly filed in the office of the 16 secretary of state within twenty days after the filing of such applica- 17 tion. 18 3. Notwithstanding any other provision of this subchapter, the commis- 19 sioner of finance may grant a reasonable extension of time for payment 20 of any tax imposed by this subchapter under such conditions as the 21 commissioner deems just and proper. 22 § 11-669 Taxable years to which taxes apply. The taxes imposed by 23 this subchapter are imposed for each taxable year or period beginning 24 with taxable years or periods ending in or with the calendar year nine- 25 teen hundred sixty-six, provided, however, no tax shall be imposed 26 pursuant to this subchapter for any taxable year or period ending after 27 December thirty-first, nineteen hundred eighty-eight. 28 § 11-670 First reports for payments for nineteen hundred sixty-six. 29 If any report under this subchapter is due prior to September eleventh, 30 nineteen hundred sixty-six, such report and the payments therewith shall 31 be filed and paid by such date. 32 SUBCHAPTER 5 33 CORPORATE TAX PROCEDURE AND ADMINISTRATION 34 § 11-671 Application of subchapter. 1. General. The provisions of 35 this subchapter shall apply to the administration of and the procedures 36 with respect to the taxes imposed by subchapters two, three, three-A and 37 four of this chapter. 38 2. Definitions. As used in this subchapter: (a) the term "named 39 subchapters" means subchapters two, three, three-A and four of this 40 chapter; 41 (b) The term "return" means a report or return of tax, but does not 42 include a declaration of estimated tax; 43 (c) The term "corporation" includes a corporation, association, joint- 44 stock company or other entity subject to tax under any of the named 45 subchapters; and 46 (d) The term "person" includes a corporation, association, company, 47 partnership, estate, trust, liquidator, fiduciary or other entity or 48 individual liable for the tax imposed by any of the named subchapters or 49 under a duty to perform an act under any of the named subchapters. Upon 50 notice to the commissioner of finance that any person is acting for any 51 corporation in a fiduciary capacity, such fiduciary shall assume the 52 powers, rights, duties and privileges of such corporation in respect of 53 a tax imposed by any of the named subchapters, except as otherwise 54 specifically provided and except that the tax shall be collected fromS. 8474 670 1 the estate or other assets of such corporation in the hands of such 2 fiduciary, until notice is given that the fiduciary capacity has termi- 3 nated. 4 § 11-672 Notice of deficiency. 1. General. If upon examination of a 5 taxpayer's return, the commissioner of finance determines that there is 6 a deficiency of tax, the commissioner may mail a notice of deficiency to 7 the taxpayer. If a taxpayer fails to file a tax return, the commissioner 8 of finance is authorized to estimate the taxpayer's city tax liability 9 from any information in the commissioner's possession, and to mail a 10 notice of deficiency to the taxpayer. A notice of deficiency shall be 11 mailed by certified or registered mail to the taxpayer, at its last 12 known address in or out of the city. If the taxpayer has terminated its 13 existence, a notice of deficiency may be mailed to its last known 14 address in or out of the city, and such notice shall be sufficient for 15 purposes of this subchapter. If the commissioner of finance has received 16 notice that a person is acting for the taxpayer in a fiduciary capacity, 17 a copy of such notice shall also be mailed to the fiduciary named in 18 such notice. 19 2. Notice of deficiency as assessment. After ninety days from the 20 mailing of a notice of deficiency or, if the commissioner of finance has 21 established a conciliation procedure pursuant to section 11-124 of this 22 title and the taxpayer has requested a conciliation conference in 23 accordance therewith, after ninety days from the mailing of the concil- 24 iation decision or the date of the commissioner's confirmation of the 25 discontinuance of the conciliation proceeding, such notice shall be an 26 assessment of the amount of tax specified therein, together with the 27 interest, additions to tax and penalties stated in such notice, except 28 only for any such tax or other amounts as to which the taxpayer has 29 within such ninety day period filed with the tax appeals tribunal a 30 petition under section 11-680 of this subchapter. If the notice of defi- 31 ciency or conciliation decision is addressed to a taxpayer whose last 32 known address is outside of the United States, such period shall be one 33 hundred fifty days instead of ninety days. 34 3. Restrictions on assessment and levy. No assessment of a deficiency 35 in tax and no levy or proceeding in court for its collection shall be 36 made, begun or prosecuted, except as otherwise provided in section 37 11-685 of this subchapter, until a notice of deficiency has been mailed 38 to the taxpayer, nor until the expiration of the time for filing a peti- 39 tion with the tax appeals tribunal contesting such notice, nor, if a 40 petition with respect to the taxable year has been both served on the 41 commissioner of finance and filed with the tax appeals tribunal, until 42 the decision of the tax appeals tribunal has become final. For excep- 43 tion in the case of judicial review of the decision of the tax appeals 44 tribunal, see subdivision three of section 11-681 of this subchapter. 45 4. Exceptions for mathematical errors. If a mathematical error appears 46 on a return, including an overstatement of the amount paid as estimated 47 tax, the commissioner of finance shall notify the taxpayer that an 48 amount of tax in excess of that shown upon the return is due, and that 49 such excess has been assessed. Such notice shall not be considered as a 50 notice of deficiency for the purposes of this section, subdivision six 51 of section 11-678, limiting credits or refunds after petition to the tax 52 appeals tribunal, or subdivision two of section 11-680 of this subchap- 53 ter, authorizing the filing of a petition with the tax appeals tribunal 54 based on a notice of deficiency, nor shall such assessment or collection 55 be prohibited by the provisions of subdivision three of this section.S. 8474 671 1 5. Exception where federal or New York state change or correction is 2 not reported. 3 (a) If the taxpayer fails to comply with subchapter two, three or 4 three-A of this chapter in not reporting a change or correction or rene- 5 gotiation, or computation or recomputation of tax, increasing or 6 decreasing its federal or New York state taxable income, alternative 7 minimum taxable income or other basis of tax as reported on its federal 8 or New York state income tax return or in not reporting a change or 9 correction or renegotiation, or computation or recomputation of tax, 10 which is treated in the same manner as if it were a deficiency for 11 federal or New York state income tax purposes or in not filing an 12 amended return or in not reporting the execution of a notice of waiver 13 executed pursuant to subsection (d) of section six thousand two hundred 14 thirteen of the internal revenue code or pursuant to subdivision (f) of 15 section one thousand eighty-one of the tax law, instead of the mode and 16 time of assessment provided for in subdivision two of this section, the 17 commissioner of finance may assess a deficiency based upon such 18 increased or decreased federal or New York state taxable income, alter- 19 native minimum taxable income or other basis of tax by mailing to the 20 taxpayer a notice of additional tax due specifying the amount of the 21 deficiency, and such deficiency, together with the interest, additions 22 to tax and penalties stated in such notice, shall be deemed assessed on 23 the date such notice is mailed unless within thirty days after the mail- 24 ing of such notice a report of the federal or New York state change or 25 correction or renegotiation, or computation or recomputation of tax, or 26 an amended return, where such return was required by subchapter two or 27 three of this chapter, is filed accompanied by a statement showing wher- 28 ein such federal or New York state determination and such notice of 29 additional tax due are erroneous. 30 (b) Such notice shall not be considered as a notice of deficiency for 31 the purposes of this section, subdivision six of section 11-678, limit- 32 ing credits or refunds after petition to the tax appeals tribunal, or 33 subdivision two of section 11-680 of this subchapter, authorizing the 34 filing of a petition with the tax appeals tribunal based on a notice of 35 deficiency, nor shall such assessment or the collection thereof be 36 prohibited by the provisions of subdivision three of this section. 37 (c) If the taxpayer has terminated its existence, a notice of addi- 38 tional tax due may be mailed to the taxpayer's last known address in or 39 out of the city, and such notice shall be sufficient for purposes of 40 this subchapter. If the commissioner of finance has received notice that 41 a person is acting for the taxpayer in a fiduciary capacity, a copy of 42 such notice shall also be mailed to the fiduciary named in such notice. 43 6. Waiver of restrictions. The taxpayer shall at any time, whether or 44 not a notice of deficiency has been issued, have the right to waive the 45 restrictions on assessment and collection of the whole or any part of 46 the deficiency by a signed notice in writing filed with the commissioner 47 of finance. 48 7. Two or more corporations. In case of a combined return under 49 subchapter two or three-A or a consolidated return under subchapter 50 three of two or more corporations, the commissioner of finance may 51 determine a deficiency of tax under subchapter two, three or three-A of 52 this chapter with respect to the entire tax due upon such return against 53 any taxpayer included therein. In the case of a taxpayer which might 54 have been included in such a return under subchapter two, three or 55 three-A of this chapter when the tax was originally reported, the 56 commissioner of finance may determine a deficiency of tax under subchap-S. 8474 672 1 ter two, three or three-A of this chapter against such taxpayer and 2 against any other taxpayers which might have been included in such a 3 return. 4 8. Deficiency defined. For the purposes of this subchapter, a defi- 5 ciency means the amount of the tax imposed by the named subchapters, or 6 any of them, less: (a) the amount shown as the tax upon the taxpayer's 7 return, whether the return was made or the tax computed by it or by the 8 commissioner of finance, and less (b) the amounts previously assessed, 9 or collected without assessment, as a deficiency and plus (c) the amount 10 of any rebates. For the purpose or this definition, the tax imposed by 11 subchapter two, three or three-A of this chapter and the tax shown on 12 the return shall both be determined without regard to any payment of 13 estimated tax; and a rebate means so much of an abatement, credit, 14 refund or other repayment, whether or not erroneous, as was made on the 15 ground that the amounts entering into the definition of a deficiency 16 showed a balance in favor of the taxpayer. 17 9. Exception where change or correction of sales and compensating use 18 tax liability is not reported. 19 (a) If a taxpayer fails to comply with subchapter two or three-A of 20 this chapter in not reporting a change or correction of its sales and 21 compensating use tax liability or in not filing a copy of an amended 22 return or report relating to its sales and compensating use tax liabil- 23 ity, instead of the mode and time of assessment provided for in subdivi- 24 sion two of this section, the commissioner of finance may assess a defi- 25 ciency based upon such changed or corrected sales and compensating use 26 tax liability, as same relates to credits claimed under subchapter two 27 or three-A of this chapter, by mailing to the taxpayer a notice of addi- 28 tional tax due specifying the amount of the deficiency, and such defi- 29 ciency, together with the interest, additions to tax and penalties stat- 30 ed in such notice, shall be deemed assessed on the date such notice is 31 mailed unless within thirty days after the mailing of such notice a 32 report of the state change or correction or a copy of an amended return 33 or report, where such copy was required by subchapter two or three-A, is 34 filed accompanied by a statement showing wherein such state determi- 35 nation and such notice of additional tax due are erroneous. 36 (b) Such notice shall not be considered as a notice of deficiency for 37 the purposes of this section, subdivision six of section 11-678, limit- 38 ing credits or refunds after petition to the tax appeals tribunal, or 39 subdivision two of section 11-680, authorizing the filing of a petition 40 with the tax appeals tribunal based on a notice of deficiency, nor shall 41 such assessment or the collection thereof be prohibited by the 42 provisions of subdivision three of this section. 43 (c) If the taxpayer has terminated its existence, a notice of addi- 44 tional tax due may be mailed to its last known address in or out of the 45 city, and such notice shall be sufficient for purposes of this subchap- 46 ter. If the commissioner of finance has received notice that a person is 47 acting for the taxpayer in a fiduciary capacity, a copy of such notice 48 shall also be mailed to the fiduciary named in such notice. 49 § 11-673 Assessment. 1. Assessment date. The amount of tax which a 50 return shows to be due, or the amount of tax which a return would have 51 shown to be due but for a mathematical error, shall be deemed to be 52 assessed on the date of filing of the return, including any amended 53 return showing an increase of tax. If a notice of deficiency has been 54 mailed, the amount of the deficiency shall be deemed to be assessed on 55 the date specified in subdivision two of section 11-672 of this subchap- 56 ter if no petition is both served on the commissioner of finance andS. 8474 673 1 filed with the tax appeals tribunal, or if a petition is so served and 2 filed, then upon the date when a decision of the tax appeals tribunal 3 establishing the amount of the deficiency becomes final. If a report or 4 an amended return filed pursuant to subchapter two, three or three-A of 5 this chapter concedes the accuracy of a federal or New York state 6 adjustment or change or correction or renegotiation or computation or 7 recomputation of tax, any deficiency in tax under subchapter two, three 8 or three-A of this chapter resulting therefrom shall be deemed to be 9 assessed on the date of filing such report or amended return, and such 10 assessment shall be timely notwithstanding section 11-674 of this 11 subchapter. 12 If a report filed pursuant to subchapter two of this chapter concedes 13 the accuracy of a state change or correction of sales and compensating 14 use tax liability, any deficiency in tax under subchapter two or three-A 15 of this chapter resulting therefrom shall be deemed assessed on the date 16 of filing such report, and such assessment shall be timely notwithstand- 17 ing section 11-674 of this subchapter. 18 If a notice of additional tax due, as prescribed in subdivision five 19 of section 11-672 of this subchapter, has been mailed, the amount of the 20 deficiency shall be deemed to be assessed on the date specified in such 21 subdivision unless within thirty days after the mailing of such notice a 22 report of the federal or New York state adjustment or change or 23 correction or renegotiation or computation or recomputation of tax, or 24 an amended return, where such return was required by subchapter two, 25 three or three-A of this chapter, is filed accompanied by a statement 26 showing wherein such federal or New York state determination and such 27 notice of additional tax due are erroneous. 28 If a notice of additional tax due, as prescribed in subdivision nine 29 of section 11-672 of this subchapter, has been mailed, the amount of the 30 deficiency shall be deemed to be assessed on the date specified in such 31 subdivision unless within thirty days after the mailing of such notice a 32 report of the state change or correction, or a copy of an amended return 33 or report, where such copy was required by subchapter two or three-A of 34 this chapter, is filed accompanied by a statement showing wherein such 35 state determination and such notice of additional tax due are erroneous. 36 Any amount paid as a tax or in respect of a tax, other than amounts 37 paid as estimated tax, shall be deemed to be assessed upon the date of 38 receipt of payment notwithstanding any other provisions. 39 2. Other assessment powers. If the mode or time for the assessment of 40 any tax under the named subchapters, including interest, additions to 41 tax and assessable penalties, is not otherwise provided for, the commis- 42 sioner of finance may establish the same by regulations. 43 3. Estimated tax. No unpaid amount of estimated tax under subchapter 44 two, three or three-A of this chapter shall be assessed. 45 4. Supplemental assessment. The commissioner of finance may, at any 46 time within the period described for assessment, make a supplemental 47 assessment, subject to the provisions of section 11-672 of this subchap- 48 ter where applicable, whenever it is ascertained that any assessment is 49 imperfect or incomplete in any material respect. 50 5. Cross reference. For assessment in case of jeopardy, see section 51 11-685 of this subchapter. 52 § 11-674 Limitations on assessment. 1. General. Except as otherwise 53 provided in this section, any tax under the named subchapters shall be 54 assessed within three years after the return was filed, whether or not 55 such return was filed on or after the date prescribed.S. 8474 674 1 2. Time return deemed filed. For the purposes of this section, a 2 return of tax filed before the last day prescribed by law or by regu- 3 lations promulgated pursuant to law for the filing thereof shall be 4 deemed to be filed on such last day. 5 3. Exceptions. 6 (a) Assessment at any time. The tax may be assessed at any time if: 7 (1) no return is filed, 8 (2) a false or fraudulent return is filed with intent to evade tax, 9 (3) in the case of the tax imposed under subchapter two, three or 10 three-A of this chapter, the taxpayer fails to file a report or amended 11 return required thereunder, in respect of an increase or decrease in 12 federal or New York state taxable income, alternative minimum taxable 13 income or other basis of tax or federal or New York state tax, or in 14 respect of a change or correction or renegotiation or in respect of the 15 execution of a notice of waiver report of which is required thereunder, 16 or computation or recomputation of tax, which is treated in the same 17 manner as if it were a deficiency for federal or New York state income 18 tax purposes, or 19 (4) in the case of the tax imposed under subchapter two or three-A of 20 this chapter, the taxpayer fails to file a report or amended return or 21 report required thereunder, in respect of a change or correction of 22 sales and compensating use tax liability, relating to the purchase or 23 use of items for which a sales or compensating use tax credit against 24 the tax imposed by subchapter two or three-A was claimed. 25 (b) Extension by agreement. Where, before the expiration of the time 26 prescribed in this section for the assessment of tax, both the commis- 27 sioner of finance and the taxpayer have consented in writing to its 28 assessment after such time, the tax may be assessed at any time prior to 29 the expiration of the period agreed upon. The period so agreed upon may 30 be extended by subsequent agreements in writing made before the expira- 31 tion of the period previously agreed upon. 32 (c) Report of federal or New York state change or correction. In the 33 case of the tax imposed under subchapter two, three or three-A of this 34 chapter, if the taxpayer files a report or amended return required ther- 35 eunder, in respect of an increase or decrease in federal or New York 36 state taxable income, alternative minimum taxable income or other basis 37 of tax or federal or New York state tax, or in respect of a change or 38 correction or renegotiation, or in respect of the execution of a notice 39 of waiver report of which is required thereunder, or computation or 40 recomputation of tax, which is treated in the same manner as if it were 41 a deficiency for federal or New York state income tax purposes, the 42 assessment, if not deemed to have been made upon the filing of the 43 report or amended return may be made at any time within two years after 44 such report or amended return was filed. The amount of such assessment 45 of tax shall not exceed the amount of the increase in city tax attribut- 46 able to such federal or New York state change or correction or renegoti- 47 ation, or computation or recomputation of tax. The provisions of this 48 paragraph shall not affect the time within which or the amount for which 49 an assessment may otherwise be made. 50 (d) Deficiency attributable to net operating loss carryback. If a 51 deficiency of tax under subchapter two or three-A of this chapter is 52 attributable to the application to taxpayer of a net operating loss 53 carryback or a capital loss carryback, it may be assessed at any time 54 that a deficiency for the taxable year of the loss may be assessed. 55 (e) Recovery of erroneous refund. An erroneous refund shall be 56 considered an underpayment of tax on the date made, and an assessment ofS. 8474 675 1 a deficiency arising out of an erroneous refund may be made at any time 2 within two years from the making of the refund, except that the assess- 3 ment may be made within five years from the making of the refund if it 4 appears that any part of the refund was induced by fraud or misrepresen- 5 tation of a material fact. 6 (f) Request for prompt assessment. The tax shall be assessed within 7 eighteen months after written request therefor, made after the return is 8 filed, by the taxpayer or by a fiduciary representing the taxpayer, but 9 not more than three years after the return was filed, except as other- 10 wise provided in this subdivision and subdivision four of this section. 11 This subdivision shall not apply unless: 12 (1) (A) such written request notifies the commissioner of finance that 13 the taxpayer contemplates dissolution at or before the expiration of 14 such eighteen-month period, (B) the dissolution is in good faith begun 15 before the expiration of such eighteen-month period, (C) the dissolution 16 is completed; 17 (2) (A) such written request notifies the commissioner of finance that 18 a dissolution has in good faith been begun, and (B) the dissolution is 19 completed; or 20 (3) a dissolution has been completed at the time such written request 21 is made. 22 (g) Change of the allocation of taxpayer's income or capital. (1) 23 With regard to taxable years beginning before January first, two thou- 24 sand fifteen, no change of the allocation of income or capital upon 25 which the taxpayer's return, or any additional assessment, was based 26 shall be made where an assessment of tax is made during the additional 27 period of limitation under subparagraph three or four of paragraph (a) 28 of this subdivision, or under paragraph (c), (d) or (i) of this subdivi- 29 sion; and where any such assessment has been made, or where a notice of 30 deficiency has been mailed to the taxpayer on the basis of any such 31 proposed assessment, no change of the allocation of income or capital 32 shall be made in a proceeding on the taxpayer's claim for refund of such 33 assessment or on the taxpayer's petition for redetermination of such 34 deficiency. 35 (2) With regard to taxable years beginning on or after January first, 36 two thousand fifteen, no change of the allocation of income or capital 37 upon which the taxpayer's return, or any additional assessment, was 38 based shall be made where an assessment of tax is made during the addi- 39 tional period of limitation under subparagraph three or four of para- 40 graph (a) or under paragraph (c), (d) or (i) of this subdivision, except 41 to the extent such assessment is based on an increase or decrease in New 42 York state taxable income or other basis of tax or New York state tax, 43 or based on a change, correction or renegotiation of tax, or based on 44 the execution of a notice of waiver report which is required there- 45 under, or computation or recomputation of tax, which is treated in the 46 same manner as if it were a deficiency for New York state income tax 47 purposes; and where any such assessment has been made, or where a notice 48 of deficiency has been mailed to the taxpayer on the basis of any such 49 proposed assessment, no change of the allocation of income or capital 50 shall be made in a proceeding on the taxpayer's claim for refund of 51 such assessment or on the taxpayer's petition for redetermination of 52 such deficiency, except to the extent such assessment is based on an 53 increase or decrease in New York state taxable income or other basis of 54 tax or New York state tax, or based on a change or correction or renego- 55 tiation of tax, or based on the execution of a notice of waiver report 56 which is required thereunder, or computation or recomputation of tax,S. 8474 676 1 which is treated in the same manner as if it were an overpayment for New 2 York state income tax purposes. 3 (h) Report concerning waste treatment facility. Under the circum- 4 stances described in subparagraph three of paragraph (g) of subdivision 5 eight of section 11-602 of this chapter or in subparagraph three of 6 paragraph (g) of subdivision eight of section 11-652 of this chapter, 7 the tax may be assessed within three years after the filing of the 8 report containing the information required by such paragraph. 9 (i) Report of changed or corrected sales and compensating use tax 10 liability. In the case of a tax imposed under subchapter two or three-A 11 of this chapter, if the taxpayer files a report or amended return or 12 report required thereunder, in respect of a change or correction of 13 sales and compensating use tax liability, the assessment, if not deemed 14 to have been made upon the filing of the report, may be made at any time 15 within two years after such report or amended return or report was 16 filed. The amount of such assessment of tax shall not exceed the amount 17 of the increase in city tax attributable to such state change or 18 correction. The provisions of this paragraph shall not affect the time 19 within which or the amount for which an assessment may otherwise be 20 made. 21 4. Omission of income on return. The tax may be assessed at any time 22 within six years after the return was filed if a taxpayer omits from 23 gross income required to be reported on a return under any of the named 24 subchapters an amount properly includable therein which is in excess of 25 twenty-five per centum of the amount of gross income stated in the 26 return. 27 For the purposes of this subdivision: 28 (a) the term "gross income" means gross income for federal income tax 29 purposes as reportable on a return under subchapter two or three-A of 30 this chapter and "gross earnings", "gross income," "gross operating 31 income" and "gross direct premiums less return premiums," as those terms 32 are used in whichever of the named subchapters is applicable; 33 (b) there shall not be taken into account any amount which is omitted 34 in the return if such amount is disclosed in the return, or in a state- 35 ment attached to the return, in a manner adequate to apprise the commis- 36 sioner of finance of the nature and amount of such item. 37 5. Suspension of running of period of limitations. The running of the 38 period of limitations on assessment or collection of tax or other 39 amount, or of a tranferee's liability, shall, after the mailing of a 40 notice of deficiency, be suspended for the period during which the 41 commissioner of finance is prohibited under subdivision three of section 42 11-672 of this subchapter from making the assessment or from collecting 43 by levy. 44 § 11-675 Interest on underpayment. 1. General. If any amount of tax 45 is not paid on or before the last date prescribed in whichever of the 46 named subchapters is applicable for payment, interest on such amount at 47 the underpayment rate set by the commissioner of finance pursuant to 48 section 11-687 of this subchapter, or, if no rate is set, at the rate of 49 seven and one-half percent per annum shall be paid for the period from 50 such last date to the date paid, whether or not any extension of time 51 for payment was granted. Interest under this subdivision shall not be 52 paid if the amount thereof is less than one dollar. 53 2. Exception as to estimated tax. This section shall not apply to any 54 failure to pay estimated tax under subchapter two, three or three-A of 55 this chapter.S. 8474 677 1 3. Exception for mathematical error. No interest shall be imposed on 2 any underpayment of tax due solely to mathematical error if the taxpayer 3 files a return within the time prescribed in whichever of the named 4 subchapters is applicable, including any extension of time, and pays the 5 amount of underpayment within three months after the due date of such 6 return, as it may be extended. 7 4. Suspension of interest on deficiencies. If a waiver of 8 restrictions on assessment of a deficiency has been filed by the taxpay- 9 er, and if notice and demand by the commissioner of finance for payment 10 of such deficiency is not made within thirty days after the filing of 11 such waiver, interest shall not be imposed on such deficiency for the 12 period beginning immediately after such thirtieth day and ending with 13 the date of notice and demand. 14 5. Tax reduced by carryback. If the amount of tax under subchapter 15 two or three-A for any taxable year is reduced by reason of a carryback 16 of a net operating loss or a capital loss, such reduction in tax shall 17 not affect the computation of interest under this section for the period 18 ending with the filing date for the taxable year in which the net oper- 19 ating loss or capital loss arises. Such filing date shall be determined 20 without regard to extensions of time to file. 21 6. Interest treated as tax. Interest under this section shall be paid 22 upon notice and demand and shall be assessed, collected and paid in the 23 same manner as the taxes under the named subchapters. Any reference in 24 this subchapter to the tax imposed by the named subchapters, or any of 25 them, shall be deemed also to refer to interest imposed by this section 26 on such tax. 27 7. Interest on penalties or addition to tax. Interest shall be 28 imposed under subdivision one in respect to any assessable penalty or 29 addition to tax only if such assessable penalty or addition to tax is 30 not paid within ten days from the date of the notice and demand therefor 31 under subdivision two of section 11-683 of this subchapter in such case 32 interest shall be imposed only for the period from such date of the 33 notice and demand to the date of payment. 34 8. Payment within ten days after notice and demand. If notice and 35 demand is made for payment of any amount under subdivision two of 36 section 11-683 of this subchapter, and if such amount is paid within ten 37 days after the date of such notice and demand, interest under this 38 section on the amount so paid shall not be imposed for the period after 39 the date of such notice and demand. 40 9. Limitation on assessment and collection. Interest prescribed under 41 this section may be assessed and collected at any time during the period 42 within which the tax or other amount to which such interest relates may 43 be assessed and collected respectively. 44 10. Interest on erroneous refund. Any portion of tax or other amount 45 which has been erroneously refunded, and which is recoverable by the 46 commissioner of finance, shall bear interest at the underpayment rate 47 set by the commissioner of finance pursuant to section 11-687 of this 48 subchapter, or, if no rate is set, at the rate of seven and one-half 49 percent per annum from the date of the payment of the refund, but only 50 if it appears that any part of the refund was induced by fraud or a 51 misrepresentation of a material fact. 52 11. Satisfaction by credits. If any portion of a tax is satisfied by 53 credit of an overpayment, then no interest shall be imposed under this 54 section on the portion of the tax so satisfied for any period during 55 which, if the credit had not been made, interest would have been allow- 56 able with respect to such overpayment.S. 8474 678 1 § 11-676 Additions to tax and civil penalties. 1. (a) Failure to file 2 return. (A) In case of failure to file a return under the named 3 subchapters on or before the prescribed date, determined with regard to 4 any extension of time for filing, unless it is shown that such failure 5 is due to reasonable cause and not due to willful neglect, there shall 6 be added to the amount required to be shown as tax on such return five 7 percent of the amount of such tax if the failure is for not more than 8 one month, with an additional five percent for each additional month or 9 fraction thereof during which such failure continues, not exceeding 10 twenty-five percent in the aggregate. 11 (B) In the case of a failure to file a return of tax within sixty days 12 of the date prescribed for filing of such return, determined with regard 13 to any extension of time for filing, unless it is shown that such fail- 14 ure is due to reasonable cause and not due to willful neglect, the addi- 15 tion to tax under subparagraph (A) of this paragraph shall not be less 16 than the lesser of one hundred dollars or one hundred percent of the 17 amount required to be shown as tax on such return. 18 (C) For purposes of this paragraph, the amount of tax required to be 19 shown on the return shall be reduced by the amount of any part of the 20 tax which is paid on or before the date prescribed for payment of the 21 tax and by the amount of any credit against the tax which may be claimed 22 upon the return. 23 (b) Failure to pay tax shown on return. In case of failure to pay the 24 amounts shown as tax on any return required to be filed under the named 25 subchapters on or before the prescribed date, determined with regard to 26 any extension of time for payment, unless it is shown that such failure 27 is due to reasonable cause and not due to willful neglect, there shall 28 be added to the amount shown as tax on such return one-half of one 29 percent of the amount of such tax if the failure is not for more than 30 one month, with an additional one-half of one percent for each addi- 31 tional month or fraction thereof during which such failure continues, 32 not exceeding twenty-five percent in the aggregate. For the purpose of 33 computing the addition for any month the amount of tax shown on the 34 return shall be reduced by the amount of any part of the tax which is 35 paid on or before the beginning of such month and by the amount of any 36 credit against the tax which may be claimed upon the return. If the 37 amount of tax required to be shown on a return is less than the amount 38 shown as tax on such return, this paragraph shall be applied by substi- 39 tuting such lower amount. 40 (c) Failure to pay tax required to be shown on return. In case of 41 failure to pay any amount in respect of any tax required to be shown on 42 a return required to be filed under the named subchapters which is not 43 so shown, including an assessment made pursuant to subdivision one of 44 section 11-673 of this subchapter, within ten days of the date of a 45 notice and demand therefor, unless it is shown that such failure is due 46 to reasonable cause and not due to willful neglect, there shall be added 47 to the amount of tax stated in such notice and demand one-half of one 48 percent of such tax if the failure is not for more than one month, with 49 an additional one-half of one percent for each additional month or frac- 50 tion thereof during which such failure continues, not exceeding twenty- 51 five percent in the aggregate. For the purpose of computing the addition 52 for any month, the amount of tax stated in the notice and demand shall 53 be reduced by the amount of any part of the tax which is paid before the 54 beginning of such month. 55 (d) Limitations on additions.S. 8474 679 1 (A) With respect to any return, the amount of the addition under para- 2 graph (a) of this subdivision shall be reduced by the amount of the 3 addition under paragraph (b) of this subdivision for any month to which 4 an addition applies under both paragraphs (a) and (b). In any case 5 described in subparagraph (B) of paragraph (a) of this subdivision, the 6 amount of the addition under such paragraph (a) shall not be reduced 7 below the amount provided in such subparagraph. 8 (B) With respect to any return, the maximum amount of the addition 9 permitted under paragraph (c) of this subdivision shall be reduced by 10 the amount of the addition under paragraph (a) of this subdivision, 11 determined without regard to subparagraph (B) of such paragraph (a), 12 which is attributable to the tax for which the notice and demand is made 13 and which is not paid within ten days of such notice and demand. 14 2. Deficiency due to negligence. (a) If any part of a deficiency is 15 due to negligence or intentional disregard of this subchapter or any of 16 the named subchapters or rules or regulations thereunder, but without 17 intent to defraud, there shall be added to the tax an amount equal to 18 five percent of the deficiency. 19 (b) There shall be added to the tax, in addition to the amount deter- 20 mined under paragraph (a) of this subdivision, an amount equal to fifty 21 percent of the interest payable under subdivision one of section 11-675 22 with respect to the portion of the deficiency described in such para- 23 graph (a) which is attributable to the negligence or intentional disre- 24 gard referred to in such paragraph (a), for the period beginning on the 25 last date prescribed by law for payment of such deficiency, determined 26 without regard to any extension, and ending on the date of the assess- 27 ment of the tax, or, if earlier, the date of the payment of the tax. 28 (c) If any payment is shown on a return made by a payor with respect 29 to dividends, patronage dividends and interest under subsection (a) of 30 section six thousand forty-two, subsection (a) of section six thousand 31 forty-four or subsection (a) of section six thousand forty-nine of the 32 internal revenue code of nineteen hundred fifty-four, respectively, and 33 the payee fails to include any portion of such payment in gross income, 34 as that term is defined in paragraph (a) of subdivision four of section 35 11-674, any portion of an underpayment attributable to such failure 36 shall be treated, for purposes of this subdivision, as due to negligence 37 in the absence of clear and convincing evidence to the contrary. If any 38 addition to tax is imposed under this subdivision by reason of the 39 preceding sentence, the amount of the addition to tax imposed by para- 40 graph (a) of this subdivision shall be five percent of the portion of 41 the underpayment which is attributable to the failure described in this 42 paragraph. 43 3. Failure to file declaration or underpayment of estimated tax. If 44 any taxpayer fails to file a declaration of estimated tax under subchap- 45 ter two, three or three-A of this chapter, or fails to pay all or any 46 part of an amount which is applied as an installment against such esti- 47 mated tax, it shall be deemed to have made an underpayment of estimated 48 tax. There shall be added to the tax for the taxable year an amount at 49 the underpayment rate set by the commissioner of finance pursuant to 50 section 11-687 of this subchapter, or, if no rate is set, at the rate of 51 seven and one-half percent per annum upon the amount of the underpayment 52 for the period of the underpayment but not beyond the fifteenth day of 53 the fourth month following the close of the taxable year. Provided, 54 however, that, for taxable years beginning on or after January first, 55 two thousand seventeen and before January first, two thousand eighteen, 56 no amount shall be added to the tax with respect to the portion of suchS. 8474 680 1 tax related to the amount of any interest deductions directly or indi- 2 rectly attributable to the amount included in exempt CFC income pursuant 3 to subparagraph (ii) of paragraph (b) of subdivision five-a of section 4 11-652 of this chapter or the forty percent reduction of such exempt CFC 5 income in lieu of interest attribution if the election described in 6 paragraph (b) of subdivision five-a of such section is made. The amount 7 of the underpayment shall be, with respect to any installment of esti- 8 mated tax computed on the basis of either the preceding year's tax or 9 the second preceding year's tax, the excess of the amount required to be 10 paid over the amount, if any, paid on or before the last day prescribed 11 for such payment or, with respect to any other installment of estimated 12 tax, the excess of the amount of the installment which would be required 13 to be paid if the estimated tax were equal to ninety percent of the tax 14 shown on the return for the taxable year, or if no return was filed, 15 ninety percent of the tax for such year, over the amount, if any, of the 16 installment paid on or before the last day prescribed for such payment. 17 In any case in which there would be no underpayment if "eighty percent" 18 were substituted for "ninety percent" each place it appears in this 19 subdivision, the addition to the tax shall be equal to seventy-five 20 percent of the amount otherwise determined. No underpayment shall be 21 deemed to exist with respect to a declaration or installment otherwise 22 due on or after the termination of existence of the taxpayer. 23 4. Exception to addition for underpayment of estimated tax. The addi- 24 tion to tax under subdivision three of this section with respect to any 25 underpayment of any amount which is applied as an installment against 26 estimated tax under subchapter two, three or three-A of this chapter 27 shall not be imposed if the total amount of all payments of estimated 28 tax made on or before the last date prescribed for the payment of any 29 such amount equals or exceeds the amount which would have been required 30 to be paid on or before such date if the estimated tax were whichever of 31 the following is the least: 32 (a) The tax shown on the return of the taxpayer for the preceding 33 taxable year, if a return showing a liability for tax was filed by the 34 taxpayer for the preceding taxable year and such preceding year was a 35 taxable year of twelve months, or 36 (b) An amount equal to the tax computed at the rates applicable to the 37 taxable year, but otherwise on the basis of the facts shown on the 38 return of the taxpayer for, and the law applicable to, the preceding 39 taxable year, or 40 (c) (i) An amount equal to ninety per centum of the tax for the taxa- 41 ble year computed by placing on an annualized basis the taxable income: 42 (1) for the first three months or the first five months of the taxable 43 year, in the case of the installment required to be paid in the sixth 44 month, 45 (2) for the first six months or the first eight months of the taxable 46 year, in the case of the installment required to be paid in the ninth 47 month, and 48 (3) for the first nine months or the first eleven months of the taxa- 49 ble year, in the case of the installment required to be paid in the 50 twelfth month. 51 (ii) For purposes of subparagraph (i) of this paragraph the taxable 52 income shall be placed on an annualized basis by: 53 (1) multiplying it by twelve, or, in the case of a taxable year of 54 less than twelve months, the number of months in the taxable year, andS. 8474 681 1 (2) dividing the resulting amount by the number of months in the taxa- 2 ble year, three, five, six, eight, nine or eleven, as the case may be, 3 referred to in subparagraph (i) of this paragraph, or 4 (d) (i) If the base period percentage for any six consecutive months 5 of the taxable year equals or exceeds seventy percent, an amount equal 6 to ninety percent of the tax determined in the following manner: 7 (A) take the taxable income for all months during the taxable year 8 preceding the filing month, 9 (B) divide such amount by the base period percentage for all months 10 during the taxable year preceding the filing month, 11 (C) determine the tax on the amount determined under clause (B) of 12 this subparagraph, and 13 (D) multiply the tax determined under clause (C) of this subparagraph 14 by the base period percentage for the filing month and all months during 15 the taxable year preceding the filing month. 16 (ii) For purposes of subparagraph (i) of this paragraph: 17 (A) the base period percentage for any period of months shall be the 18 average percent which the taxable income for the corresponding months in 19 each of the three preceding taxable years bears to the taxable income 20 for the three preceding taxable years. The commissioner of finance may 21 by regulations provide for the determination of the base period percent- 22 age in the case of reorganizations, new corporations, and other similar 23 circumstances, and 24 (B) the term "filing month" means the month in which the installment 25 is required to be paid. 26 5. (a) Except as provided in paragraph (b) of this subdivision, para- 27 graphs (a) and (b) of subdivision four of this section shall not apply 28 in the case of any corporation, or any predecessor corporation, which 29 had entire net income, or the portion thereof allocated within the city, 30 of one million dollars or more for any taxable year during the three 31 taxable years immediately preceding the taxable year involved. 32 (b) The amount treated as the estimated tax under paragraphs (a) and 33 (b) of subdivision four of this section shall in no event be less than 34 seventy-five percent of the tax shown on the return for the taxable year 35 beginning in nineteen hundred eighty-three or, if no return was filed, 36 seventy-five percent of the tax for such year. 37 6. Deficiency due to fraud. (a) If any part of a deficiency is due to 38 fraud, there shall be added to the tax an amount equal to two times the 39 deficiency. 40 (b) The addition to tax under this subdivision shall be in lieu of any 41 other addition to tax imposed by subdivision one or two of this section. 42 7. Additional penalty. Any person who with fraudulent intent shall 43 fail to pay under the named subchapters any tax, or to make, render, 44 sign or certify any return or declaration of estimated tax, or to supply 45 any information within the time required by or under any of the named 46 subchapters, shall be liable to penalty of not more than one thousand 47 dollars, in addition to any other amounts required under this subchapter 48 to be imposed, assessed and collected by the commissioner of finance. 49 The commissioner of finance shall have the power, in his or her 50 discretion, to waive, reduce or compromise any penalty under this subdi- 51 vision. 52 8. Additions treated as tax. The additions to tax and penalties 53 provided by this section shall be paid upon notice and demand and shall 54 be assessed, collected and paid in the same manner as taxes, and any 55 reference in this subchapter to tax imposed by any of the named subchap- 56 ters shall be deemed also to refer to the additions to tax and penaltiesS. 8474 682 1 provided by this section. For purposes of section 11-672 of this 2 subchapter, this subdivision shall not apply to: 3 (a) any addition to tax under subdivision one of this section except 4 as to that portion attributable to a deficiency; 5 (b) any addition to tax under subdivision three or fourteen of this 6 section; and 7 (c) any additional penalties under subdivisions seven and twelve of 8 this section. 9 9. Determination of deficiency. For purposes of subdivisions two and 10 six of this section the amount shown as the tax by the taxpayer upon its 11 return shall be taken into account in determining the amount of the 12 deficiency only if such return was filed on or before the last day 13 prescribed for the filing of such return, determined with regard to any 14 extension of time for such filing. 15 10. Person defined. For purposes of subdivisions seven and twelve of 16 this section, the term "person" includes an individual, corporation or 17 partnership or an officer or employee of any corporation, including a 18 dissolved corporation, or a member or employee of any partnership, who 19 as such officer, employee, or member is under a duty to perform the act 20 in respect of which the violation occurs. 21 11. Substantial understatement of liability. If there is a substantial 22 understatement of tax for any taxable year, there shall be added to the 23 tax an amount equal to ten percent of the amount of any underpayment 24 attributable to such understatement. For purposes of this subdivision, 25 there is a substantial understatement of tax for any taxable year if the 26 amount of the understatement for the taxable year exceeds the greater of 27 ten percent of the tax required to be shown on the return for the taxa- 28 ble year or five thousand dollars. For purposes of this subdivision, the 29 term "understatement" means the excess of the amount of the tax required 30 to be shown on the return for the taxable year, over the amount of the 31 tax imposed which is shown on the return, reduced by any rebate, within 32 the meaning of subdivision eight of section 11-672 of this subchapter. 33 The amount of such understatement shall be reduced by that portion of 34 the understatement which is attributable to the tax treatment of any 35 item by the taxpayer if there is or was substantial authority for such 36 treatment, or any item with respect to which the relevant facts affect- 37 ing the item's tax treatment are adequately disclosed in the return or 38 in a statement attached to the return. The commissioner of finance may 39 waive all or any part of the addition to tax provided by this subdivi- 40 sion on a showing by the taxpayer that there was reasonable cause for 41 the understatement, or part thereof, and that the taxpayer acted in good 42 faith. 43 12. Aiding or assisting in the giving of fraudulent returns, reports, 44 statements or other documents. (a) Any person who, with the intent that 45 tax be evaded, shall, for a fee or other compensation or as an incident 46 to the performance of other services for which such person receives 47 compensation, aid or assist in, or procure, counsel, or advise the prep- 48 aration or presentation under, or in connection with any matter arising 49 under this chapter of any return, report, declaration, statement or 50 other document which is fraudulent or false as to any material matter, 51 or supply any false or fraudulent information, whether or not such 52 falsity or fraud is with the knowledge or consent of the person author- 53 ized or required to present such return, report, declaration, statement 54 or other document shall pay a penalty not exceeding ten thousand 55 dollars.S. 8474 683 1 (b) For purposes of paragraph (a) of this subdivision, the term 2 "procures" includes ordering, or otherwise causing, a subordinate to do 3 an act, and knowing of, and not attempting to prevent, participation by 4 a subordinate in an act. The term "subordinate" means any other person, 5 whether or not a director, officer, employee, or agent of the taxpayer 6 involved, over whose activities the person has direction, supervision, 7 or control. 8 (c) For purposes of paragraph (a) of this subdivision, a person 9 furnishing typing, reproducing, or other mechanical assistance with 10 respect to a document shall not be treated as having aided or assisted 11 in the preparation of such document by reason of such assistance. 12 (d) The penalty imposed by this subdivision shall be in addition to 13 any other penalty provided by law. 14 13. Failure to file report of information relating to certain interest 15 payments. In case of failure to file the report of information required 16 under either subdivision two-a of section 11-605 of this chapter or 17 subdivision two-a of section 11-655 of this chapter, unless it is shown 18 that such failure is due to reasonable cause and not due to willful 19 neglect, there shall be added to the tax a penalty of five hundred 20 dollars. 21 14. Failure to include on return information relating to issuer's 22 allocation percentage. Where a return is filed but does not contain (1) 23 the information necessary to compute the taxpayer's issuer's allocation 24 percentage, as defined in subparagraph one of paragraph (b) of subdivi- 25 sion three of section 11-604 of this chapter, where the same is called 26 for on the return, or, (2) the taxpayer's issuer's allocation percent- 27 age, where the same is called for on the return but where all of the 28 information necessary for the computation of such percentage is not 29 called for on the return, then unless it is shown that such failure is 30 due to reasonable cause and not due to willful neglect there shall be 31 added to the tax a penalty of five hundred dollars. 32 15. False or fraudulent document penalty. Any taxpayer that submits a 33 false or fraudulent document to the department shall be subject to a 34 penalty of one hundred dollars per document submitted, or five hundred 35 dollars per tax return submitted. Such penalty shall be in addition to 36 any other penalty or addition provided by law. 37 § 11-677 Overpayment. 1. General. The commissioner of finance, 38 within the applicable period of limitations, may credit an overpayment 39 of tax and interest on such overpayment against any liability in respect 40 of any tax imposed by this title on the taxpayer who made the overpay- 41 ment, and the balance shall be refunded out of the proceeds of the tax. 42 Such credit of an overpayment shall be applied before such overpay- 43 ment, or any portion thereof, is paid to the state commissioner of taxa- 44 tion and finance pursuant to section one hundred seventy-one-m of the 45 tax law. 46 2. Credits against estimated tax. The commissioner of finance may 47 prescribe regulations providing for the crediting against the estimated 48 tax under subchapter two, three or three-A of this chapter for any taxa- 49 ble year of the amount determined to be an overpayment of tax under any 50 such subchapter for a preceding taxable year. If any overpayment of tax 51 is so claimed as a credit against estimated tax for the succeeding taxa- 52 ble year, such amount shall be considered as a payment of the tax under 53 subchapter two, three or three-A of this chapter for the succeeding 54 taxable year, whether or not claimed as a credit in the declaration of 55 estimated tax for such succeeding taxable year, and no claim for creditS. 8474 684 1 or refund of such overpayment shall be allowed for the taxable year for 2 which the overpayment arises. 3 3. Rule where no tax liability. If there is no tax liability for a 4 period in respect of which an amount is paid as tax, such amount shall 5 be considered an overpayment. 6 4. Assessment and collection after limitation period. If any amount 7 of tax is assessed or collected after the expiration of the period of 8 limitations properly applicable thereto, such amount shall be considered 9 an overpayment. 10 5. Assignment of overpayment. A credit for an overpayment of tax 11 under any of the named subchapters may be assigned by the taxpayer to a 12 corporation liable to pay taxes under any of the named subchapters, and 13 the assignee of the whole or any part of such credit, on filing such 14 assignment with the commissioner of finance, shall thereupon be entitled 15 to credit upon the books of the commissioner of finance for the amount 16 thereof on its current account for taxes, in the same manner and to the 17 same effect as though the credit had originally been allowed in its 18 favor. 19 6. Notwithstanding article fifty-two of the civil practice law and 20 rules or any other provision of law to the contrary, the procedures for 21 the enforcement of money judgments shall not apply to the department of 22 finance, or to any officer or employee of such department, as a garnish- 23 ee, with respect to any amount of money to be refunded or credited to a 24 taxpayer under this chapter. 25 § 11-678 Limitations on credit or refund. 1. General. Claim for 26 credit or refund of an overpayment of tax under any of the named 27 subchapters shall be filed by the taxpayer within three years from the 28 time the return was filed or two years from the time the tax was paid, 29 whichever of such periods expires the later, or if no return was filed 30 within two years from the time the tax was paid. If the claim is filed 31 within the three year period, the amount of the credit or refund shall 32 not exceed the portion of the tax paid within the three years immediate- 33 ly preceding the filing of the claim plus the period of any extension of 34 time for filing the return. If the claim is not filed within the three 35 year period, but is filed within the two year period, the amount of the 36 credit or refund shall not exceed the portion of the tax paid during the 37 two years immediately preceding the filing of the claim. Except as 38 otherwise provided in this section, if no claim is filed, the amount of 39 a credit or refund shall not exceed the amount which would be allowable 40 if a claim had been filed on the date the credit or refund is allowed. 41 For special restriction in a proceeding on a claim for refund of tax 42 paid pursuant to an assessment made as a result of: (a) a net operating 43 loss carryback, or (b) an increase or decrease in federal or New York 44 state taxable income or other basis of tax or federal or New York state 45 tax, or (c) a federal or New York state change or correction or renego- 46 tiation, or computation or recomputation of tax, which is treated in the 47 same manner as if it were a deficiency for federal or New York state 48 income tax purposes, see paragraph (g) of subdivision three of section 49 11-674 of this subchapter. 50 2. Extension of time by agreement. If any agreement under the 51 provisions of paragraph (b) of subdivision three of section 11-674 of 52 this subchapter, extending the period of assessment of tax, is made 53 within the period prescribed in subdivision one of this section for the 54 filing of a claim for credit or refund, the period for filing a claim 55 for credit or refund, or for making credit or refund if no claim is 56 filed, shall not expire prior to six months after the expiration of theS. 8474 685 1 period within which an assessment may be made pursuant to the agreement 2 or any extension thereof. The amount of such credit or refund shall not 3 exceed the portion of the tax paid after the execution of the agreement 4 and before the filing of the claim or the making of the credit or 5 refund, as the case may be, plus the portion of the tax paid within the 6 period which would be applicable under subdivision one if a claim had 7 been filed on the date the agreement was executed. 8 3. Notice of change or correction of federal or New York state income 9 or other basis of tax. If a taxpayer is required by subchapter two, 10 three or three-A of this chapter to file a report or amended return in 11 respect of (a) a decrease or increase in federal or New York state taxa- 12 ble income, alternative minimum taxable income or other basis of tax or 13 federal or New York state tax, (b) a federal or New York state change or 14 correction or renegotiation, or computation or recomputation of tax, 15 which is treated in the same manner as if it were an overpayment for 16 federal or New York state income tax purposes, claim for credit or 17 refund of any resulting overpayment of tax shall be filed by the taxpay- 18 er within two years from the time such report or amended return was 19 required to be filed with the commissioner of finance. If the report or 20 amended return required by subchapter two, three or three-A of this 21 chapter is not filed within the ninety day period therein specified, no 22 interest shall be payable on any claim for credit or refund of the over- 23 payment attributable to the federal or New York state change or 24 correction. The amount of such credit or refund: (c) shall, (i) for 25 taxable years beginning before January first, two thousand fifteen, be 26 computed without change of the allocation of income or capital upon 27 which the taxpayer's return, or any additional assessment, was based, 28 and, (ii) for taxable years beginning on or after January first, two 29 thousand fifteen, be computed without change of the allocation of 30 income or capital upon which the taxpayer's return, or any additional 31 assessment, was based to the extent that the claim for refund arises 32 from a decrease or increase in federal taxable income or other basis 33 of tax or federal tax, or from a federal change, correction, renegoti- 34 ation, computation or recomputation of tax, which is treated in the 35 same manner as if it were an overpayment for federal income tax 36 purposes, and (d) shall not exceed the amount of the reduction in tax 37 attributable to such decrease or increase in federal or New York state 38 taxable income, alternative minimum taxable income or other basis of tax 39 or federal or New York state tax or to such federal or New York state 40 change or correction or renegotiation, or computation or recomputation 41 of tax. 42 This subdivision shall not affect the time within which or the amount 43 for which a claim for credit or refund may be filed apart from this 44 subdivision. 45 4. Overpayment attributable to net operating loss carryback or capital 46 loss carryback. A claim for credit or refund of so much of an overpay- 47 ment under subchapter two or three-A of this chapter as is attributable 48 to the application to the taxpayer of a net operating loss carryback or 49 a capital loss carryback shall be filed within three years from the time 50 the return was due, including extensions thereof, for the taxable year 51 of the loss, or within the period prescribed in subdivision two of this 52 section in respect of such taxable year, or within the period prescribed 53 in subdivision three of this section, where applicable, in respect to 54 the taxable year to which the net operating loss or capital loss is 55 carried back, whichever expires the latest. Where such claim for credit 56 or refund is filed after the expiration of the period prescribed inS. 8474 686 1 subdivision one or in subdivision two of this section where applicable, 2 in respect to the taxable year to which the net operating loss is 3 carried back, the amount of such credit or refund shall be computed 4 without change of the allocation of income or capital upon which the 5 taxpayer's return, or any additional assessment, was based. 6 5. Failure to file claim within prescribed period. No credit or 7 refund shall be allowed or made, except as provided in subdivision six 8 of this section or subdivision four of section 11-681 of this subchap- 9 ter, after the expiration of the applicable period of limitation speci- 10 fied in this subchapter, unless a claim for credit or refund is filed by 11 the taxpayer within such period. Any later credit shall be void and 12 any later refund erroneous. No period of limitations specified in any 13 other law shall apply to the recovery by a taxpayer of moneys paid in 14 respect of taxes under the named subchapters. 15 6. Effect of a petition to tax appeals tribunal. If a notice of defi- 16 ciency for a taxable year has been mailed to the taxpayer under section 17 11-672 of this subchapter and if the taxpayer files a timely petition 18 with the tax appeals tribunal under section 11-680 of this subchapter, 19 the tax appeals tribunal may determine that the taxpayer has made an 20 overpayment for such year, whether or not it also determines a deficien- 21 cy for such year. No separate claim for credit or refund for such year 22 shall be filed, and no credit or refund for such year shall be allowed 23 or made, except: 24 (a) as to overpayment determined by a decision of the tax appeals 25 tribunal which has become final; and 26 (b) as to any amount collected in excess of an amount computed in 27 accordance with the decision of the tax appeals tribunal which has 28 become final; and 29 (c) as to any amount collected after the period of limitation upon the 30 making of levy for collection has expired; and 31 (d) as to any amount claimed as a result of a change or correction 32 described in subdivision three of this section. 33 7. Limit on amount of credit or refund. The amount of overpayment 34 determined under subdivision six of this section shall, when the deci- 35 sion of the tax appeals tribunal has become final, be credited or 36 refunded in accordance with subdivision one of section 11-677 of this 37 subchapter and shall not exceed the amount of tax which the tax appeals 38 tribunal determines as part of its decision was paid: 39 (a) after the mailing of the notice of deficiency, or 40 (b) within the period which would be applicable under subdivision one, 41 two or three of this section, if on the date of the mailing of the 42 notice of deficiency a claim had been filed, whether or not filed, stat- 43 ing the ground upon which the tax appeals tribunal finds that there is 44 an overpayment. 45 For special restriction on credit or refund in a proceeding on a peti- 46 tion for redetermination of a deficiency where the notice of deficiency 47 is issued as a result of (i) a net operating loss carryback, or (ii) an 48 increase or decrease in federal or New York state taxable income or 49 other basis of tax or federal or New York state tax, or (iii) a federal 50 or New York state change or correction or renegotiation, or computation 51 or recomputation of tax, which is treated in the same manner as if it 52 were a deficiency for federal or New York state income tax purposes, see 53 paragraph (g) of subdivision three of section 11-674 of this subchapter. 54 8. Early return. For purposes of this section, any return filed 55 before the last day prescribed for the filing thereof shall be consid-S. 8474 687 1 ered as filed on such last day, determined without regard to any exten- 2 sion of time granted the taxpayer. 3 9. Prepaid tax. For purposes of this section, any tax paid by the 4 taxpayer before the last day prescribed for its payment, including any 5 amount paid by the taxpayer as estimated tax for a taxable year, shall 6 be deemed to have been paid by it on the fifteenth day of the third 7 month following the close of the taxable year the income of which is the 8 basis for tax under subchapter two, three or three-A of this chapter, or 9 on the last day prescribed in part one of subchapter three or subchapter 10 four of this chapter for the filing of a final return for such taxable 11 year, or portion thereof, determined in all cases without regard to any 12 extension of time granted the taxpayer. 13 10. Cross reference. For provision barring refund of overpayment 14 credited against tax of a succeeding year, see subdivision two of 15 section 11-677 of this subchapter. 16 11. Notice of change or correction of sales and compensating use tax 17 liability. (a) If a taxpayer is required by subchapter two or three-A of 18 this chapter to file a report or amended return in respect of a change 19 or correction of its sales and compensating use tax liability, claim for 20 credit or refund of any resulting overpayment of tax shall be filed by 21 the taxpayer within two years from the time such report or amended 22 return was required to be filed with the commissioner of finance. The 23 amount of such credit or refund shall be computed without change of the 24 allocation of income or capital upon which the taxpayer's return, or any 25 additional assessment, was based, and shall not exceed the amount of the 26 reduction in tax attributable to such change or correction of sales and 27 compensating use tax liability. 28 (b) This subdivision shall not affect the time within which or the 29 amount for which a claim for credit or refund may be filed apart from 30 this subdivision. 31 § 11-679 Interest on overpayment. 1. General. Notwithstanding the 32 provisions of section three-a of the general municipal law, interest 33 shall be allowed and paid as follows at the overpayment rate set by the 34 commissioner of finance pursuant to section 11-687 of this subchapter, 35 or, if no rate is set, at the rate of six percent per annum upon any 36 overpayment in respect to the tax imposed by any of the named subchap- 37 ters: 38 (a) from the date of the overpayment to the due date of an amount 39 against which a credit is taken; 40 (b) from the date of the overpayment to a date, to be determined by 41 the commissioner of finance, preceding the date of a refund check by not 42 more than thirty days, whether or not such refund check is accepted by 43 the taxpayer after tender of such check to the taxpayer. The acceptance 44 of such check shall be without prejudice to any right of the taxpayer to 45 claim any additional overpayment and interest thereon. 46 (c) Late and amended returns and claims for credit or refund. 47 Notwithstanding paragraph (a) or (b) of this subdivision, in the case of 48 an overpayment claimed on a return of tax which is filed after the last 49 date prescribed for filing such return, determined with regard to exten- 50 sions, or claimed on an amended return of tax or claimed on a claim for 51 credit or refund, no interest shall be allowed or paid for any day 52 before the date on which such return or claim is filed. 53 (d) Interest on certain refunds. To the extent provided for in regu- 54 lations promulgated by the commissioner of finance, if an item of 55 income, gain, loss, deduction or credit is changed from the taxable year 56 or period in which it is reported to the taxable year or period in whichS. 8474 688 1 it belongs and the change results in an underpayment in a taxable year 2 or period and an overpayment in some other taxable year or period, the 3 provisions of paragraph (c) of this subdivision with respect to an over- 4 payment shall not be applicable to the extent that the limitation in 5 such paragraph on the right to interest would result in a taxpayer not 6 being allowed interest for a length of time with respect to an overpay- 7 ment while being required to pay interest on an equivalent amount of the 8 related underpayment. However, this paragraph shall be not construed as 9 limiting or mitigating the effect of any statute of limitations or any 10 other provision of law relating to the authority of such commissioner to 11 issue a notice of deficiency or to allow a credit or refund of an over- 12 payment. 13 (e) Amounts of less than one dollar. No interest shall be allowed or 14 paid if the amount thereof is less than one dollar. 15 2. Advance payment of tax and estimated tax. The provisions of subdi- 16 visions eight and nine of section 11-678 of this subchapter applicable 17 in determining the date of payment of tax for purposes of determining 18 the period of limitations on credit or refund, shall be applicable in 19 determining the date of payment for purposes of this section. 20 3. Tax refund within three months of claim for overpayment. If any 21 overpayment of tax imposed by any of the named subchapters is credited 22 or refunded within three months after the last date prescribed, or 23 permitted by extension of time, for filing the return of such tax on 24 which such overpayment was claimed or within three months after such 25 return was filed, whichever is later, or within three months after an 26 amended return was filed claiming such overpayment or within three 27 months after a claim for credit or refund was filed on which such over- 28 payment was claimed, no interest shall be allowed under this section on 29 any such overpayment. For purposes of this subdivision, any amended 30 return or claim for credit or refund filed before the last day 31 prescribed, or permitted by extension of time, for the filing of the 32 return of tax for such year or period shall be considered as filed on 33 such last day. 34 4. Refund of tax caused by carryback. For purposes of this section, 35 if any overpayment of tax imposed by subchapter two or three-A of this 36 chapter results from a carryback of a net operating loss or a net capi- 37 tal loss, such overpayment shall be deemed not to have been made prior 38 to the filing date for the taxable year in which such net operating loss 39 or net capital loss arises. Such filing date shall be determined without 40 regard to extensions of time to file. For purposes of subdivision three 41 of this section any overpayment described herein shall be treated as an 42 overpayment for the loss year and such subdivision shall be applied with 43 respect to such overpayment by treating the return for the loss year as 44 not filed before claim for such overpayment is filed. The term "loss 45 year" means the taxable year in which such loss arises. 46 5. No interest until return in processible form. 47 (a) For purposes of subdivisions one and three of this section, a 48 return shall not be treated as filed until it is filed in processible 49 form. 50 (b) For purposes of paragraph (a) of this subdivision, a return is in 51 a processible form if: 52 (A) such return is filed on a permitted form, and 53 (B) such return contains: 54 (i) the taxpayer's name; address, and identifying number and the 55 required signatures, andS. 8474 689 1 (ii) sufficient required information, whether on the return or on 2 required attachments, to permit the mathematical verification of tax 3 liability shown on the return. 4 6. Cross reference. For provision with respect to interest after 5 failure to file a report of federal or New York state change or 6 correction or amended return under subchapter two, three or three-A, see 7 subdivision three of section 11-678 of this subchapter. 8 § 11-680 Petition to tax appeals tribunal. 1. General. The form of a 9 petition to the tax appeals tribunal, and further proceedings before the 10 tax appeals tribunal in any case initiated by the filing of a petition, 11 shall be governed by such rules as the tax appeals tribunal shall 12 prescribe. No petition shall be denied in whole or in part without 13 opportunity for a hearing on reasonable prior notice. Such hearing and 14 any appeal to the tribunal sitting en banc from the decision rendered in 15 such hearing shall be conducted in the manner and subject to the 16 requirements prescribed by the tax appeals tribunal pursuant to sections 17 one hundred sixty-eight through one hundred seventy-two of the charter 18 of the preceding municipality as it existed January first, nineteen 19 hundred ninety-four. A decision of the tax appeals tribunal shall be 20 rendered, and notice thereof shall be given, in the manner provided by 21 section one hundred seventy-one of the charter of the preceding munici- 22 pality as it existed January first, nineteen hundred ninety-four. 23 2. Petition for redetermination of a deficiency. Within ninety days, 24 or one hundred fifty days if the notice is addressed to a taxpayer whose 25 last known address is outside of the United States, after the mailing of 26 the notice of deficiency authorized by section 11-672 of this subchap- 27 ter, or if the commissioner of finance has established a conciliation 28 procedure pursuant to section 11-124 of this title and the taxpayer has 29 requested a conciliation conference in accordance therewith, after nine- 30 ty days from the mailing of the conciliation decision or the date of the 31 commissioner's confirmation of the discontinuance of the conciliation 32 proceeding, the taxpayer may file a petition with the tax appeals tribu- 33 nal for redetermination of the deficiency. Such petition may also assert 34 a claim for refund for the same taxable year or years, subject to the 35 limitations of subdivision seven of section 11-678 of this subchapter. 36 For special restriction where the notice of deficiency relates to a 37 proposed assessment made as a result of: (a) a net operating loss carry- 38 back or a capital loss carryback, (b) an increase or decrease in federal 39 or New York state taxable income or other basis of tax or federal or New 40 York state tax, or (c) a federal or New York state change or correction 41 or renegotiation, or computation or recomputation of tax, which is 42 treated in the same manner as if it were a deficiency for federal or New 43 York state income tax purposes, see paragraph (g) of subdivision three 44 of section 11-674 of this subchapter. 45 3. Petition for refund. A taxpayer may file a petition with the tax 46 appeals tribunal for the amounts asserted in a claim for refund if: 47 (a) the taxpayer has filed a timely claim for refund with the commis- 48 sioner of finance, 49 (b) the taxpayer has not previously filed with the tax appeals tribu- 50 nal a timely petition under subdivision two of this section for the same 51 taxable year unless the petition under this subdivision relates to a 52 separate claim for credit or refund properly filed under subdivision six 53 of section 11-678 of this subchapter, and 54 (c) either: (1) six months have expired since the claim was filed, or 55 (2) the commissioner of finance has mailed to the taxpayer, by regis-S. 8474 690 1 tered or certified mail, a notice of disallowance of such claim in whole 2 or in part. 3 No petition under this subdivision shall be filed more than two years 4 after the date of mailing of a notice of disallowance, unless prior to 5 the expiration of such two year period it has been extended by written 6 agreement between the taxpayer and the commissioner of finance. If a 7 taxpayer files a written waiver of the requirement that the taxpayer be 8 mailed a notice of disallowance, the two year period prescribed by this 9 subdivision for filing a petition for refund shall begin on the date 10 such waiver is filed. 11 (d) If the commissioner of finance has established a conciliation 12 procedure pursuant to section 11-124 of this title, a taxpayer which is 13 eligible to file a petition for refund with the tax appeals tribunal 14 pursuant to this subdivision may request a conciliation conference prior 15 to filing such petition, provided the request is made within the time 16 prescribed for filing the petition. Notwithstanding anything in this 17 subdivision to the contrary, if the taxpayer has requested a concil- 18 iation conference in accordance with the procedure established pursuant 19 to section 11-124 of this title, a petition for refund may be filed no 20 later than ninety days from the mailing of the conciliation decision or 21 the date of the commissioner's confirmation of the discontinuance of the 22 conciliation proceeding. 23 4. Assertion of deficiency after filing petition. 24 (a) Petition for redetermination of deficiency. If a taxpayer files 25 with the tax appeals tribunal a petition for redetermination of a defi- 26 ciency, the tax appeals tribunal shall have power to determine a greater 27 deficiency than asserted in the notice of deficiency and to determine if 28 there should be assessed any addition to tax or penalty provided in 29 section 11-676 of this subchapter, if claim therefor is asserted at or 30 before the hearing under rules of the tax appeals tribunal. 31 (b) Petition for refund. If the taxpayer files with the tax appeals 32 tribunal a petition for credit or refund for a taxable year, the tax 33 appeals tribunal may: 34 (1) determine a deficiency for such year as to any amount of deficien- 35 cy asserted at or before the hearing under rules of the tax appeals 36 tribunal and within the period in which an assessment would be timely 37 under section 11-674 of this subchapter, or 38 (2) deny so much of the amount for which credit or refund is sought in 39 the petition, as is offset by other issues pertaining to the same taxa- 40 ble year which are asserted at or before the hearing under rules of the 41 tax appeals tribunal. 42 (c) Opportunity to respond. A taxpayer shall be given a reasonable 43 opportunity to respond to any matters asserted by the commissioner of 44 finance under this subdivision. 45 (d) Restriction on further notices of deficiency. If the taxpayer 46 files a petition with the tax appeals tribunal under this section, no 47 notice of deficiency under section 11-672 of this subchapter may there- 48 after be issued by the commissioner of finance for the same taxable 49 year, except in case of fraud or with respect to an increase or decrease 50 in federal or New York state taxable income, alternative minimum taxable 51 income or other basis of tax or federal or New York state tax or a 52 federal or New York state change or correction or renegotiation, or 53 computation or recomputation of tax, which is treated in the same manner 54 as if it were a deficiency for federal or New York state income tax 55 purposes, required to be reported under subchapter two, three or three-A 56 of this chapter or with respect to a state change or correction of salesS. 8474 691 1 and compensating use tax liability required to be reported under 2 subchapter two or three-A of this chapter. 3 5. Burden of proof. In any case before the tax appeals tribunal under 4 this subchapter, the burden of proof shall be upon the petitioner except 5 for the following issues, as to which the burden of proof shall be upon 6 the commissioner of finance: 7 (a) whether the petitioner has been guilty of fraud with intent to 8 evade tax; 9 (b) whether the petitioner is liable as the transferee of property of 10 a taxpayer, but not to show that the taxpayer was liable for the tax; 11 (c) whether the petitioner is liable for any increase in a deficiency 12 where such increase is asserted initially after a notice of deficiency 13 was mailed and a petition under this section filed, unless such increase 14 in deficiency is the result of an increase or decrease in federal or New 15 York state taxable income, alternative minimum taxable income or other 16 basis of tax or federal or New York state tax or a federal or New York 17 state change or correction or renegotiation, or computation or recompu- 18 tation of tax, which is treated in the same manner as if it were a defi- 19 ciency for federal or New York state income tax purposes, required to be 20 reported under subchapter two, three or three-A of this chapter, and of 21 which increase, decrease, change or correction or renegotiation, or 22 computation or recomputation, the commissioner of finance had no notice 23 at the time he or she mailed the notice of deficiency or unless such 24 increase in deficiency is the result of a change or correction of sales 25 and compensating use tax liability required to be reported under 26 subchapter two or three-A of this chapter, and of which change or 27 correction the commissioner of finance had no notice at the time he or 28 she mailed the notice of deficiency; and 29 (d) whether any person is liable for a penalty under subdivision 30 twelve of section 11-676 of this subchapter. 31 6. Evidence of related federal or state determination. Evidence of a 32 federal or state determination relating to issues raised in a case 33 before the tax appeals tribunal under this section shall be admissible, 34 under rules established by the tax appeals tribunal. 35 7. Jurisdiction over other years. The tax appeals tribunal shall 36 consider such facts with relation to the taxes for other years as may be 37 necessary correctly to determine the tax for the taxable year, but in so 38 doing shall have no jurisdiction to determine whether or not the tax for 39 any other year has been overpaid or underpaid. 40 § 11-681 Review of tax appeals tribunal's decision. 1. General. A 41 decision of the tax appeals tribunal sitting en banc shall be subject to 42 judicial review at the instance of any taxpayer affected thereby in the 43 manner provided by law for the review of a final decision or action of 44 administrative agencies of the city. An application by a taxpayer for 45 such review must be made within four months after notice of the decision 46 is sent by certified mail, return receipt requested, to the taxpayer and 47 the commissioner of finance. 48 2. Judicial review exclusive remedy. The review of a decision of the 49 tax appeals tribunal provided by this section shall be the exclusive 50 remedy available to any taxpayer for the judicial determination of the 51 liability of the taxpayer for the taxes imposed by the named subchap- 52 ters. 53 3. Assessment pending review; review bond. Irrespective of any 54 restrictions on the assessment and collection of deficiencies, the 55 commissioner of finance may assess a deficiency determined by the tax 56 appeals tribunal in a decision rendered pursuant to section one hundredS. 8474 692 1 seventy-one of the charter of the preceding municipality as it existed 2 January first, nineteen hundred ninety-four after the expiration of the 3 period specified in subdivision one, notwithstanding that an application 4 for judicial review in respect of such deficiency has been duly made by 5 the taxpayer unless the taxpayer, at or before the time the taxpayer's 6 application for review is made, has paid the deficiency, has deposited 7 with the commissioner of finance the amount of the deficiency, or has 8 filed with the commissioner of finance a bond, which may be a jeopardy 9 bond under subdivision eight of section 11-685 of this subchapter, in 10 the amount of the portion of the deficiency, including interest and 11 other amounts, in respect of which the application for review is made 12 and all costs and charges which may accrue against the taxpayer in the 13 prosecution of the proceeding, including costs of all appeals, and with 14 surety approved by a justice of the supreme court of the state, condi- 15 tioned upon the payment of the deficiency, including interest and other 16 amounts, as finally determined and such costs and charges. If, as a 17 result of a waiver of the restrictions on the assessment and collection 18 of a deficiency, any part of the amount determined by the tax appeals 19 tribunal is paid after the filing of the review bond, such bond shall, 20 at the request of the taxpayer, be proportionately reduced. 21 4. Credit, refund or abatement after review. If the amount of a defi- 22 ciency determined by the tax appeals tribunal is disallowed in whole or 23 in part by the court of review, the amount so disallowed shall be cred- 24 ited or refunded to the taxpayer, without the making of claim therefor, 25 or, if payment has not been made, shall be abated. 26 5. Date of finality of tax appeals tribunal decision. A decision of 27 the tax appeals tribunal shall become final upon the expiration of the 28 period specified in subdivision one of this section for making an appli- 29 cation for review, if no such application has been duly made within such 30 time, or if such application has been duly made, upon expiration of the 31 time for all further judicial review, or upon the rendering by the tax 32 appeals tribunal of a decision in accordance with the mandate of the 33 court on review provided, however, for the purpose of making an applica- 34 tion for review, the decision of the tax appeals tribunal shall be 35 deemed final on the date the notice of decision is sent by certified 36 mail to the taxpayer and the commissioner of finance. 37 § 11-682 Mailing rules; holidays; miscellaneous. 1. Timely mailing. 38 (a) If any return, declaration of estimated tax, claim, statement, 39 notice, petition, or other document required to be filed, or any payment 40 required to be made, within a prescribed period or on or before a 41 prescribed date under authority of any provision of this subchapter or 42 of the named subchapters is, after such period or such date, delivered 43 by United States mail to the commissioner of finance, tax appeals tribu- 44 nal, bureau, office, officer or person with which or with whom such 45 document is required to be filed, or to which or to whom such payment is 46 required to be made, the date of the United States postmark stamped on 47 the envelope shall be deemed to be the date of delivery. This subdivi- 48 sion shall apply only if the postmark date falls within the prescribed 49 period or on or before the prescribed date for the filing of such docu- 50 ment, or for making the payment, including any extension granted for 51 such filing or payment, and only if such document or payment was depos- 52 ited in the mail, postage prepaid, properly addressed to the commission- 53 er of finance, tax appeals tribunal, bureau, office, officer or person 54 with which or with whom the document is required to be filed or to which 55 or to whom such payment is required to be made. If any document is sent 56 by United States registered mail, such registration shall be prima facieS. 8474 693 1 evidence that such document was delivered to the commissioner of 2 finance, tax appeals tribunal, bureau, office, officer or person to 3 which or to whom addressed. To the extent that the commissioner of 4 finance or, where relevant, the tax appeals tribunal shall prescribe by 5 regulation, certified mail may be used in lieu of registered mail under 6 this subdivision. Except as provided in paragraph (b) of this subdivi- 7 sion, this subdivision shall apply in the case of postmarks not made by 8 the United States postal service only if and to the extent provided by 9 regulations of the commissioner of finance or, where relevant, the tax 10 appeals tribunal. 11 (b) (i) Any reference in paragraph (a) of this subdivision to the 12 United States mail shall be treated as including a reference to any 13 delivery service designated by the secretary of the treasury of the 14 United States pursuant to section seventy-five hundred two of the inter- 15 nal revenue code and any reference in paragraph (a) of this subdivision 16 to a United States postmark shall be treated as including a reference to 17 any date recorded or marked in the manner described in section seventy- 18 five hundred two of the internal revenue code by a designated delivery 19 service. If the commissioner of finance finds that any delivery service 20 designated by such secretary is inadequate for the needs of the city, 21 the commissioner may withdraw such designation for purposes of this 22 title. The commissioner may also designate additional delivery services 23 meeting the criteria of section seventy-five hundred two of the internal 24 revenue code for purposes of this title, or may withdraw any such desig- 25 nation if the commissioner of finance finds that a delivery service so 26 designated is inadequate for the needs of the city. Any reference in 27 paragraph (a) of this subdivision to the United States mail shall be 28 treated as including a reference to any delivery service designated by 29 the commissioner of finance and any reference in paragraph (a) of this 30 subdivision to a United States postmark shall be treated as including a 31 reference to any date recorded or marked in the manner described in 32 section seventy-five hundred two of the internal revenue code by a 33 delivery service designated by the commissioner of finance, provided, 34 however, any withdrawal of designation or additional designation by the 35 commissioner of finance shall not be effective for purposes of service 36 upon the tax appeals tribunal, unless and until such withdrawal of 37 designation or additional designation is ratified by the president of 38 the tax appeals tribunal. 39 (ii) Any equivalent of registered or certified mail designated by the 40 United States secretary of the treasury, or as may be designated by the 41 commissioner of finance pursuant to the same criteria used by such 42 secretary for such designations pursuant to section seventy-five hundred 43 two of the internal revenue code, shall be included within the meaning 44 of registered or certified mail as used in paragraph (a) of this subdi- 45 vision. If the commissioner of finance finds that any equivalent of 46 registered or certified mail designated by such secretary or the commis- 47 sioner of finance is inadequate for the needs of the city, the commis- 48 sioner of finance may withdraw such designation for purposes of this 49 title, provided, however, any withdrawal of designation or additional 50 designation by the commissioner of finance shall not be effective for 51 purposes of service upon the tax appeals tribunal, unless and until such 52 withdrawal of designation or additional designation is ratified by the 53 president of the tax appeals tribunal. 54 2. Last known address. For purposes of this subchapter, a taxpayer's 55 last known address shall be the address given in the last return filedS. 8474 694 1 by it, unless subsequently to the filing of such return the taxpayer 2 shall have notified the commissioner of finance of a change of address. 3 3. Last day a Saturday, Sunday or legal holiday. When the last day 4 prescribed under authority of this subchapter or the named subchapters, 5 including any extension of time, for performing any act falls on a 6 Saturday, Sunday, or legal holiday in the state, the performance of such 7 act shall be considered timely if it is performed on the next succeeding 8 day which is not a Saturday, Sunday or legal holiday. 9 4. Certificate; unfiled return. For purposes of this subchapter and 10 sections one hundred sixty-eight through one hundred seventy-two of the 11 charter of the preceding municipality as it existed January first, nine- 12 teen hundred ninety-four, the certificate of the commissioner of finance 13 to the effect that a tax has not been paid, that a return or declaration 14 of estimated tax has not been filed, or that information has not been 15 supplied, as required by or under the provisions of this chapter, shall 16 be prima facie evidence that such tax has not been paid, that such 17 return or declaration has not been filed, or that such information has 18 not been supplied. 19 § 11-683 Collection, levy and liens. 1. Collection procedures. The 20 taxes imposed by the named subchapters shall be collected by the commis- 21 sioner of finance, and he or she may establish the mode or time for the 22 collection of any amount due him or her thereunder if not otherwise 23 specified. The commissioner of finance shall, upon request, give a 24 receipt for any sum collected thereunder. The commissioner of finance 25 may authorize banks or trust companies which are depositaries or finan- 26 cial agents of the city to receive and give a receipt for any tax 27 imposed under the named subchapters in such manner, at such times, and 28 under such conditions as the commissioner of finance may prescribe; and 29 the commissioner of finance shall prescribe the manner, times and condi- 30 tions under which the receipt of such tax by such banks and trust compa- 31 nies is to be treated as payment of such tax to the commissioner of 32 finance. 33 2. Notice and demand for tax. The commissioner of finance shall as 34 soon as practicable give notice to each taxpayer liable for any amount 35 of tax, addition to tax, penalty or interest, which has been assessed 36 but remains unpaid, stating the amount and demanding payment thereof. 37 Such notice shall be left at the principal office of the taxpayer in the 38 city or shall be sent by mail to such taxpayer's last known address. 39 Except where the commissioner of finance determines that collection 40 would be jeopardized by delay, if any tax is assessed prior to the last 41 date, including any date fixed by extension, prescribed for payment of 42 such tax, payment of such tax shall not be demanded until after such 43 date. 44 3. Issuance of warrant after notice and demand. If any corporation or 45 other person liable under the named subchapters for the payment of any 46 tax, addition to tax, penalty or interest neglects or refuses to pay the 47 same within ten days after notice and demand therefor is given to such 48 corporation or other person under subdivision two of this section, the 49 commissioner of finance may within six years after the date of such 50 assessment issue a warrant directed to the sheriff of any county of the 51 state, or to any officer or employee of the department of finance, 52 commanding him or her to levy upon and sell the real and personal prop- 53 erty of such corporation or other person for the payment of the amount 54 assessed, with the cost of executing the warrant, and to return such 55 warrant to the commissioner of finance, and pay to the commissioner the 56 money collected by virtue thereof within sixty days after the receipt ofS. 8474 695 1 the warrant. If the commissioner of finance finds that the collection 2 of the tax or other amount is in jeopardy, notice and demand for immedi- 3 ate payment of such tax may be made by the commissioner of finance and 4 upon failure or refusal to pay such tax or other amount the commissioner 5 of finance may issue a warrant without regard to the ten-day period 6 provided in this subdivision. 7 4. Copy of warrant to be filed and lien to be created. Any sheriff or 8 officer or employee who receives a warrant under subdivision three of 9 this section shall within five days thereafter file a copy with the 10 clerk of the appropriate county. The clerk shall thereupon enter in the 11 judgment docket, in the column for judgment debtors, the name of the 12 taxpayer mentioned in the warrant, and in appropriate columns the tax or 13 other amounts for which the warrant is issued and the date when such 14 copy is filed; and such amount shall thereupon be a binding lien upon 15 the real, personal and other property of the taxpayer. 16 5. Judgment. When a warrant has been filed with the county clerk the 17 commissioner of finance shall, on behalf of the city, be deemed to have 18 obtained judgment against the taxpayer for the tax or other amounts. 19 6. Execution. The sheriff or officer or employee shall thereupon 20 proceed upon the judgment in all respects, with like effect, and in the 21 same manner prescribed by law in respect to executions issued against 22 property upon judgments of a court of record, and a sheriff shall be 23 entitled to the same fees for his or her services in executing the 24 warrant, to be collected in the same manner. An officer or employee of 25 the department of finance may proceed in any county or counties of this 26 state and shall have all the powers of execution conferred by law upon 27 sheriffs, but shall be entitled to no fee or compensation in excess of 28 actual expenses paid in connection with the execution of the warrant. 29 7. Foreign corporations. Where a notice and demand under subdivision 30 two of this section shall have been given to a foreign corporation or 31 other person who is not then a resident, and it appears to the commis- 32 sioner of finance that it is not practicable to find in the state prop- 33 erty of such foreign corporation or nonresident person sufficient to pay 34 the entire balance of tax or other amount owing by such foreign corpo- 35 ration or nonresidential person, the commissioner of finance may, in 36 accordance with subdivision three of this section, issue a warrant 37 directed to an officer or employee of the department of finance, a copy 38 of which warrant shall be mailed by certified or registered mail to such 39 foreign corporation or nonresident person at its last known address, 40 subject to the rules of mailing provided in subdivision one of section 41 11-672 of this subchapter. Such warrant shall command the officer or 42 employee to proceed in Richmond county, and he or she shall, within five 43 days after receipt of the warrant, file the warrant and obtain a judg- 44 ment in accordance with this section. Thereupon the commissioner of 45 finance may authorize the institution of any action or proceeding to 46 collect or enforce the judgment in any place and by any procedure that a 47 civil judgment of the supreme court of the state of New York could be 48 collected or enforced. The commissioner of finance may also, in his or 49 her discretion, designate agents or retain counsel for the purpose of 50 collecting, outside the state, any unpaid taxes, additions to tax, 51 penalties or interest which have been assessed under this subchapter or 52 under any of the named subchapters, against foreign corporations or 53 other non-resident persons, may fix the compensation of such agents and 54 counsel to be paid out of money appropriated or otherwise lawfully 55 available for payment thereof, and may require of them bonds or other 56 security for the faithful performance of their duties, in such form andS. 8474 696 1 in such amount as the commissioner of finance shall deem proper and 2 sufficient. 3 8. Action by city for recovery of taxes. Action may be brought by the 4 corporation counsel of the city at the instance of the commissioner of 5 finance to recover the amount of any unpaid taxes, additions to tax, 6 penalties or interest which have been assessed under this subchapter or 7 under the named subchapters within six years prior to the date the 8 action is commenced. 9 9. Release of lien. The commissioner of finance, if he or she finds 10 that the interests of the city will not thereby be jeopardized, and upon 11 such conditions as it may require, may release any property from the 12 lien of any warrant filed under subdivision four or seven of this 13 section for unpaid taxes, additions to tax, penalties and interest filed 14 pursuant to this section, and such release or vacating of the warrant 15 may be recorded in the office of any recording officer in which such 16 warrant has been filed. The clerk shall thereupon cancel and discharge 17 as of the original date of docketing the vacated warrant. 18 10. Lien from due date of return. (a) In addition to any other lien 19 provided for in this section, each tax imposed by the named subchapters 20 shall become a lien on the date on which the return is required to be 21 filed, without regard to any extension of time for filing such return, 22 except that such tax shall become a lien not later than the date the 23 taxpayer ceases to be subject to the tax imposed by any of the named 24 subchapters, or to do business in this state in a corporate or organized 25 capacity. Each such tax shall be a lien and binding upon the real and 26 personal property of the taxpayer, or of a transferee liable to pay the 27 same, until the same is paid in full, except that no lien for any addi- 28 tional tax assessed pursuant to this subchapter shall be enforceable 29 against property which prior to the issuance to the taxpayer of a notice 30 of deficiency under section 11-672 of this subchapter had been trans- 31 ferred in good faith to a bona fide transferee for value. But the lien 32 of each such tax shall be subject to the lien of any mortgage indebt- 33 edness existing against real property previous to the time when the tax 34 became a lien and where such mortgage indebtedness has been incurred in 35 good faith and was not given, directly or indirectly, to any officer or 36 stockholder of the corporation owning such real property, whether as a 37 purchase money mortgage or otherwise, and shall also be subject to the 38 lien of local taxes and assessments, without regard to when the lien for 39 such taxes and assessments may have accrued. If the return is filed and 40 the tax shown on the report to be due is paid on or before the date on 41 which the report is required to be filed, without regard to any exten- 42 sions of time for filing such report, the lien shall not be enforceable 43 against the interest of any purchaser or mortgagee in property which is 44 thereafter, but prior to the issuance to the taxpayer of a notice of 45 deficiency under section 11-672 of this subchapter transferred to a bona 46 fide purchaser for value, or mortgaged where the mortgage indebtedness 47 is incurred in good faith and the mortgage is not given, directly or 48 indirectly, to any officer or stockholder of the corporation. In any 49 action to foreclose any such mortgage, or to foreclose the lien of local 50 taxes or assessments, to which the people of the state, or the city 51 shall have been made a party defendant by reason of the existence of a 52 lien for any such tax, or if no such tax was due or was a lien at the 53 time of the commencement of such action and the filing of the notice of 54 pendency thereof but such a tax becomes due or becomes a lien subsequent 55 to the time of the commencement of such action and the filing of the 56 notice of pendency thereof, such real property shall be sold andS. 8474 697 1 conveyed in such action free from any such tax lien, and any such tax 2 lien may become a lien on any surplus moneys which may result from such 3 sale, to be determined in the proceedings for the distribution of such 4 surplus moneys. Where title to real property passes from an individual, 5 or from a corporation owing no tax, to another corporation which is in 6 default for such tax, the lien herein provided shall not be enforceable 7 except as to any equity after the prior mortgage or purchase money mort- 8 gage encumbrance. 9 (b) The commissioner of finance may, upon application made to the 10 commissioner and the payment of a fee of twenty-five dollars, release 11 any real property from the lien under this subdivision, provided payment 12 be made to the commissioner of finance of such a sum as the commissioner 13 of finance shall deem adequate consideration for such release, or depos- 14 it be made of such security or such bond be filed as the commissioner of 15 finance shall deem proper to secure payment of any such tax. The appli- 16 cation for such release shall contain an accurate description of the 17 property to be released together with such information as the commis- 18 sioner of finance may require. Such release may be recorded in any 19 office in which conveyances of real estate are entitled to be recorded. 20 (c) All taxes, additions to tax, penalties and interest which have 21 become a lien under this subdivision shall cease to be a lien after the 22 expiration of twenty years from the date they become due and payable, 23 except that taxes, additions to tax, penalties and interest which have 24 become a lien under this subdivision (1) as to real estate in the hands 25 of persons who are owners thereof who would be purchasers in good faith 26 but for such taxes, additions to tax, penalties or interest and (2) as 27 to the lien on real estate of mortgages held by persons who would be 28 holders thereof in good faith but for such taxes, additions to tax, 29 penalties or interest, as against such purchasers or holders, shall 30 cease to be a lien after the expiration of ten years from the date they 31 become due and payable. The limitations herein provided for shall not 32 apply to any transfer from a corporation to a person or corporation with 33 intent to avoid payment of any taxes, or where with like intent the 34 transfer is made to a grantee corporation, or any subsequent grantee 35 corporation, controlled by such grantor or which has any community of 36 interest with it, either through stock ownership or otherwise. 37 § 11-684 Transferees. 1. General. The liability, at law or in equi- 38 ty, of a transferee of property of a taxpayer for any tax, additions to 39 tax, penalty or interest due the commissioner of finance under this 40 subchapter or under the named subchapters, shall be assessed, paid, and 41 collected in the same manner and subject to the same provisions and 42 limitations as in the case of the tax to which the liability relates, 43 except that the period of limitations for assessment against the trans- 44 feree shall be extended by one year for each successive transfer, in 45 order, from the original taxpayer to the transferee involved, but not by 46 more than three years in the aggregate. The term transferee includes, 47 in case of successive transfers, donee, heir, legatee, devisee, distri- 48 butee, and successor by merger, consolidation or other reorganization. 49 2. Exceptions. 50 (a) If before the expiration of the period of limitations for assess- 51 ment of liability of the transferee, a claim has been filed by the 52 commissioner of finance in any court against the original taxpayer or 53 the last preceding transferee based upon the liability of the original 54 taxpayer, then the period of limitation for assessment of liability of 55 the transferee shall in no event expire prior to one year after such 56 claim has been finally allowed, disallowed or otherwise disposed of.S. 8474 698 1 (b) If, before the expiration of the time prescribed in subdivision 2 one or paragraph (a) of this subdivision for the assessment of the 3 liability, the commissioner of finance and the transferee have both 4 consented in writing to its assessment after such time, the liability 5 may be assessed at any time prior to the expiration of the period agreed 6 upon. The period so agreed upon may be extended by subsequent agree- 7 ments in writing made before the expiration of the period previously 8 agreed upon. For the purpose of determining the period of limitation on 9 credit or refund to the transferee or overpayments of tax made by such 10 transferee or overpayments of tax made by the transferor as to which the 11 transferee is legally entitled to credit or refund, such agreement and 12 any extension thereof shall be deemed an agreement and extension thereof 13 referred to in subdivision two of section 11-678 of this subchapter. If 14 the agreement is executed after the expiration of the period of limita- 15 tion for assessment against the original taxpayer, then in applying the 16 limitations under subdivision two of section 11-678 of this subchapter 17 on the amount of the credit or refund, the period specified in subdivi- 18 sion one of section 11-678 of this subchapter shall be increased by the 19 period from the date of such expiration to the date of the agreement. 20 3. Period for assessment against certain transferors. For purposes of 21 this section, if any person is deceased or is a corporation which has 22 terminated its existence, the period of limitation for assessment 23 against such person or corporation shall be the period that would be in 24 effect had death or termination of existence not occurred. 25 4. Evidence. The commissioner of finance shall use his or her powers 26 to make available to the transferee evidence necessary to enable the 27 transferee to determine the liability of the original taxpayer and of 28 any preceding transferees, but without undue hardship to the original 29 taxpayer or preceding transferee. See subdivision five of section 30 11-680 of this subchapter for rule as to burden of proof. 31 § 11-685 Jeopardy assessments. 1. Authority for making. If the commis- 32 sioner of finance believes that the assessment or collection of a defi- 33 ciency will be jeopardized by delay, the commissioner shall, notwith- 34 standing the provisions of section 11-672 of this subchapter immediately 35 assess such deficiency, together with all interest, penalties and addi- 36 tions to tax provided for by law, and notice and demand shall be made by 37 the commissioner of finance for the payment thereof. 38 2. Notice of deficiency. If the jeopardy assessment is made before any 39 notice in respect of the tax to which the jeopardy assessment relates 40 has been mailed under section 11-672 of this subchapter, then the 41 commissioner of finance shall mail a notice under such section within 42 sixty days after the making of the assessment. 43 3. Amount assessable before decision of the tax appeals tribunal. The 44 jeopardy assessment may be made in respect of a deficiency greater or 45 less than that of which notice is mailed to the taxpayer and whether or 46 not the taxpayer has theretofore filed a petition with the tax appeals 47 tribunal. The commissioner of finance may, at any time before tax 48 appeals tribunal renders its decision, abate such assessment, or any 49 unpaid portion thereof, to the extent that the commissioner believes the 50 assessment to be excessive in amount. The tax appeals tribunal may in 51 its decision redetermine the entire amount of the deficiency and of all 52 amounts assessed at the same time in connection therewith. 53 4. Amounts assessable after decision of the tax appeals tribunal. If 54 the jeopardy assessment is made after the decision of the tax appeals 55 tribunal is rendered, such assessment may be made only in respect of the 56 deficiency determined by the tax appeals tribunal in its decision.S. 8474 699 1 5. Expiration of right to assess. A jeopardy assessment may not be 2 made after the decision of the tax appeals tribunal has become final or 3 after the taxpayer has made an application for review of the decision of 4 the tax appeals tribunal. 5 6. Collection of unpaid amounts. When a petition has been filed with 6 the tax appeals tribunal and when the amount which should have been 7 assessed has been determined by a decision of the tax appeals tribunal 8 which has become final, then any unpaid portion, the collection of which 9 has been stayed by bond, shall be collected as part of the tax upon 10 notice and demand from the commissioner of finance, and any remaining 11 portion of the assessment shall be abated. If the amount already 12 collected exceeds the amount determined as the amount which should have 13 been assessed, such excess shall be credited or refunded to the taxpayer 14 as provided in section 11-677 of this subchapter without the filing of 15 claim therefor. If the amount determined as the amount which should 16 have been assessed is greater than the amount actually assessed, then 17 the difference shall be assessed and shall be collected as part of the 18 tax upon notice and demand from the tax appeals tribunal. 19 7. Abatement if jeopardy does not exist. The commissioner of finance 20 may abate the jeopardy assessment if the commissioner finds that jeopar- 21 dy does not exist. Such abatement may not be made after a decision of 22 the tax appeals tribunal in respect of the deficiency has been rendered 23 or, if no petition is filed with the tax appeals tribunal, after the 24 expiration of the period for filing such petition. The period of limita- 25 tion on the making of assessments and levy or a proceeding for 26 collection, in respect of any deficiency, shall be determined as if the 27 jeopardy assessment so abated had not been made, except that the running 28 of such period shall in any event be suspended for the period from the 29 date of such jeopardy assessment until the expiration of the tenth day 30 after the day on which such jeopardy assessment is abated. 31 8. Bond to stay collection. The collection of the whole or any amount 32 of any jeopardy assessment may be stayed by filing with the commissioner 33 of finance, within such time as may be fixed by regulation, a bond in an 34 amount equal to the amount as to which the stay is desired, conditioned 35 upon the payment of the amount, together with interest thereon, the 36 collection of which is stayed at the time of which, but for the making 37 of the jeopardy assessment, such amount would be due. Upon the filing 38 of the bond the collection of so much of the amount assessed as is 39 covered by the bond shall be stayed. The taxpayer shall have the right 40 to waive such stay at any time in respect of the whole or any part of 41 the amount covered by the bond, and if as a result of such waiver any 42 part of the amount covered by the bond is paid, then the bond shall at 43 the request of the taxpayer, be proportionately reduced. If any portion 44 of the jeopardy assessment is abated, or if a notice of deficiency under 45 section 11-672 of this subchapter is mailed to the taxpayer in a lesser 46 amount, the bond shall, at the request of the taxpayer, be proportion- 47 ately reduced. 48 9. Petition to tax appeals tribunal. If the bond is given before the 49 taxpayer has filed its petition under section 11-680 of this subchapter, 50 the bond shall contain a further condition that if a petition is not 51 filed within the period provided in such section, then the amount, the 52 collection of which is stayed by the bond, will be paid on notice and 53 demand at any time after the expiration of such period, together with 54 interest thereon from the date of the jeopardy notice and demand to the 55 date of notice and demand under this subdivision. The bond shall be 56 conditioned upon the payment of so much of such assessment, collectionS. 8474 700 1 of which is stayed by the bond, as is not abated by a decision of the 2 tax appeals tribunal which has become final. If the tax appeals tribunal 3 determines that the amount assessed is greater than the amount which 4 should have been assessed, then the bond shall, at the request of the 5 taxpayer, be proportionately reduced when the decision of the tax 6 appeals tribunal is rendered. 7 10. Stay of sale of seized property pending tax appeals tribunal's 8 decision. Where a jeopardy assessment is made, the property seized for 9 the collection of the tax shall not be sold: 10 (a) if subdivision two of this section is applicable, prior to the 11 issuance of the notice of deficiency and the expiration of the time 12 provided in section 11-680 of this subchapter for filing a petition with 13 the tax appeals tribunal, and 14 (b) if a petition is filed with the tax appeals tribunal, whether 15 before or after the making of such jeopardy assessment, prior to the 16 expiration of the period during which the assessment of the deficiency 17 would be prohibited if subdivision one of this section were not applica- 18 ble. 19 Such property may be sold if the taxpayer consents to the sale, or if 20 the commissioner of finance determines that the expenses of conservation 21 and maintenance will greatly reduce the net proceeds, or if the property 22 is perishable. 23 11. Interest. For the purpose of subdivision one of section 11-675 of 24 this subchapter, the last date prescribed for payment shall be deter- 25 mined without regard to any notice and demand for payment issued under 26 this section prior to the last date otherwise prescribed for such 27 payment. 28 12. Early termination of taxable year. If the commissioner of finance 29 finds that a taxpayer designs quickly to remove its property from this 30 state, or to conceal its property therein, or to do any other act tend- 31 ing to prejudice or to render wholly or partly ineffectual proceedings 32 to collect the tax for the current or the preceding taxable year unless 33 such proceedings be brought without delay, the commissioner of finance 34 shall declare the taxable period for such taxpayer immediately termi- 35 nated, and shall cause notice of such finding and declaration to be 36 given the taxpayer, together with a demand for immediate payment of the 37 tax for the taxable period so declared terminated and of the tax for the 38 preceding taxable year so much of such tax as is unpaid, whether or not 39 the time otherwise allowed by law for filing return and paying the tax 40 has expired; and such taxes shall thereupon become immediately due and 41 payable. In any proceeding brought to enforce payment of taxes made due 42 and payable by virtue of the provisions of this subdivision, the finding 43 of the commissioner of finance made as herein provided, whether made 44 after notice to the taxpayer or not, shall be for all purposes presump- 45 tive evidence of jeopardy. 46 13. Reopening of taxable period. Notwithstanding the termination of 47 the taxable period of the taxpayer by the commissioner of finance, as 48 provided in subdivision twelve of this section, the commissioner of 49 finance may reopen such taxable period each time the taxpayer is found 50 by the commissioner of finance to have received income, within the 51 current taxable year, since the termination of such period. A taxable 52 period so terminated by the commissioner of finance may be reopened by 53 the taxpayer if it files with the commissioner of finance a true and 54 accurate return under any of the named subchapters for such taxable 55 period, together with such other information as the commissioner of 56 finance may by regulations prescribe.S. 8474 701 1 14. Furnishing of bond where taxable year is closed by the commission- 2 er of finance. Payment of taxes shall not be enforced by any proceedings 3 under the provisions of subdivision twelve of this section prior to the 4 expiration of the time otherwise allowed for paying such taxes if the 5 taxpayer furnishes, under regulations prescribed by the commissioner of 6 finance, a bond to insure the timely making of returns with respect to, 7 and payment of, such taxes or any taxes for prior years. 8 § 11-686 Criminal penalties; cross-reference. For criminal penalties, 9 see chapter forty of this title. 10 § 11-687 General powers of the commissioner of finance. 1. General. 11 The commissioner of finance shall administer and enforce the tax imposed 12 by the named subchapters and the commissioner is authorized to make such 13 rules and regulations, and to require such facts and information to be 14 reported, as the commissioner may deem necessary to enforce the 15 provisions of this subchapter and of the named subchapters; and the 16 commissioner may delegate the commissioner's powers and functions under 17 all subchapters of this chapter to one of the commissioner's deputies or 18 to any employee or employees of his or her department. 19 2. Examination of books and witnesses. The commissioner of finance, 20 for the purpose of ascertaining the correctness of any return, or for 21 the purpose of making an estimate of tax liability of any corporation, 22 shall have power to examine or to cause to have examined, by any agent 23 or representative designated by the commissioner for that purpose, any 24 books, papers, records or memoranda bearing upon the matters required to 25 be included in the return, and may require the attendance of the corpo- 26 ration rendering the return through any officer or employee of such 27 corporation, or the attendance of any other person having knowledge in 28 the premises, and may take testimony and require proof material for the 29 commissioner's information, with power to administer oaths to such 30 person or persons. 31 3. Abatement authority. The commissioner of finance, of the commis- 32 sioner's own motion, may abate any small unpaid balance of an assessment 33 of tax, or any liability in respect thereof, if the commissioner of 34 finance determines under uniform rules prescribed by the commissioner 35 that the administration and collection costs involved would not warrant 36 collection of the amount due. The commissioner may also abate, of his 37 or her own motion, the unpaid portion of the assessment of any tax or 38 any liability in respect thereof, which is excessive in amount, or is 39 assessed after the expiration of the period of limitation properly 40 applicable thereto, or is erroneously or illegally assessed. No claim 41 for abatement under this subdivision shall be filed by a taxpayer. 42 4. Special refund authority. Where no questions of fact or law are 43 involved and it appears from the records of the commissioner of finance 44 that any moneys have been erroneously or illegally collected from any 45 taxpayer or other person, or paid by such taxpayer or other person under 46 a mistake of facts, pursuant to the provisions of this subchapter or any 47 of the named subchapters, the commissioner of finance at anytime, with- 48 out regard to any period of limitations, shall have the power, upon 49 making a record of his or her reasons therefor in writing, to cause such 50 moneys so paid and being erroneously and illegally held to be refunded. 51 5. (a) Authority to set interest rates. The commissioner of finance 52 shall set the overpayment and underpayment rates of interest to be paid 53 pursuant to sections 11-606, 11-608, 11-645, 11-647, 11-656, 11-658, 54 11-675, 11-676, and 11-679 of this chapter, but if no such rate or rates 55 of interest are set, such overpayment rate shall be deemed to be set at 56 six percent per annum and such underpayment rate shall be deemed to beS. 8474 702 1 set at seven and one-half percent per annum. Such overpayment and 2 underpayment rates shall be the rates prescribed in paragraph (b) of 3 this subdivision but the underpayment rate shall not be less than seven 4 and one-half percent per annum. Any such rates set by the commissioner 5 of finance shall apply to taxes, or any portion thereof, which remain or 6 become due or overpaid on or after the date on which such rates become 7 effective and shall apply only with respect to interest computed or 8 computable for periods or portions of periods occurring in the period 9 during which such rates are in effect. 10 (b) General rule. (A) Overpayment rate. The overpayment rate set under 11 this subdivision shall be the sum of (i) the federal short-term rate as 12 provided under paragraph (c) of this subdivision, plus (ii) two percent- 13 age points. 14 (B) Underpayment rate. The underpayment rate set under this subdivi- 15 sion shall be the sum of (i) the federal short-term rate as provided 16 under paragraph (c) of this subdivision, plus (ii) seven percentage 17 points. 18 (c) Federal short-term rate. For purposes of this subdivision: 19 (A) The federal short-term rate for any month shall be the federal 20 short-term rate determined by the United States secretary of the treas- 21 ury during such month in accordance with subsection (d) of section 22 twelve hundred seventy-four of the internal revenue code for use in 23 connection with section six thousand six hundred twenty-one of the 24 internal revenue code. Any such rate shall be rounded to the nearest 25 full percent, or, if a multiple of one-half of one percent, such rate 26 shall be increased to the next highest full percent. 27 (B) Period during which rate applies. 28 (i) In general. Except as provided in clause (ii) of this subpara- 29 graph, the federal short-term rate for the first month in each calendar 30 quarter shall apply during the first calendar quarter beginning after 31 such month. 32 (ii) Special rule for the month of September, nineteen hundred eight- 33 y-nine. The federal short-term rate for the month of April, nineteen 34 hundred eighty-nine shall apply with respect to setting the overpayment 35 and underpayment rates for the month of September, nineteen hundred 36 eighty-nine. 37 (d) Publication of interest rates. The commissioner of finance shall 38 cause to be published in the city record, and give other appropriate 39 general notice of, the interest rates to be set under this subdivision 40 no later than twenty days preceding the first day of the calendar quar- 41 ter during which such interest rates apply. The setting and publication 42 of such interest rates shall not be included within paragraph (a) of 43 subdivision five of section one thousand forty-one of the city charter 44 relating to the definition of a rule. 45 (e) Cross-reference. For provisions relating to the power of the 46 commissioner of finance to abate small amounts of interest, see subdivi- 47 sion three of this section. 48 6. In computing the amount of any interest required to be paid under 49 this subchapter or any of the named subchapters by the commissioner of 50 finance or by the taxpayer, or any other amount determined by reference 51 to such amount of interest, such interest and such amount shall be 52 compounded daily. The preceding sentence shall not apply for purposes of 53 computing the amount of any addition to tax for failure to pay estimated 54 tax under subdivision three of section 11-676 of this subchapter. 55 § 11-688 Secrecy required of official; penalty for violation. 1. 56 Except in accordance with proper judicial order or as otherwise providedS. 8474 703 1 by law, it shall be unlawful for the commissioner of finance, the 2 department of finance of the city, any officer or employee of the 3 department of finance of the city, the tax appeals tribunal, any commis- 4 sioner or employee of such tribunal, any person who, pursuant to this 5 section, is permitted to inspect any report or return, or to whom any 6 information contained in any report or return is furnished, any person 7 engaged or retained by such department on an independent contract basis, 8 or any person who in any manner may acquire knowledge of the contents of 9 a report filed pursuant to this chapter, to divulge or make known in any 10 manner the amount of income or any particulars set forth or disclosed in 11 any report or return, under this chapter. The officers charged with the 12 custody of such reports and returns shall not be required to produce any 13 of them or evidence of anything contained in them in any action or 14 proceeding in any court, except on behalf of the city in an action or 15 proceeding involving the collection of a tax due under this chapter to 16 which the city is a party or a claimant, or on behalf of any party to 17 any action or proceeding under the provisions of this chapter when the 18 reports, returns or facts shown thereby are directly involved in such 19 action or proceeding, in any of which events the court may require the 20 production of, and may admit in evidence, so much of said reports or 21 returns or of facts shown thereby as are pertinent to the action or 22 proceeding, and no more. Nothing herein shall be construed to prohibit 23 the delivery to a taxpayer or its duly authorized representative of a 24 copy of any report filed by it, nor to prohibit the publication of 25 statistics so classified as to prevent the identification of particular 26 reports or returns and the items thereof, or the inspection by the 27 corporation counsel or other legal representatives of the city of the 28 report or return of any taxpayer which shall bring action to set aside 29 or review the tax based thereon, or against which an action or proceed- 30 ing under this chapter or under any local law of the city imposed as 31 authorized by the act authorizing the adoption of this chapter has been 32 recommended by the commissioner of finance or the corporation counsel or 33 has been instituted, or the inspection of the reports or returns of any 34 taxpayer by the duly designated officers or employees of the city for 35 purposes of an audit under this chapter or an audit authorized by the 36 act authorizing the adoption of this chapter; and nothing in this 37 subchapter or chapter eleven of this title shall be construed to prohib- 38 it the publication of the issuer's allocation percentage, as defined in 39 subparagraph one of paragraph (b) of subdivision three of section 11-604 40 of this chapter, of any corporation which may be required to be allo- 41 cated within the city for purposes of the tax imposed by any of the 42 named subchapters or chapter eleven of this title. 43 2. (a) Any officer or employee of the state or city who willfully 44 violates the provisions of subdivision one of this section shall be 45 dismissed from office and be incapable of holding any public office in 46 the city or this state for a period of five years thereafter. 47 (b) Cross-reference: For criminal penalties, see chapter forty of this 48 title. 49 3. Notwithstanding any provisions of this section, the commissioner of 50 finance may permit the secretary of the treasury of the United States or 51 his or her delegates, or the proper officer of this or any other state 52 charged with tax administration, or the authorized representative of 53 either such officer, to inspect the returns or reports filed under any 54 of the named subchapters, or may furnish to such officer or his or her 55 authorized representative an abstract of any such return or report or 56 supply information concerning an item contained in any such return orS. 8474 704 1 report, or supply him or her with information concerning an item 2 contained in any such return or report, or disclosed by an investigation 3 of tax liability under any of the named subchapters, but such permission 4 shall be granted or such information furnished to such officer or his or 5 her representative only if the laws of the United States or of such 6 state, as the case may be, grant substantially similar privileges to the 7 commissioner of finance and such information is to be used for tax 8 purposes only; and provided further the commissioner of finance may 9 furnish to the secretary of the treasury of the United States or his or 10 her delegates or to the tax commission of the state of New York or its 11 delegates such returns or reports filed under any of the named subchap- 12 ters and other tax information, as he or she may consider proper, for 13 use in court actions or proceedings under the internal revenue code or 14 the tax law of the state of New York, whether civil or criminal, where a 15 written request therefor has been made to the commissioner of finance by 16 the secretary of the treasury or by such tax commission or by their 17 delegates, provided the laws of the United States or the laws of the 18 state of New York grant substantially similar powers to the secretary of 19 the treasury or his or her delegates or to such tax commission or its 20 delegates. Where the commissioner of finance has so authorized use of 21 returns, reports or other information in such actions or proceedings, 22 officers and employees of the department of finance may testify in such 23 actions or proceedings in respect to such returns, reports of other 24 information. 25 4. Notwithstanding the provisions of subdivision one of this section, 26 the commissioner of finance, in his or her discretion, may require or 27 permit any or all persons liable for any tax imposed by this chapter to 28 make payments on account of estimated tax and payment of any tax, penal- 29 ty or interest imposed by this chapter to banks, banking houses or trust 30 companies designated by the commissioner of finance and to file declara- 31 tions of estimated tax, applications for automatic extensions of time to 32 file reports, and reports with such banks, banking houses or trust 33 companies as agents of the commissioner of finance, in lieu of making 34 any such payment directly to the commissioner of finance. However, the 35 commissioner of finance shall designate only such banks, banking houses 36 or trust companies as are depositories or financial agents of the city. 37 5. This section shall be deemed a state statute for purposes of para- 38 graph (a) of subdivision two of section eighty-seven of the public offi- 39 cers law. 40 6. Notwithstanding anything in subdivision one of this section to the 41 contrary, if a taxpayer has petitioned the tax appeals tribunal for 42 administrative review as provided in section one hundred seventy of the 43 charter of the preceding municipality as it existed January first, nine- 44 teen hundred ninety-four, the commissioner of finance shall be author- 45 ized to present to the tribunal any report or return of such taxpayer, 46 or any information contained therein or relating thereto, which may be 47 material or relevant to the proceeding before the tribunal. The tax 48 appeals tribunal shall be authorized to publish a copy or a summary of 49 any decision rendered pursuant to section one hundred seventy-one of the 50 charter of the preceding municipality as it existed January first, nine- 51 teen hundred ninety-four. 52 7. Notwithstanding anything in subdivision one of this section, the 53 commissioner of finance may disclose to a taxpayer or a taxpayer's 54 related member, as defined in paragraph (n) of subdivision eight of 55 section 11-602, paragraph (n) of subdivision eight of section 11-652 or 56 paragraph one of subdivision (q) of section 11-641 of this chapter,S. 8474 705 1 information relating to any royalty paid, incurred or received by such 2 taxpayer or related member to or from the other, including the treatment 3 of such payments by the taxpayer or the related member in any report or 4 return transmitted to the commissioner of finance under this title. 5 § 11-689 Disposition of revenues. All revenues resulting from the 6 imposition of the taxes under this chapter shall be paid into the treas- 7 ury of the city and shall be credited to and deposited in the general 8 fund of the city, but no part of such revenues may be expended unless 9 appropriated in the annual budget of the city. 10 § 11-690 Inconsistencies with other laws. If any provision of this 11 chapter is inconsistent with, in conflict with, or contrary to any other 12 provision of law, such provision of this chapter shall prevail over such 13 other provision and such other provision shall be deemed to have been 14 amended, superseded or repealed to the extent of such inconsistency, 15 conflict or contrariety. 16 CHAPTER 7 17 COMMERCIAL RENT OR OCCUPANCY TAX 18 § 11-701 Definitions. When used in this chapter the following terms 19 shall mean or include: 20 1. "Person." An individual, partnership, society, association, joint 21 stock company, corporation, estate, receiver, assignee, trustee or any 22 other person acting in a fiduciary capacity, whether appointed by a 23 court or otherwise, and any combination of individuals. 24 2. "Landlord." A person who grants the right to use or occupy premises 25 to any lessee, sublessee, licensee or concessionaire, whether or not 26 such person is the owner of the premises. 27 3. "Tenant." A person paying or required to pay rent for premises as a 28 lessee, sublessee, licensee or concessionaire. 29 4. "Premises." Any real property or part thereof, and any structure 30 thereon or space therein. 31 5. "Taxable premises." Any premises in the city occupied, used or 32 intended to be occupied or used for the purpose of carrying on or exer- 33 cising any trade, business, profession, vocation or commercial activity, 34 including any premises so used even though it is used solely for the 35 purpose of renting, or granting the right to occupy or use, the same 36 premises in whole or in part to tenants. 37 6. "Rent." The consideration paid or required to be paid by a tenant 38 for the use or occupancy of premises, valued in money, whether received 39 in money or otherwise, including all credits and property or services of 40 any kind and including any payment required to be made by a tenant on 41 behalf of his or her landlord for real estate taxes, water rents or 42 charges, sewer rents or any other expenses, including insurance, normal- 43 ly payable by a landlord who owns the realty other than expenses for the 44 improvement, repair or maintenance of the tenant's premises. 45 7. "Base rent." The rent paid for each taxable premises by a tenant to 46 his or her landlord for a period, less the amounts received by or due 47 such tenant for the same period from any tenant of any part of such 48 premises: 49 (i) as rent for premises which constitute taxable premises of such 50 tenant except where such tenant is exempt from tax thereon pursuant to 51 subdivision b or paragraph six of subdivision c of section 11-704 of 52 this chapter; provided, however, that for tax periods beginning on and 53 after June first, nineteen hundred eighty-five, rent received or due 54 from a tenant exempt from tax thereon pursuant to paragraph two of 55 subdivision b of section 11-704 of this chapter, as such paragraph twoS. 8474 706 1 was in effect immediately prior to its amendment by local law number 2 fifty-seven for the year nineteen hundred ninety-three, may be deducted 3 if such tenant occupies or uses the premises pursuant to a written 4 agreement made prior to June first, nineteen hundred eighty-four, the 5 terms and conditions of which have not been changed or amended; and 6 provided, further, that for tax periods beginning on and after June 7 first, nineteen hundred eighty-five, with respect to a tenant exempt 8 from tax pursuant to paragraph two of subdivision b of section 11-704 of 9 this chapter, as such paragraph two was in effect immediately prior to 10 its amendment by local law number fifty-seven for the year nineteen 11 hundred ninety-three, because of the reduction in base rent provided for 12 in subdivision h of section 11-704 of this chapter, rent received or due 13 from such tenant may be deducted if such tenant occupies or uses the 14 premises pursuant to a written agreement made prior to June first, nine- 15 teen hundred eighty-five, the terms and conditions of which have not 16 been changed or amended; and provided, further, that for tax periods 17 beginning on and after June first, nineteen hundred ninety-four, with 18 respect to a tenant exempt from tax pursuant to paragraph two of subdi- 19 vision b of section 11-704 of this chapter as a result of the amendment 20 of such paragraph two by local law number fifty-seven for the year nine- 21 teen hundred ninety-three, whether or not such exemption is due to the 22 reduction in base rent provided for in subdivision h of section 11-704 23 of this chapter, rent received or due from such tenant may be deducted 24 if such tenant occupies or uses the premises pursuant to a written 25 agreement made prior to June first, nineteen hundred ninety-three, the 26 terms and conditions of which have not been changed or amended; and 27 provided, further, that for tax periods beginning on and after July 28 twenty-ninth, nineteen hundred eighty-seven, with respect to a tenant 29 exempt from tax pursuant to paragraph two of subdivision b of section 30 11-704 of this chapter because of the reduction in base rent provided 31 for in subdivision f of section 11-704 of this chapter, rent received or 32 due from such tenant may be deducted; and provided, further, that, 33 notwithstanding anything in this paragraph to the contrary, for tax 34 periods beginning on and after June first, nineteen hundred ninety-five, 35 with respect to a tenant exempt from tax pursuant to paragraph two of 36 subdivision b of section 11-704 of this chapter, rents received or due 37 from such tenant may be deducted; 38 (ii) as rent for premises which do not constitute taxable premises and 39 which are used by such tenant as lodging or residential premises, 40 including such residential premises in hotels, apartment hotels or lodg- 41 ing houses as defined in former title V of chapter forty-six of the code 42 of the preceding municipality; 43 (iii) who is exempt from tax under subdivision a of section 11-704 of 44 this chapter; 45 (iv) as rent for premises which do not constitute taxable premises 46 where such rent is, or to the extent that such rent is, deductible from 47 the base rent of such tenant by reason of paragraph five of subdivision 48 c of section 11-704 of this chapter; and 49 (v) as rent for premises which do not constitute taxable premises, 50 pursuant to a common law relationship of landlord and tenant, notwith- 51 standing the definition given to those terms by paragraphs two and three 52 of this section, except where it is received as rent, whether or not 53 such landlord-tenant relationship exists, for premises which are occu- 54 pied as or constitute: 55 (a) a locker, safe deposit box or beach cabana;S. 8474 707 1 (b) storage space in part of a warehouse or in part of any other 2 structure or area in which goods are stored; 3 (c) garage space or parking space in any part of a garage, of a park- 4 ing lot or of a parking area where the entire garage, entire parking lot 5 or entire parking area accommodates more than two motor vehicles; 6 (d) an occupancy of a type which customarily has not been the subject 7 of such a common law relationship of landlord and tenant. Nothing 8 contained in this chapter shall be construed to permit a tenant to 9 deduct the same rent from his or her base rent more than once. 10 8. "Premises used for railroad transportation purposes." The portion 11 of any premises of any person actually operating a railroad, used by 12 such person for normal or necessary railroad transportation purposes. 13 The words normal or necessary railroad transportation purposes, as used 14 in this definition, shall not include any activities which are normally 15 carried on by persons not engaged in furnishing railroad transportation 16 service such as the operation of retail stores, barber shops, restau- 17 rants, theatres, hotels, and newsstands; nor shall such words include 18 any activities which are not deemed transportation purposes under 19 sections four hundred eighty-nine-b and four hundred eighty-nine-m of 20 the real property tax law. 21 9. "Premises used for air transportation purposes." The portion of any 22 premises, located within an airport or within an air transportation 23 terminal shared by more than one air line, of any person actually oper- 24 ating an air line as a common carrier, used by such person for normal or 25 necessary air transportation purposes. The words normal or necessary air 26 transportation purposes, as used in this definition, shall not include 27 any activities which are normally carried on by persons not engaged in 28 furnishing air transportation service such as the operation of retail 29 stores, barber shops, restaurants, theatres, hotels and newsstands. 30 10. "Return." Any return filed or required to be filed as herein 31 provided other than an information return. 32 11. "Tax period." The period for which any return is required to be 33 filed under this chapter. 34 12. "Tax year." June first of any calendar year through May thirty- 35 first of the following calendar year. 36 13. "Day." A calendar day or any part thereof. 37 14. "City." The city of Staten Island. 38 15. "Commissioner of finance." The commissioner of finance of the 39 city. 40 16. "Comptroller." The comptroller of the city. 41 17. "Dramatic or musical arts performance." A performance or repe- 42 tition thereof in a theatre, opera house or concert hall of a live 43 dramatic performance, whether or not musical in part. The performance 44 encompassed by this definition shall include so-called legitimate thea- 45 tre plays, musical comedies and operettas. They shall not include 46 circuses, ice skating shows or aqua shows; they shall not include 47 performances of any kind in a roof garden, cabaret or other similar 48 place; and they shall not include radio or television performances, 49 whether or not such performances are prerecorded for later broadcast. 50 18. "Premises used for omnibus transportation purposes." The portion 51 of any premises located within a passenger terminal of any person actu- 52 ally operating an omnibus line or route as a common carrier, used by 53 such person for normal or necessary omnibus line or route transportation 54 purposes. The words normal or necessary omnibus line or route transpor- 55 tation purposes, as used in this definition, shall not include any 56 activities, which are normally carried on by persons not engaged inS. 8474 708 1 furnishing omnibus line or route transportation services such as the 2 operation of retail stores, barber shops, restaurants, theatres, hotels 3 and newsstands. 4 19. "Tax appeals tribunal." The tax appeals tribunal established by 5 section one hundred sixty-eight of the charter of the preceding munici- 6 pality as it existed January first, nineteen hundred ninety-four. 7 20. "Premises used for retail sales purposes." Premises primarily used 8 for the selling or otherwise disposing or furnishing of tangible goods 9 directly to the ultimate user or consumer. 10 § 11-702 Imposition of tax. a. (1) For each tax year commencing on 11 or after June first, nineteen hundred sixty-three and ending on or 12 before May thirty-first, nineteen hundred seventy, every tenant shall 13 pay a tax of two and one-half per centum of his or her base rent for 14 such tax year where his or her base rent is not in excess of twenty-five 15 hundred dollars per year or where his or her base rent is for a period 16 of less than one year and would not exceed twenty-five hundred dollars 17 for a year if it were paid on an equivalent basis for an entire year or 18 a tax of five per centum of his or her base rent for such tax year where 19 his or her base rent is in excess of twenty-five hundred dollars per 20 year or where his or her base rent is for a period of less than one year 21 and would exceed twenty-five hundred dollars a year if it were paid on 22 an equivalent basis for an entire year. 23 (2) For each tax year commencing on or after, June first, nineteen 24 hundred seventy, every tenant shall pay a tax at the rates shown in the 25 following table: 26 When the annual rent is: But not more than: The rate shall be: 27 0..................... $2,499 2 1/2% of the rent 28 $ 2,500 or over....... $4,999 5% of the rent 29 $ 5,000 or over....... $7,999 6 1/4% of the rent 30 $ 8,000 or over....... $10,999 7% of the rent 31 $11,000 and over...... 7 1/2% of the rent 32 For tax years embraced within the period beginning after May thirty- 33 first, nineteen hundred seventy-seven and ending May thirty-first, nine- 34 teen hundred eighty, the tax shall be imposed at rates equal to ninety 35 percent of the rates shown in such table. 36 For tax years beginning after May thirty-first, nineteen hundred 37 eighty and ending May thirty-first, nineteen hundred eighty-one, the tax 38 shall be imposed at rates equal to eighty-five percent of the rates 39 shown in such table. 40 For tax years beginning after May thirty-first, nineteen hundred 41 eighty-one, the tax shall be imposed at rates equal to eighty percent of 42 the rates shown in such table. 43 Where the rent is for a period of less than one year, the rate shall 44 be determined by assuming that the rent is on an equivalent basis for 45 the entire year. 46 b. Nothing contained in this chapter shall be deemed to require 47 payment of a double or multiple tax pursuant to this chapter on any part 48 of any taxable premises. 49 c. Where a tenant pays an undivided rent for premises used both for 50 residential purposes and as taxable premises, the tax shall be applica- 51 ble to so much of the rent as is ascribable to the portion of such prem- 52 ises used as taxable premises. Where, however, the rent ascribable to 53 so much of such premises as is used as taxable premises does not exceed 54 fifty dollars a month, such rent shall be excluded from such tenant's 55 base rent. Nothing contained in this subdivision shall be construed as 56 indicating an intent to exclude any base rent from the tax imposed byS. 8474 709 1 this chapter merely because it is paid as part of an undivided rent for 2 premises which are only partially used as taxable premises. 3 d. The tax imposed by this chapter shall be in addition to any and 4 all other taxes including the public housing tax imposed by chapter ten 5 of this title. 6 e. Nothing contained in this section shall be construed as permitting 7 base rent of a tenant for one taxable premises to be reduced by deduct- 8 ing rents received by him or her for another taxable premises of which 9 he or she is also a tenant. 10 § 11-703 Presumptions and burden of proof. a. For the purpose of 11 the proper administration of this chapter and to prevent evasion of the 12 tax hereby imposed it shall be presumed that all premises are taxable 13 premises and that all rent paid or required to be paid by a tenant is 14 base rent until the contrary is established, and the burden of proving 15 that such presumptive base rent or any portion thereof is not included 16 in the measure of the tax imposed by this chapter shall be on the 17 tenant. 18 b. Where a tenant uses premises both for residential purposes and as 19 taxable premises and the tenant pays an undivided rent for the premises 20 so used, it shall be conclusively presumed against such tenant that the 21 rent ascribable to so much of such premises as is used as taxable prem- 22 ises shall be the amount which such tenant deducts as rent for such 23 premises in determining the tenant's federal income tax, as reduced by 24 any disallowance of such deduction which is not being contested, which 25 is fairly attributable to the tax period or tax year. 26 § 11-704 Exemptions and deductions from base rent. a. The following 27 shall be exempt from the payment of the tax imposed by this chapter: 28 1. The state of New York, or any public corporation, including a 29 public corporation created pursuant to agreement or compact with another 30 state or the Dominion of Canada, improvement district or other political 31 subdivision of the state; 32 2. The United States of America, insofar as it is immune from taxa- 33 tion; 34 3. The United Nations or other world-wide international organizations 35 of which the United States of America is a member; 36 4. Any corporation, or association, or trust, or community chest, fund 37 or foundation, organized and operated exclusively for religious, chari- 38 table, or educational purposes, or for the prevention of cruelty to 39 children or animals, and no part of the net earnings of which inures to 40 the benefit of any private shareholder or individual and no substantial 41 part of the activities of which is carrying on propaganda, or otherwise 42 attempting to influence legislation; provided, however, that nothing in 43 this paragraph shall include an organization operated for the primary 44 purpose of carrying on a trade or business for profit, whether or not 45 all of its profits are payable to one or more organizations described in 46 this paragraph; 47 5. Any tenant who would be subject to taxes under this chapter aggre- 48 gating not more than one dollar for a tax year with respect to all taxa- 49 ble premises used by the tenant; and 50 6. Any tenant located in the "World Trade Center Area," as defined as 51 follows: the area in the borough of Manhattan bounded by Church Street 52 on the east starting at the intersection of Liberty Street and Church 53 Street; running northerly along the center line of Church Street to the 54 intersection of Church Street and Vesey Street; running westerly along 55 the center line of Vesey Street to the intersection of Vesey Street and 56 West Broadway; running northerly along the center line of West BroadwayS. 8474 710 1 to the intersection of West Broadway and Barclay Street; running wester- 2 ly along the center line of Barclay Street to the intersection of 3 Barclay Street and Washington Street; running southerly along the center 4 line of Washington Street to the intersection of Washington Street and 5 Vesey Street; running westerly along the center line of Vesey Street to 6 the intersection of Vesey Street and West Street; running southerly 7 along the center line of West Street to the intersection of West Street 8 and Liberty Street; running easterly along the center line of Liberty 9 Street to the intersection of Liberty Street and Washington Street; 10 running southerly along the center line of Washington Street to the 11 intersection of Washington Street and Albany Street; running easterly 12 along the center line of Albany Street to the intersection of Albany 13 Street and Greenwich Street; running northerly along the center line of 14 Greenwich Street to Liberty Street; and running easterly along the 15 center line of Liberty Street to the intersection of Liberty Street and 16 Church Street. 17 b. 1. A tenant who uses premises for no more than fourteen days in a 18 tax year whether or not consecutive, where his or her agreement with his 19 or her landlord does not require him or her to pay rent for a longer 20 period shall be exempt from the payment of the tax imposed by this chap- 21 ter in respect to the rent paid by him or her for such premises. 22 2. A tenant whose base rent, (i) for tax years beginning on or after 23 June first, nineteen hundred eighty-one and ending on or before May 24 thirty-first, nineteen hundred eighty-four, is not in excess of four 25 thousand nine hundred ninety-nine dollars per year, (ii) for the tax 26 year beginning June first, nineteen hundred eighty-four and ending May 27 thirty-first, nineteen hundred eighty-five, is not in excess of seven 28 thousand nine hundred ninety-nine dollars per year, (iii) for tax years 29 beginning on or after June first, nineteen hundred eighty-five and 30 ending on or before May thirty-first, nineteen hundred ninety-four, is 31 not in excess of ten thousand nine hundred ninety-nine dollars per year, 32 (iv) for the tax year beginning June first, nineteen hundred ninety-four 33 and ending May thirty-first, nineteen hundred ninety-five, is not in 34 excess of twenty thousand nine hundred ninety-nine dollars per year, (v) 35 for the tax year beginning June first, nineteen hundred ninety-five and 36 ending May thirty-first, nineteen hundred ninety-six, is not in excess 37 of thirty thousand nine hundred ninety-nine dollars per year, (vi) for 38 the tax year beginning June first, nineteen hundred ninety-six and 39 ending May thirty-first, nineteen hundred ninety-seven, is not in excess 40 of thirty-nine thousand nine hundred ninety-nine dollars per year, (vii) 41 for tax years beginning on or after June first, nineteen hundred nine- 42 ty-seven and ending on or before May thirty-first, two thousand, is not 43 in excess of ninety-nine thousand nine hundred ninety-nine dollars per 44 year, calculated without regard to any reduction in base rent allowed by 45 paragraph two of subdivision h of this section, (viii) for the period 46 beginning June first, two thousand and ending November thirtieth, two 47 thousand, is not in excess of ninety-nine thousand nine hundred ninety- 48 nine dollars per year, calculated without regard to any reduction in 49 base rent allowed by paragraph two of subdivision h of this section, 50 (ix) for the period beginning December first, two thousand and ending 51 May thirty-first, two thousand one, is not in excess of one hundred 52 forty-nine thousand nine hundred ninety-nine dollars per year, calcu- 53 lated without regard to any reduction in base rent allowed by paragraph 54 two of subdivision h of this section, and (x) for tax years beginning on 55 or after June first, two thousand one, is not in excess of two hundred 56 forty-nine thousand nine hundred ninety-nine dollars per year, calcu-S. 8474 711 1 lated without regard to any reduction in base rent allowed by paragraph 2 two of subdivision h of this section, shall be exempt from the payment 3 of the tax imposed by this chapter with respect to such rent, provided, 4 however, that where the base rent of such tenant is for a period of less 5 than one year, such base rent shall, for purposes of this paragraph, be 6 determined as if it had been on an equivalent basis for the entire year; 7 and provided, further, that for purposes of subparagraphs (viii) and 8 (ix) of this paragraph, base rent for the period specified in each of 9 such subparagraphs shall be separately annualized as if it had been on 10 an equivalent basis for an entire year, irrespective of the actual base 11 rent for the tax year including the period specified in such subpara- 12 graph. Provided, however, (xi) a tenant whose base rent for the tax year 13 beginning June first, nineteen hundred eighty-four and ending May thir- 14 ty-first, nineteen hundred eighty-five, is at least eight thousand 15 dollars per year, but not in excess of ten thousand nine hundred nine- 16 ty-nine dollars per year, shall be exempt from the payment of the tax 17 imposed by this chapter with respect to such rent for the period begin- 18 ning December first, nineteen hundred eighty-four and ending May thir- 19 ty-first, nineteen hundred eighty-five, and (xii) a tenant whose base 20 rent for the tax year beginning June first, nineteen hundred ninety-five 21 and ending May thirty-first, nineteen hundred ninety-six, is at least 22 thirty-one thousand dollars per year, but not in excess of thirty-nine 23 thousand nine hundred ninety-nine dollars per year, shall be exempt from 24 the payment of the tax imposed by this chapter with respect to such rent 25 for the period beginning September first, nineteen hundred ninety-five 26 and ending May thirty-first, nineteen hundred ninety-six. 27 c. Base rent shall be reduced by the amount of the taxpayer's rent 28 for, or reasonably ascribable to, the taxpayer's own use of the prem- 29 ises: 30 1. As premises used for railroad transportation purposes. 31 2. As premises used for air transportation purposes. 32 3. As piers insofar as such premises are used in interstate or foreign 33 commerce. 34 4. Which are located in, upon, above or under any public street, high- 35 way or other public place, and which are defined as special franchise 36 property in the real property tax law. 37 5. Which are taxed pursuant to subchapter one of chapter twenty of 38 this title to the extent that such premises are subject to, and during 39 the period that they are subject to, such tax. 40 6. Which are taxed pursuant to subdivision b or c of section 11-1005 41 of this title. 42 7. Which are advertising signs, advertising space, vending machines or 43 newsstands within or attached to stations, platforms, stairways, 44 entranceways, passageways, mezzanines or tracks of a rapid transit 45 subway or elevated railroad operated by the New York city transit 46 authority when the rent of the tenant or of the tenant's landlord is 47 payable to such authority. 48 8. As premises used for omnibus transportation purposes. 49 9. As premises used for retail sales purposes where such premises are 50 located in the area in the borough of Manhattan bounded by Murray Street 51 on the north starting at the intersection of West Street and Murray 52 Street; running easterly along the center line of Murray Street, 53 connecting through City Hall Park with the center line of Frankfort 54 Street and running easterly along the center lines of Frankfort and 55 Dover Streets to the intersection of Dover Street and South Street; 56 running southerly along the center line of South Street to Peter MinuitS. 8474 712 1 Plaza; connecting through Peter Minuit Plaza to the center line of State 2 Street and running northwesterly along the center line of State Street 3 to the intersection of State Street and Battery Place; running westerly 4 along the center line of Battery Place to the intersection of Battery 5 Place and West Street; and running northerly along the center line of 6 West Street to the intersection of West Street and Murray Street. Any 7 tax lot which is partly located inside such area shall be deemed to be 8 entirely located inside such area. 9 d. A tenant who uses taxable premises for renting to others for resi- 10 dential purposes to the extent of seventy-five per centum or more of the 11 rentable floor space shall be exempt from the tax imposed by this chap- 12 ter in respect to the rent paid for such premises from the time that 13 construction thereof commences, provided, however, that this paragraph 14 shall not be applicable to hotels, apartment hotels or lodging houses as 15 defined in former title V of chapter forty-six of the code of the 16 preceding municipality. 17 e. (1) A tenant who uses taxable premises for a dramatic or musical 18 arts performance for less than four weeks where there is no indication 19 prior to or at the time that such performance commences that the 20 performance is intended to continue for less than four weeks shall be 21 exempt from the tax imposed by this chapter with respect to the rent 22 paid for such taxable premises. 23 (2) (i) Notwithstanding any other provision of law to the contrary, a 24 tenant who uses taxable premises for the production and performance of a 25 theatrical work shall be exempt from the tax imposed by this chapter 26 with respect to the rent paid for such taxable premises for a period not 27 exceeding fifty-two weeks beginning on the date that the production of 28 such theatrical work commences, provided, however, that this subpara- 29 graph shall not apply to any theatrical work the production of which 30 commenced prior to June first, nineteen hundred ninety-five. 31 (ii) For purposes of this paragraph, the term "theatrical work" shall 32 mean a performance or repetition thereof in a theater of a live dramatic 33 performance, whether or not musical in part, that contains sustained 34 plots or recognizable thematic material, including so-called legitimate 35 theater plays or musicals, dramas, melodramas, comedies, compilations, 36 farces or reviews, provided that such performance is intended to be open 37 to the public for at least two weeks. The term "theatrical work" shall 38 not include performances of any kind in a roof garden, cabaret or simi- 39 lar place, circuses, ice skating shows, aqua shows, variety shows, magic 40 shows, animal acts, concerts, industrial shows or similar performances, 41 or radio or television performances, whether or not such performances 42 are pre-recorded for later broadcast. 43 f. 1. A tenant who is an eligible business and has obtained the 44 certifications required by paragraph four of this subdivision shall be 45 permitted to reduce his or her base rent for particular premises to 46 which he or she has relocated by an amount determined by multiplying 47 such base rent by a fraction the numerator of which is the number of 48 eligible aggregate employment shares maintained by such tenant with 49 respect to such premises in the tax year for which such tenant claims 50 the reduction and the denominator of which is a number equal to the 51 number of aggregate employment shares maintained by such tenant in such 52 premises in the tax year for which such tenant claims the reduction 53 allowed by this subdivision, provided, however, that such denominator 54 shall not exceed the highest number of aggregate employment shares main- 55 tained by such tenant in such premises in any of the tax years described 56 below which commence prior to or concurrently with the tax year forS. 8474 713 1 which such tenant claims the reduction allowed by this subdivision: (i) 2 the tax year during which such tenant relocates to such particular prem- 3 ises; and (ii) each of the three tax years immediately succeeding the 4 tax year during which such tenant relocates to such premises. Base rent 5 for a particular premises may be reduced as provided in this subdivision 6 for the tax year during which the tenant relocates to such premises and 7 for any of the twelve immediately succeeding tax years during which the 8 tenant maintains eligible aggregate employment shares with respect to 9 such premises, provided, however, that there shall be no such reduction 10 with respect to base rent for any part of the tax year preceding the 11 date of relocation to such premises, and provided, further, however, in 12 the twelfth succeeding tax year there shall be a reduction only with 13 respect to base rent for the period, commencing on the first day of such 14 tax year, equal to the difference between the total number of days in 15 the tax year of relocation and the number of days in such tax year of 16 relocation commencing with and following the date of relocation, and 17 provided, further, that there shall be no such reduction with respect to 18 premises used for retail activity or hotel services. 19 2. (i) For purposes of this subdivision, the terms "eligible area," 20 "eligible aggregate employment shares," "relocate," "retail activity" 21 and "hotel services" shall have the meanings ascribed by section 22-621 22 of the code of the preceding municipality, provided that whenever the 23 term "taxable year " appears in such section 22-621, such term shall be 24 read as "tax year," as the term "tax year" is defined in subdivision 25 twelve of section 11-701 of this chapter except when the taxable year 26 referred to is the taxable year immediately preceding the taxable year 27 during which such tenant relocates. 28 (ii) For purposes of this subdivision, the term "eligible business" 29 shall have the meaning ascribed by section 22-621 of the code of the 30 preceding municipality, provided that such term shall in addition 31 include any person subject to a tax imposed under subchapter four of 32 chapter six of this title and any person who is an insurance corporation 33 as defined in section one thousand five hundred of the tax law, which: 34 (A) has been conducting substantial business operations at one or more 35 business locations outside the eligible area for the twenty-four consec- 36 utive months immediately preceding the taxable year during which such 37 eligible business relocates; and (B) on or after May twenty-seventh, 38 nineteen hundred eighty-seven relocates all or part of such business 39 operations; and (C) on or after May twenty-seventh, nineteen hundred 40 eighty-seven first enters into a lease for the premises to which it 41 relocates or a parcel on which will be constructed such premises. 42 3. The reduction allowed by this subdivision may be claimed on an 43 estimated basis on the returns filed for the tax periods ending on the 44 last days of August, November and February of each year if, and to the 45 extent, permitted by regulations promulgated by the commissioner of 46 finance. 47 4. No tenant shall be authorized to receive a reduction in base rent 48 subject to tax under the provisions of this subdivision, until the prem- 49 ises with respect to which it is claiming a reduction in base rent meet 50 the requirements in the definition of eligible premises and until it has 51 obtained a certification of eligibility from the mayor or an agency 52 designated by the mayor, and an annual certification from the mayor or 53 an agency designated by the mayor as to the number of eligible aggregate 54 employment shares maintained by such tenant which may qualify for 55 obtaining a base rent reduction for the tenant's tax year. Any written 56 documentation submitted to the mayor or such agency or agencies in orderS. 8474 714 1 to obtain any such certification shall be deemed a written instrument 2 for purposes of section 175.00 of the penal law. Application fees for 3 such certifications shall be determined by the mayor or such agency or 4 agencies. No certification of eligibility shall be issued to an eligible 5 business on or after July first, two thousand three unless such business 6 meets the requirements of either subparagraph (a) or (b) of this para- 7 graph: 8 (a) (1) prior to such date such business has purchased, leased or 9 entered into a contract to purchase or lease particular premises or a 10 parcel on which will be constructed such premises or already owned such 11 premises or parcel; 12 (2) prior to such date improvements have been commenced on such prem- 13 ises or parcel which improvements will meet the requirements of subdivi- 14 sion (e) of section 22-621 of the code of the preceding municipality 15 relating to expenditures for improvements; 16 (3) prior to such date such business submits a preliminary application 17 for a certification of eligibility to such mayor or such agency or agen- 18 cies with respect to a proposed relocation to such particular premises; 19 and 20 (4) such business relocates to such particular premises not later than 21 thirty-six months or, in a case in which the expenditures made for the 22 improvements specified in clause two of this subparagraph are in excess 23 of fifty million dollars within seventy-two months from the date of 24 submission of such preliminary application; or 25 (b) (1) not later than June thirtieth, two thousand ten, such business 26 has purchased, leased or entered into a contract to purchase or lease 27 particular premises wholly contained in a building in which at least an 28 aggregate of forty per centum or two hundred thousand square feet, 29 whichever is less, of the nonresidential floor area of such building has 30 been purchased or leased by a business or businesses which meet or will 31 meet the requirements of subparagraph (a) of this paragraph with respect 32 to such floor area and which are or will become certified as eligible to 33 receive a credit under section 22-622 of the code of the preceding muni- 34 cipality with respect to such floor area; 35 (2) not later than June thirtieth, two thousand ten, such business 36 submits a preliminary application for a certification of eligibility to 37 such mayor or such agency or agencies with respect to a proposed relo- 38 cation to such particular premises; and 39 (3) not later than June thirtieth, two thousand ten, such business 40 relocates to such particular premises. 41 Any tenant subject to a tax imposed under chapter five, or subchapter 42 two, three or three-A of chapter six, of this title obtaining a certif- 43 ication of eligibility pursuant to subdivision (b) of section 22-622 of 44 the code of the preceding municipality shall be deemed to have obtained 45 the certification of eligibility required by this paragraph. 46 g. Whenever the rent paid by a tenant for his or her occupancy of 47 taxable premises is measured in whole or in part by the gross receipts 48 from the tenant's sales within such place, the tenant's rent, to the 49 extent paid on the basis of such gross receipts, shall be deemed not to 50 exceed fifteen percent of such gross receipts. 51 h. (1) In the case of any taxable premises located in the borough of 52 Manhattan north of the center line of ninety-sixth street or in the 53 boroughs of the Bronx, Brooklyn, Queens and Staten Island, the base rent 54 for such premises shall be reduced by ten percent for the period begin- 55 ning on January first, nineteen hundred eighty-six and ending May thir- 56 ty-first, nineteen hundred eighty-seven, by twenty percent for the peri-S. 8474 715 1 od beginning June first, nineteen hundred eighty-seven and ending May 2 thirty-first, nineteen hundred eighty-nine, and by thirty percent for 3 the period beginning June first, nineteen hundred eighty-nine and ending 4 August thirty-first, nineteen hundred ninety-five, such reduction to be 5 made after all other exemptions and deductions authorized by this chap- 6 ter have been taken. For periods beginning September first, nineteen 7 hundred ninety-five and thereafter, a tenant of taxable premises located 8 in that part of the city specified in this paragraph shall be exempt 9 from the payment of the tax imposed by this chapter with respect to the 10 rent for such taxable premises. 11 (2) In the case of any taxable premises located in the borough of 12 Manhattan south of the center line of ninety-sixth street, the base rent 13 for such premises shall be reduced by (i) fifteen percent for the period 14 beginning March first, nineteen hundred ninety-six and ending May thir- 15 ty-first, nineteen hundred ninety-six, (ii) twenty-five percent for the 16 period beginning June first, nineteen hundred ninety-six and ending 17 August thirty-first, nineteen hundred ninety-eight, and (iii) thirty- 18 five percent for periods beginning September first, nineteen hundred 19 ninety-eight and thereafter, such reduction to be made after all other 20 exemptions and deductions authorized by this chapter have been taken. 21 i. (1) (a) (i) For purposes of, and to the extent relevant to, this 22 subdivision, the following terms shall, except to the extent hereinafter 23 modified, have the definitions assigned to such terms in section four 24 hundred ninety-nine-a of the real property tax law, and such definitions 25 shall apply with the same force and effect as if they had been set forth 26 in full in this subdivision: "abatement zone," "aggregate floor area," 27 "applicant," "department of finance," "eligible building," "eligibility 28 period," "eligible premises," "expansion premises," "expansion tenant," 29 "governmental agency," "landlord," "lease commencement date," "mixed-use 30 building," "new tenant," "person," "relocation area," "renewal tenant," 31 "rent commencement date," "subtenant" and "tenant." 32 (ii) For purposes of this subdivision, the definitions assigned by 33 clause (i) of this subparagraph to the terms "eligible premises," 34 "expansion tenant," "landlord," "new tenant" and "renewal tenant" shall 35 be modified as follows: (A) whenever the term "eligible building" 36 appears in any of such definitions, such term, notwithstanding anything 37 to the contrary, shall be deemed to include an eligible government-owned 38 building and, for purposes of subparagraph (b-2) of paragraph two of 39 subdivision i of this section, a non-residential or mixed-use building 40 located south of the center line of Canal Street in the borough of 41 Manhattan, regardless of when it received its initial certificate of 42 occupancy or initial temporary certificate of occupancy and regardless 43 of when it was constructed and shall be deemed to include an eligible 44 government-owned building; and (B) a reference in any of such defi- 45 nitions to a lease which meets the eligibility requirements of section 46 four hundred ninety-nine-c of the real property tax law shall be deemed 47 to include, in the case of a lease of premises in an eligible govern- 48 ment-owned building, a lease which meets the eligibility requirements of 49 paragraph four of this subdivision. 50 (b) When used in this subdivision, the following terms shall mean or 51 include: (i) "Eligible government-owned building." A building that 52 would be an eligible building, as such term is defined in section four 53 hundred ninety-nine-a of the real property tax law, but for the fact 54 that it is owned by a governmental agency. 55 (ii) "Eligible taxable premises." Taxable premises that are eligible 56 premises or expansion premises.S. 8474 716 1 (iii) "Eligible tenant." A tenant with respect to whose lease of 2 eligible taxable premises there has been issued a certificate of abate- 3 ment or a certificate of eligibility. 4 (iv) "Base year." The twelve-month period that commences on the rent 5 commencement date. 6 (v) "Base rent for the base year." The total base rent for eligible 7 taxable premises for the base year, determined without regard to the 8 special reduction allowed by this subdivision. 9 (vi) "Certificate of abatement." The certificate of abatement issued 10 pursuant to section four hundred ninety-nine-d of the real property tax 11 law. 12 (vii) "Certificate of eligibility." The certificate of eligibility 13 issued pursuant to paragraph five of this subdivision. 14 (2) (a) An eligible tenant of eligible taxable premises shall be 15 allowed a special reduction in determining the taxable base rent for 16 such eligible taxable premises. Such special reduction shall be allowed 17 with respect to the rent for such eligible taxable premises for a period 18 not exceeding sixty months or, with respect to a lease commencing on or 19 after April first, nineteen hundred ninety-seven with an initial lease 20 term of less than five years, but not less than three years, for a peri- 21 od not exceeding thirty-six months, commencing on the rent commencement 22 date applicable to such eligible taxable premises, provided, however, 23 that in no event shall any special reduction be allowed for any period 24 beginning after March thirty-first, two thousand thirty-four. For 25 purposes of applying such special reduction, the base rent for the base 26 year shall, where necessary to determine the amount of the special 27 reduction allowable with respect to any number of months falling within 28 a tax period, be prorated by dividing the base rent for the base year by 29 twelve and multiplying the result by such number of months. 30 (a-1) Notwithstanding paragraph one of this subdivision, for purposes 31 of, and to the extent relevant to, the special reduction allowed by this 32 subparagraph, the definitions set forth in section four hundred ninety- 33 nine-aa of the real property tax law shall apply with the same force and 34 effect as if they had been set forth in full in this subdivision, except 35 as such definitions are hereinafter modified. An eligible tenant of 36 eligible taxable premises shall be allowed a special reduction in deter- 37 mining the taxable base rent for such eligible taxable premises, 38 provided, however, that (i) such eligible taxable premises are eligible 39 premises as defined in paragraph (c) of subdivision ten of section four 40 hundred ninety-nine-aa of the real property tax law, (ii) such eligible 41 taxable premises are located in the special garment center district 42 identified in the abatement zone defined in paragraph (c) of subdivision 43 two of section four hundred ninety-nine-aa of the real property tax law, 44 (iii) the lease for such eligible taxable premises commences within the 45 eligibility period applicable to the abatement zone defined in paragraph 46 (c) of subdivision two of section four hundred ninety-nine-aa of the 47 real property tax law, (iv) the lease for such eligible taxable premises 48 has an initial lease term of at least three years and (v) such special 49 reduction is limited to the benefit period, as defined in subdivision 50 five of section four hundred ninety-nine-aa of the real property tax 51 law, applicable to a lease commencing on or after July first, two thou- 52 sand five for eligible premises located within the abatement zone 53 defined in paragraph (c) of subdivision two of section four hundred 54 ninety-nine-aa of the real property tax law. 55 (a-2) The amount of the special reduction allowed by subparagraph 56 (a-1) of this paragraph shall be determined as follows: (i) For theS. 8474 717 1 base year the amount of such special reduction shall be equal to the 2 base rent for the base year. 3 (ii) For the first through ninth twelve-month periods following the 4 base year the amount of such special reduction shall be equal to the 5 lesser of (A) the base rent for each such twelve-month period or (B) the 6 base rent for the base year. 7 (a-3) When used in this subdivision, for purposes of the special 8 reduction allowed by subparagraph (a-1) of this paragraph, the following 9 terms shall mean or include: (i) "Eligible taxable premises." Taxable 10 premises that are eligible premises or expansion premises. 11 (ii) "Eligible tenant." A tenant with respect to whose lease of eligi- 12 ble taxable premises there has been issued a certificate of abatement. 13 (iii) "Base year." The twelve-month period that commences on the rent 14 commencement date. 15 (iv) "Base rent for the base year." The total base rent for eligible 16 taxable premises for the base year, determined without the special 17 reduction allowed by subparagraph (a-1) of this paragraph. 18 (v) "Certificate of abatement." The certificate of abatement issued 19 pursuant to section four hundred ninety-nine-dd of the real property tax 20 law. 21 (b) Except as provided in subparagraphs (b-1) and (b-2) of this para- 22 graph, the amount of the special reduction allowed by this subdivision 23 shall be determined as follows: (i) For the base year the amount of 24 such special reduction shall be equal to the base rent for the base 25 year. 26 (ii) For the first and second twelve-month periods following the base 27 year the amount of such special reduction shall be equal to the lesser 28 of (A) the base rent for each such twelve-month period or (B) the base 29 rent for the base year. 30 (iii) For the third twelve-month period following the base year the 31 amount of such special reduction shall be equal to two-thirds of the 32 lesser of (A) the base rent for such twelve-month period or (B) the base 33 rent for the base year. 34 (iv) For the fourth twelve-month period following the base year the 35 amount of such special reduction shall be equal to one-third of the 36 lesser of (A) the base rent for such twelve-month period or (B) the base 37 rent for the base year. 38 (b-1) The amount of the special reduction allowed by this subdivision 39 with respect to a lease commencing on or after April first, nineteen 40 hundred ninety-seven with an initial lease term of less than five years, 41 but not less than three years, shall be determined as follows: (i) For 42 the base year the amount of such special reduction shall be equal to the 43 base rent for the base year. 44 (ii) For the first twelve-month period following the base year the 45 amount of such special reduction shall be equal to two-thirds of the 46 lesser of (A) the base rent for such twelve-month period or (B) the base 47 rent for the base year. 48 (iii) For the second twelve-month period following the base year the 49 amount of such special reduction shall be equal to one-third of the 50 lesser of (A) the base rent for such twelve-month period or (B) the base 51 rent for the base year. 52 (b-2) The amount of the special reduction allowed by this subdivision 53 with respect to a lease other than a sublease commencing between July 54 first, two thousand five and June thirtieth, two thousand twenty-seven 55 with an initial or renewal lease term of at least five years shall beS. 8474 718 1 determined as follows: (i) For the base year the amount of such special 2 reduction shall be equal to the base rent for the base year. 3 (ii) For the first, second, third and fourth twelve-month periods 4 following the base year the amount of such special reduction shall be 5 equal to the lesser of (A) the base rent for each such twelve-month 6 period or (B) the base rent for the base year. 7 (c) For purposes of determining (i) whether a tenant is, pursuant to 8 the provisions of paragraph two of subdivision b of this section, exempt 9 from payment of the tax imposed by this chapter with respect to the base 10 rent for eligible taxable premises or (ii) whether, and the extent to 11 which, a tenant is eligible for the credit allowed pursuant to the 12 provisions of section 11-704.3 of this chapter with respect to eligible 13 taxable premises, the term "base rent" as used in such provisions shall 14 be the base rent as determined prior to the allowance of any special 15 reduction allowed by this subdivision. 16 (d) Notwithstanding anything to the contrary, for purposes of this 17 subdivision, expansion premises shall be treated as separate and 18 distinct from any other premises of the expansion tenant in the same 19 eligible building. 20 (3) The special reduction allowed by this subdivision shall be allowed 21 commencing on the rent commencement date; however, if the date of the 22 certificate of abatement or certificate of eligibility is later than the 23 rent commencement date, the tenant shall not, in the first instance, 24 claim the special reduction on any return required to be filed for a tax 25 period ending prior to the date of such certificate of abatement or 26 certificate of eligibility. If the date of such certificate of abatement 27 or certificate of eligibility falls in a tax period subsequent to the 28 tax period in which the rent commencement date falls, but both such 29 dates fall within the same tax year, the special reduction that was not 30 claimed in the first instance for any period preceding the date of such 31 certificate of abatement or certificate of eligibility shall be 32 reflected in the final return for the tax year. If the date of the 33 certificate of abatement or certificate of eligibility falls in the tax 34 year following the tax year in which the rent commencement date falls, 35 an amended final return shall be filed for such earlier tax year in 36 which shall be reflected any special reduction allowable for such tax 37 year; in addition, the final return for such later tax year shall 38 reflect any special reduction that was not claimed in the first instance 39 for any period in such tax year preceding the date of the certificate of 40 abatement or certificate of eligibility. 41 (4) (a) With respect to premises located in an eligible government- 42 owned building, no special reduction shall be allowed under this subdi- 43 vision unless: (i) the landlord enters into a lease for eligible prem- 44 ises with a new tenant or a renewal tenant and: (A) the lease 45 commencement date is within the eligibility period; and (B) (I) if, by 46 the sixtieth day following the rent commencement date, such new or 47 renewal tenant employs fifty or fewer employees in the eligible prem- 48 ises, the initial lease term is for a period of at least five years, 49 provided, however, that with respect to a lease commencing on or after 50 July first, nineteen hundred ninety-six if, by the sixtieth day follow- 51 ing the rent commencement date, such new or renewal tenant employs one 52 hundred twenty-five or fewer employees in the eligible premises, the 53 initial lease term is for a period of at least five years, and provided, 54 further, that with respect to a lease commencing on or after April 55 first, nineteen hundred ninety-seven if, by the sixtieth day following 56 the rent commencement date, such new or renewal tenant employs oneS. 8474 719 1 hundred twenty-five or fewer employees in the eligible premises, the 2 initial lease term is for a period of at least three years, or (II) if, 3 by the sixtieth day following the rent commencement date, such new or 4 renewal tenant employs more than fifty employees in the eligible prem- 5 ises, the initial lease term is for a period of at least ten years, 6 provided, however, that with respect to a lease commencing on or after 7 July first, nineteen hundred ninety-six if, by the sixtieth day follow- 8 ing the rent commencement date, such new or renewal tenant employs more 9 than one hundred twenty-five employees in the eligible premises, the 10 initial lease term is for a period of at least ten years; or 11 (ii) the landlord enters into a lease with an expansion tenant for 12 expansion premises and: (A) the lease commencement date is within the 13 eligibility period; (B) if the expansion premises are located in the 14 eligible building previously occupied by such expansion tenant, the 15 lease term for the premises in the eligible building previously occupied 16 by such expansion tenant will expire no earlier than the expiration date 17 of the initial lease term for the expansion premises, provided that 18 where such expansion tenant occupies premises in the eligible building 19 under more than one lease, the provisions of this subclause shall be 20 applied with reference to the lease for the premises containing the 21 largest amount of square feet, provided, however, that this subclause 22 shall not apply to a lease commencing on or after July first, nineteen 23 hundred ninety-six; and (C) (I) if, by the sixtieth day following the 24 rent commencement date, such expansion tenant employs fifty or fewer 25 employees in the eligible building in which the expansion premises are 26 located, the initial lease term for the expansion premises is for a 27 period of at least five years, provided, however, that with respect to a 28 lease commencing on or after July first, nineteen hundred ninety-six if, 29 by the sixtieth day following the rent commencement date, such expansion 30 tenant employs one hundred twenty-five or fewer employees in the expan- 31 sion premises, the initial lease term for the expansion premises is for 32 a period of at least five years, and provided, further, that with 33 respect to a lease commencing on or after April first, nineteen hundred 34 ninety-seven if, by the sixtieth day following the rent commencement 35 date, such expansion tenant employs one hundred twenty-five or fewer 36 employees in the expansion premises, the initial lease term for the 37 expansion premises is for a period of at least three years, or (II) if, 38 by the sixtieth day following the rent commencement date, such expansion 39 tenant employs more than fifty employees in such eligible building, the 40 initial lease term for the expansion premises is for a period of at 41 least ten years, provided, however, that with respect to a lease 42 commencing on or after July first, nineteen hundred ninety-six if, by 43 the sixtieth day following the rent commencement date, such expansion 44 tenant employs more than one hundred twenty-five employees in the expan- 45 sion premises, the initial lease term for the expansion premises is for 46 a period of at least ten years. 47 (b) Notwithstanding anything in this subdivision to the contrary, with 48 respect to premises located in an eligible government-owned building, no 49 certificate of eligibility shall be issued and no special reduction 50 shall be allowed under this subdivision if: (i) the tenant has relo- 51 cated to such premises from any area in the borough of Manhattan north 52 of the center line of 96th street or from any portion of the boroughs of 53 the Bronx, Brooklyn, Queens, or Staten Island; or (ii) the lease for 54 such premises provides that during the initial lease term required under 55 subparagraph (a) of this paragraph either the landlord or the tenant may 56 terminate such lease prior to the expiration of such required initialS. 8474 720 1 lease term, provided that such lease may provide that either the land- 2 lord or the tenant may terminate such lease if (A) the other party is in 3 default of any of such party's obligations under the lease, (B) the 4 eligible premises are damaged or destroyed by fire or other casualty, 5 (C) the eligible premises are rendered unusable for any reason not 6 attributable to any act or failure to act of either tenant or landlord 7 or (D) the eligible premises are acquired by eminent domain. 8 (c) For purposes of this paragraph, the expiration date of a lease 9 shall be determined by the expiration date set forth in such lease, 10 without giving effect to any rights of the landlord or the tenant to 11 terminate such lease prior to the expiration date set forth therein. 12 (5) (a) (i) With respect to premises located in an eligible govern- 13 ment-owned building, an application for a certificate of eligibility 14 entitling a tenant to claim the special reduction allowed by this subdi- 15 vision shall be filed by such tenant with the department of finance on 16 or after the date on which the lease for the eligible premises is 17 executed by the landlord and tenant but in no event more than one 18 hundred eighty days following the later of the rent commencement date or 19 the date that chapter four of the laws of nineteen hundred ninety-five 20 became a law, and no such certificate of eligibility shall be issued 21 unless such application is filed within such time. 22 (ii) Notwithstanding clause (i) of this subparagraph and any other 23 provision of law to the contrary, with respect to a lease commencing on 24 or after July first, nineteen hundred ninety-six in premises located in 25 an eligible government-owned building, an application for a certificate 26 of eligibility entitling a tenant to claim the special reduction allowed 27 by this subdivision shall be filed by such tenant with the department of 28 finance on or after the date on which the lease for the eligible prem- 29 ises is executed by the landlord and tenant but in no event more than 30 one hundred eighty days following the rent commencement date or sixty 31 days following the date that the chapter of the laws of nineteen hundred 32 ninety-seven that added this clause became a law, whichever is later, 33 and no such certificate of eligibility shall be issued unless such 34 application is filed within such time. 35 (iii) Notwithstanding any other provisions of law to the contrary, an 36 application for the special reduction allowed by subparagraph (b-2) of 37 paragraph two of this subdivision shall be considered timely filed if 38 filed by such tenant with the department of finance on or after the date 39 on which the lease for the eligible premises is executed by the landlord 40 and tenant but in no event more than one hundred eighty days following 41 the rent commencement date or by May thirtieth, two thousand fourteen, 42 whichever is later, and no such special reduction shall be permitted 43 unless such application is filed within such time. 44 (b) In addition to any other information required by the department of 45 finance, such application for a certificate of eligibility shall include 46 (i) an abstract of the lease for the eligible taxable premises, which 47 shall include the lease commencement date, the rent commencement date 48 and the expiration date of such lease, (ii) a statement as to the number 49 of persons employed by the tenant in the eligible taxable premises and, 50 where applicable, in the eligible building containing such premises, by 51 the sixtieth day following the rent commencement date, (iii) a statement 52 as to the location of all office or retail space in the city occupied by 53 the tenant prior to the execution of the lease for the eligible taxable 54 premises and the commencement and expiration dates of all leases for 55 such office or retail space located in the abatement zone. Such applica- 56 tion shall also state that the tenant agrees to comply with and beS. 8474 721 1 subject to such rules as may be issued from time to time by the depart- 2 ment of finance. 3 (c) The department of finance shall issue a certificate of eligibility 4 upon determining that an application filed pursuant to this paragraph 5 meets the requirements set forth in this subdivision, provided, however, 6 that no such certificate of eligibility shall be issued if any payments 7 in lieu of taxes, water or sewer charges or other lienable charges are 8 due and owing with respect to such eligible government-owned building at 9 the time such application is pending, unless such payments in lieu of 10 taxes or charges are at such time being paid in timely installments 11 pursuant to a written agreement with the department of finance or other 12 appropriate agency. 13 (d) The burden of proof shall be on the tenant to show by clear and 14 convincing evidence that the requirements for granting a certificate of 15 eligibility have been satisfied. The department of finance shall have 16 the authority to require that statements in connection with applications 17 pursuant to this paragraph be made under oath. 18 (e) The department of finance may provide by rule for the payment by 19 tenants of premises in eligible government-owned buildings of reasonable 20 administrative charges or fees necessary to defray expenses in 21 connection with the determination of initial and continuing eligibility 22 for the special reduction allowed by this subdivision. 23 (6) (a) If an eligible tenant (i) sublets any portion of the eligible 24 taxable premises to any other person, or (ii) otherwise ceases to occupy 25 or use any portion of the premises as eligible taxable premises, such 26 tenant shall, immediately upon the occurrence of any such event, cease 27 to be eligible for the special reduction allowed by this subdivision 28 with respect to the portion of the premises which is sublet or which 29 ceases to be occupied or used by such tenant as eligible taxable prem- 30 ises, and for any period following the occurrence of any such event, the 31 special reduction otherwise allowed by this subdivision shall be reduced 32 by an amount determined by multiplying the amount of such special 33 reduction by the percentage of the premises which is sublet or which has 34 ceased to be occupied or used as eligible taxable premises. 35 Such tenant shall give written notice of the occurrence of any such 36 event to the department of finance within thirty days thereof. If the 37 tenant fails to give such notice, an assessment of any additional tax 38 that may become due as a result of the occurrence of any such event may 39 be made at any time, notwithstanding anything in section 11-717 of this 40 chapter to the contrary. 41 (b) Notwithstanding anything in this chapter to the contrary, a tenant 42 claiming the special reduction allowed by this subdivision shall file a 43 return for each tax period with respect to which such special reduction 44 is claimed. Each such return shall contain a certification by the 45 tenant, in such form as the department of finance may prescribe, to the 46 effect that such tenant meets all the requirements of this subdivision, 47 and no special reduction shall be allowed if such return does not 48 contain such certification by such tenant. 49 (c) If any special reduction allowed under this subdivision was 50 obtained by a tenant as a result of having made a false or misleading 51 statement as to a material fact or having omitted to state any material 52 fact necessary in order to make such statement not false or misleading, 53 no such special reduction shall be allowed and any additional tax that 54 becomes due as a result of such disallowance may be assessed at any 55 time, notwithstanding anything in section 11-717 of this chapter to the 56 contrary. In addition, the department of finance may declare any suchS. 8474 722 1 tenant to be ineligible to claim any special reduction under this subdi- 2 vision in the future with respect to the same or any other premises. 3 7. A determination by the department of finance pursuant to subdivi- 4 sion six of section four hundred ninety-nine-f of the real property tax 5 law to deny, terminate or revoke any abatement applied for or granted 6 pursuant to title four of article four of the real property tax law 7 based on the relationship between the landlord and the tenant shall not 8 be dispositive of whether such tenant is eligible for a special 9 reduction under this subdivision. The department of finance may deter- 10 mine that such tenant is eligible for a special reduction under this 11 subdivision and may issue a certificate of eligibility to such tenant in 12 accordance with the procedures and pursuant to the standards applicable 13 to a tenant of premises located in an eligible government-owned build- 14 ing, provided, however, that any application filed pursuant to paragraph 15 five of this subdivision by a tenant whose application for a certificate 16 of abatement pursuant to title four of article four of the real property 17 tax law was denied by the department of finance pursuant to subdivision 18 six of section four hundred ninety-nine-f of the real property tax law 19 based on the relationship between the landlord and the tenant, or by a 20 tenant whose application for a certificate of abatement pursuant to 21 title four of article four of the real property tax law was granted by 22 the department of finance, but whose abatement was terminated or revoked 23 by the department of finance pursuant to subdivision six of section four 24 hundred ninety-nine-f of the real property tax law based on the 25 relationship between the landlord and the tenant, may be deemed by the 26 department of finance to have been filed on the date the application for 27 such certificate of abatement was filed. This paragraph shall only apply 28 to leases commencing on or after April first, nineteen hundred ninety- 29 seven. 30 § 11-704.2 Special credit. A tenant whose base rent for the tax year 31 beginning June first, nineteen hundred ninety-three and ending May thir- 32 ty-first, nineteen hundred ninety-four is at least eleven thousand 33 dollars per year but not in excess of thirteen thousand nine hundred 34 ninety-nine dollars per year shall be allowed a credit against the tax 35 imposed by this chapter for such tax year, such credit shall be equal to 36 twenty-five percent of the tax imposed on such base rent for such tax 37 year. Where the base rent of a tenant is for a period of less than one 38 year, such base rent shall, for purposes of this section, be determined 39 as if it had been on an equivalent basis for the entire year. The credit 40 allowed under this section shall be deducted prior to the deduction of 41 any credit allowable under section 11-704.1 of this chapter. 42 § 11-704.3 Tax credit. (a) (1) For the period beginning September 43 first, nineteen hundred ninety-five and ending May thirty-first, nine- 44 teen hundred ninety-six, a credit shall be allowed against the tax 45 imposed by this chapter, such credit to be determined in accordance with 46 the following table: 47 If the tenant's annualized The credit shall be an amount equal 48 base rent for such period is: to the following percentage of the 49 tax imposed on such annualized base 50 rent for such period: 51 At least: But not over: 52 $40,000 $44,999 80% 53 $45,000 $49,999 60% 54 $50,000 $54,999 40% 55 $55,000 $59,999 20%S. 8474 723 1 If the tenant's annualized base rent for such period is over fifty- 2 nine thousand nine hundred ninety-nine dollars, no credit shall be 3 allowed under this paragraph. 4 (2) For the tax year beginning June first, nineteen hundred ninety-six 5 and ending May thirty-first, nineteen hundred ninety-seven, a credit 6 shall be allowed against the tax imposed by this chapter, such credit to 7 be determined in accordance with the following table: 8 If the tenant's base rent is: The credit shall be an amount equal 9 to the following percentage of the 10 tax imposed on such base rent for 11 the tax year: 12 At least: But not over: 13 $40,000 $44,999 80% 14 $45,000 $49,999 60% 15 $50,000 $54,999 40% 16 $55,000 $59,999 20% 17 If the tenant's base rent is over fifty-nine thousand nine hundred 18 ninety-nine dollars, no credit shall be allowed under this paragraph. 19 (3) For each tax year beginning on or after June first, nineteen 20 hundred ninety-seven and ending on or before May thirty-first, two thou- 21 sand, a credit shall be allowed against the tax imposed by this chapter, 22 such credit to be determined in accordance with the following table: 23 If the tenant's base rent is: The credit shall be an amount equal 24 to the following percentage of the 25 tax imposed by this chapter for the 26 tax year: 27 At least: But not over: 28 $100,000 $109,999 80% 29 $110,000 $119,999 60% 30 $120,000 $129,999 40% 31 $130,000 $139,999 20% 32 If the tenant's base rent is over one hundred thirty-nine thousand 33 nine hundred ninety-nine dollars, no credit shall be allowed under this 34 paragraph. For purposes of this paragraph, 'base rent' shall be calcu- 35 lated without regard to any reduction in base rent allowed by paragraph 36 two of subdivision h of section 11-704 of this chapter. 37 (4) For the period beginning June first, two thousand and ending 38 November thirtieth, two thousand, a credit shall be allowed against the 39 tax imposed by this chapter, such credit to be determined in accordance 40 with the following table: 41 If the tenant's annualized The credit shall be an amount equal 42 base rent for such period is: to the following percentage of the 43 tax imposed on such annualized base 44 rent for such period: 45 At least: But not over: 46 $100,000 $109,999 80% 47 $110,000 $119,999 60% 48 $120,000 $129,999 40% 49 $130,000 $139,999 20%S. 8474 724 1 If the tenant's annualized base rent for such period is over one 2 hundred thirty-nine thousand nine hundred ninety-nine dollars, no credit 3 shall be allowed under this paragraph. For purposes of this paragraph 4 'base rent' shall be calculated without regard to any reduction in base 5 rent allowed by paragraph two of subdivision h of section 11-704 of this 6 chapter. 7 (5) For the period beginning December first, two thousand and ending 8 May thirty-first, two thousand one, a credit shall be allowed against 9 the tax imposed by this chapter, such credit to be determined in accord- 10 ance with the following table: 11 If the tenant's annualized The credit shall be an amount equal 12 base rent for such period is: to the following percentage of the 13 tax imposed on such annualized base 14 rent for such period: 15 At least: But not over: 16 $150,000 $159,999 80% 17 $160,000 $169,999 60% 18 $170,000 $179,999 40% 19 $180,000 $189,999 20% 20 If the tenant's annualized base rent for such period is over one 21 hundred eighty-nine thousand nine hundred ninety-nine dollars, no credit 22 shall be allowed under this paragraph. For purposes of this paragraph, 23 'base rent' shall be calculated without regard to any reduction in base 24 rent allowed by paragraph two of subdivision h of section 11-704 of this 25 chapter. 26 (6) For each tax year beginning on or after June first, two thousand 27 one, a credit shall be allowed against the tax imposed by this chapter 28 as follows: a tenant whose base rent is at least two hundred and fifty 29 thousand dollars but not more than three hundred thousand dollars shall 30 be allowed a credit in an amount determined by multiplying three and 31 nine-tenths percent of base rent by a fraction the numerator of which is 32 three hundred thousand dollars minus the amount of base rent and the 33 denominator of which is fifty thousand dollars. If the tenant's base 34 rent is over three hundred thousand dollars, no credit shall be allowed 35 under this paragraph. For purposes of this paragraph, 'base rent' shall 36 be calculated without regard to any reduction in base rent allowed by 37 paragraph two of subdivision h of section 11-704 of this chapter. 38 (b) (1) Where the base rent of a tenant is for a period of less than 39 one year, such base rent shall, for purposes of this section, be deter- 40 mined as if it had been on an equivalent basis for the entire year. The 41 credits allowed under this section shall be deducted prior to the 42 deduction of any credit allowable under section 11-704.1 of this chap- 43 ter. 44 (2) For purposes of paragraphs four and five of subdivision (a) of 45 this section, base rent for the period specified in each of such para- 46 graphs shall be separately annualized as if it had been on an equivalent 47 basis for an entire year, irrespective of the actual base rent for the 48 tax year including the period specified in such paragraph. 49 § 11-704.4. Small business tax credit. a. As used in this section, the 50 following terms have the following meanings: 51 1. Income factor. The term "income factor" shall mean: 52 (i) for a tenant with total income of not more than five million 53 dollars, one;S. 8474 725 1 (ii) for a tenant with total income of more than five million dollars 2 but not more than ten million dollars, a fraction the numerator of which 3 is ten million dollars minus the amount of total income and the denomi- 4 nator of which is five million dollars; and 5 (iii) for a tenant with total income of more than ten million dollars, 6 zero. 7 2. Rent factor. The term "rent factor" shall mean: 8 (i) for a tenant whose small business tax credit base rent is less 9 than five hundred thousand dollars, one; and 10 (ii) for a tenant whose small business tax credit base rent is at 11 least five hundred thousand dollars but not more than five hundred fifty 12 thousand dollars, a fraction the numerator of which is five hundred 13 fifty thousand dollars minus the amount of small business tax credit 14 base rent and the denominator of which is fifty thousand dollars. 15 3. Small business tax credit base rent. The term "small business tax 16 credit base rent" shall mean the base rent calculated without regard to 17 any reduction in base rent allowed by paragraph two of subdivision h of 18 section 11-704 of this chapter. 19 4. Total income. The term "total income" shall mean the amount 20 reported by a person, as defined by section seven thousand seven hundred 21 one of the internal revenue code, to the internal revenue service for 22 the purpose of the federal income tax in the tax year immediately 23 preceding the period for which the tenant is applying for the credit set 24 forth in subdivision b that is equal to the gross receipts or sales of 25 the person minus any returns and allowances, minus the cost of goods 26 sold plus the amount of any dividends, interest, gross rents, gross 27 royalties, capital gain net income, net gain or loss from the sale of 28 business property, net farm profit or loss, ordinary income or loss from 29 other partnerships, estates or trusts or other income or loss; except 30 that, if the tenant is a limited liability company or other business 31 entity that is not separate from its owner for federal income tax 32 purposes under section 301.7701-2(c)(2) of title 26 of the code of 33 federal regulations, total income as defined in this section shall mean 34 the total income of the person that reports the activities of the tenant 35 as its sole owner for federal income tax purposes. 36 b. Beginning on June first, two thousand eighteen and for each tax 37 year beginning thereafter, a credit shall be allowed against the tax 38 imposed by this chapter as follows: a tenant whose small business tax 39 credit base rent is at least two hundred fifty thousand dollars but not 40 more than five hundred fifty thousand dollars shall be allowed a credit 41 in the amount determined by multiplying the tax imposed on the tenant 42 pursuant to section 11-702 of this chapter minus any allowable credits 43 or exemptions set forth outside this section by the income factor and by 44 the rent factor. If the tenant's small business tax credit base rent is 45 over five hundred fifty thousand dollars, no credit shall be allowed 46 under this section. 47 c. The department of finance may promulgate any rules necessary to 48 implement the provisions of this section, including, but not limited to, 49 rules that prevent abuse of this section by related parties. 50 § 11-705 Returns. a. Every tenant subject to tax under this chapter 51 shall file with the commissioner of finance a return with respect to the 52 taxes payable for the three month periods ending on the last days of 53 August, November and February of each year and a final return with 54 respect to the taxes payable for the tax year ending on the last day of 55 May of each year. Such returns shall be filed within twenty days from 56 the expiration of the period covered thereby. A tenant who is exemptS. 8474 726 1 from the tax by reason of paragraph two of subdivision b of section 2 11-704 of this chapter shall nevertheless be required to file a final 3 return, provided, however, that for tax years beginning on or after June 4 first, nineteen hundred ninety-five and ending on or before May thirty- 5 first, nineteen hundred ninety-seven, no such final return shall be 6 required from such exempt tenant with respect to taxable premises if (1) 7 the tenant's rent for such premises, determined without regard to any 8 deduction from or reduction in rent or base rent allowed by this chap- 9 ter, does not exceed fifteen thousand dollars for the tax year and (2) 10 in the case of a tenant who has more than one taxable premises, the 11 aggregate rents for all such premises, determined without regard to any 12 deduction from or reduction in rent or base rent allowed by this chap- 13 ter, do not exceed fifteen thousand dollars for the tax year. For tax 14 years beginning on June first, nineteen hundred ninety-seven and ending 15 on or before May thirty-first, two thousand one, no such final return 16 shall be required from such exempt tenant with respect to any taxable 17 premises if (1) the tenant's rent for such premises, determined without 18 regard to any deduction from or reduction in rent or base rent allowed 19 by this chapter, does not exceed seventy-five thousand dollars for the 20 tax year and (2) the amount of rent received or due from any subtenant 21 of such exempt tenant with respect to such premises does not exceed 22 seventy-five thousand dollars for the tax year. For tax years beginning 23 on or after June first, two thousand one, no such final return shall be 24 required from such exempt tenant with respect to any taxable premises if 25 (1) the tenant's rent for such premises, determined without regard to 26 any deduction from or reduction in rent or base rent allowed by this 27 chapter, does not exceed two hundred thousand dollars for the tax year 28 and (2) the amount of rent received or due from any subtenant of such 29 exempt tenant with respect to such premises does not exceed two hundred 30 thousand dollars for the tax year. Notwithstanding anything in this 31 subdivision to the contrary, for tax periods beginning on or after 32 September first, nineteen hundred ninety-five, no return shall be 33 required pursuant to this subdivision with respect to any taxable prem- 34 ises located in that part of the city specified in paragraph one of 35 subdivision h of section 11-704 of this chapter, and no such taxable 36 premises shall be taken into account for purposes of clause two of this 37 subparagraph. The commissioner of finance may permit or require returns, 38 including final returns, to be made for other periods and upon such 39 dates as the commissioner may specify and if he or she deems it neces- 40 sary, in order to insure the payment of the tax imposed by this chapter, 41 the commissioner may require such returns to be made for shorter periods 42 than those prescribed by this subdivision of this section, and upon such 43 dates as he or she may specify. 44 b. The commissioner of finance may by regulation require the filing 45 of information returns and supplemental information returns by landlords 46 and by tenants of taxable premises, whether or not they are required to 47 pay the tax imposed by this chapter, upon such dates or at such times as 48 the commissioner may specify if he or she deems the filing of such 49 information returns necessary for proper administration of this chapter. 50 c. The form of returns and information returns shall be prescribed by 51 the commissioner of finance and shall contain such information as the 52 commissioner may deem necessary for the proper administration of this 53 chapter. The commissioner of finance may require amended returns or 54 amended information returns to be filed within twenty days after notice 55 and to contain the information specified in the notice.S. 8474 727 1 d. If a return or information return is not filed, or if a return of 2 any kind when filed is incorrect or insufficient on its face, the 3 commissioner of finance shall take the necessary steps to enforce the 4 filing of such a return or of a corrected return. 5 § 11-706 Payment of tax. a. The tax imposed by this chapter shall be 6 due and payable on or before the twentieth day of the calendar month 7 following the end of each tax period and shall be paid to the commis- 8 sioner of finance, as follows: The tax to be paid at such time shall be 9 based on the base rent for such tax period and the rate of tax shall be 10 the one which would be applicable if the base rent for such period were 11 the same for each tax period during the tax year, except that the 12 payment required to be made together with the final return or at the 13 time that the final return should be filed shall be the amount by which 14 the actual tax for the tax year exceeds the amounts previously paid for 15 the tax year. 16 b. Where the final return shows that the amount of tax paid for the 17 tax year exceeds the actual tax for such year, the commissioner of 18 finance shall make the appropriate refund as promptly as possible, 19 provided, however, that where the commissioner of finance has reason to 20 believe that the final return is inaccurate, the commissioner may with- 21 hold the refund in whole or in part. The making of a refund pursuant to 22 this subdivision shall not prevent the commissioner of finance from 23 making a determination that additional tax is due or from pursuing any 24 other method to recover the full amount of the actual tax due for the 25 tax year. 26 c. Where a tenant ceases to do business the tax, as measured by the 27 tenant's base rent for the prior part of the tax year, shall be due 28 immediately, and the tenant shall file a final return, but, should the 29 tenant continue to pay rent for the taxable premises, the tenant shall 30 file the normally required returns and a final return for the tax year, 31 provided, however, that any such tax payment shall be applied in 32 reduction of the tax payments required to be made with such returns or 33 with the final return for such tax year. 34 § 11-707 Records to be kept. Every landlord of taxable premises and 35 every tenant of taxable premises shall keep records of rent paid and 36 received by him or her in such form as the commissioner of finance may 37 by regulation require, all leases or agreements which fix the rents or 38 rights of tenants of taxable premises, and such other records, receipts 39 and other papers relevant to the ascertainment of the tax due under this 40 chapter as the commissioner of finance may by regulation require. Such 41 records shall be offered for inspection and examination at any time upon 42 demand by the commissioner of finance. Such records, unless the commis- 43 sioner of finance consents to a sooner destruction or requires that they 44 be kept for a longer time, shall be preserved for a period of three 45 years except that leases or agreements which fix the rents or rights of 46 a tenant shall be kept for a period of three years after the expiration 47 of the tenancy thereunder. 48 § 11-708 Determination of tax. If a return required by this chapter is 49 not filed, or if a return when filed is incorrect or insufficient, the 50 commissioner of finance shall determine the amount of tax due from such 51 information as may be obtainable and, if necessary, may estimate the tax 52 on the basis of external indices. Notice of such determination shall be 53 given to the person liable for the payment of the tax. Such determi- 54 nation shall finally and irrevocably fix the tax unless the person 55 against whom it is assessed, within ninety days after the giving of 56 notice of such determination or, if the commissioner of finance hasS. 8474 728 1 established a conciliation procedure pursuant to section 11-124 of this 2 title and the taxpayer has requested a conciliation conference in 3 accordance therewith, within ninety days from the mailing of a concil- 4 iation decision or the date of the commissioner's confirmation of the 5 discontinuance of the conciliation proceeding, both (1) serves a peti- 6 tion upon the commissioner of finance and (2) files a petition with the 7 tax appeals tribunal for a hearing, or unless the commissioner of 8 finance of the commissioner's own motion shall redetermine the same. 9 Such hearing and any appeal to the tax appeals tribunal sitting en banc 10 from the decision rendered in such hearing shall be conducted in the 11 manner and subject to the requirements prescribed by the tax appeals 12 tribunal pursuant to sections one hundred sixty-eight through one 13 hundred seventy-two of the charter of the preceding municipality as it 14 existed January first, nineteen hundred ninety-four. After such hearing 15 the tax appeals tribunal shall give notice of its decision to the person 16 against whom the tax is assessed and to the commissioner of finance. A 17 decision of the tax appeals tribunal sitting en banc shall be reviewable 18 for error, illegality or unconstitutionality or any other reason whatso- 19 ever by a proceeding under article seventy-eight of the civil practice 20 law and rules if application therefor is made to the supreme court by 21 the person against whom the tax was assessed within four months after 22 the giving of the notice of such tax appeals tribunal decision, 23 provided, however, that any such proceeding under article seventy-eight 24 of the civil practice law and rules shall not be instituted by a taxpay- 25 er unless: (a) the amount of any tax sought to be reviewed, with inter- 26 est and penalties thereon, if any, shall be first deposited and there is 27 filed an undertaking with the commissioner of finance, issued by a sure- 28 ty company authorized to transact business in this state and approved by 29 the superintendent of insurance of this state as to solvency and respon- 30 sibility, in such amount as a justice of the supreme court shall approve 31 to the effect that if such proceeding be dismissed or the tax confirmed 32 the taxpayer will pay all costs and charges which may accrue in the 33 prosecution of such proceeding or (b) at the option of the taxpayer such 34 undertaking may be in a sum sufficient to cover the taxes, interest and 35 penalties stated in such decision plus the costs and charges which may 36 accrue against it in the prosecution of the proceeding, in which event 37 the taxpayer shall not be required to pay such taxes, interest or penal- 38 ties as a condition precedent to the application. 39 § 11-709 Refunds. a. In the manner provided in this section the 40 commissioner of finance shall refund or credit, without interest, any 41 tax, penalty or interest erroneously, illegally or unconstitutionally 42 collected or paid, if written application to the commissioner of finance 43 for such refund shall be made within eighteen months from the date fixed 44 by this chapter for filing the return on which such payment was based or 45 within six months of the payment thereof, whichever of such periods 46 expire the later. Whenever a refund or credit is made or denied, the 47 commissioner of finance shall state his or her reason therefor and give 48 notice thereof to the taxpayer in writing. The commissioner of finance 49 may, in lieu of any refund required to be made, allow credit therefor on 50 payments due from the applicant. 51 b. Any determination of the commissioner of finance denying a refund 52 or credit pursuant to subdivision a of this section shall be final and 53 irrevocable unless the applicant for such refund or credit, within nine- 54 ty days from the mailing of notice of such determination, or, if the 55 commissioner of finance has established a conciliation procedure pursu- 56 ant to section 11-124 of this title and the applicant has requested aS. 8474 729 1 conciliation conference in accordance therewith, within ninety days from 2 the mailing of a conciliation decision or the date of the commissioner's 3 confirmation of the discontinuance of the conciliation proceeding, both 4 (1) serves a petition upon the commissioner of finance and (2) files a 5 petition with the tax appeals tribunal for a hearing. Such petition for 6 a refund or credit, made as herein provided, shall be deemed an applica- 7 tion for a revision of any tax, penalty or interest complained of. Such 8 hearing of any appeal to the tax appeals tribunal sitting en banc from 9 the decision rendered in such hearing shall be conducted in the manner 10 and subject to the requirements prescribed by the tax appeals tribunal 11 pursuant to section one hundred sixty-eight through one hundred seven- 12 ty-two of the charter of the preceding municipality as it existed Janu- 13 ary first, nineteen hundred ninety-four. After such hearing, the tax 14 appeals tribunal shall give notice of its decision to the applicant and 15 to the commissioner of finance. The applicant shall be entitled to 16 institute a proceeding pursuant to article seventy-eight of the civil 17 practice law and rules to review a decision of the tax appeals tribunal 18 sitting en banc if application to the supreme court be made therefor 19 within four months after the giving of notice of such decision, and 20 provided, in the case of an application by a taxpayer, that a final 21 determination of tax due was not previously made. Such a proceeding 22 shall not be instituted by a taxpayer unless an undertaking shall first 23 be filed with the commissioner of finance, in such amount and with such 24 sureties as a justice of the supreme court shall approve, to the effect 25 that if such proceeding be dismissed or the tax confirmed, the taxpayer 26 will pay all costs and charges which may accrue in the prosecution of 27 the proceeding. 28 c. A person shall not be entitled to a revision, refund or credit 29 under this section of a tax, interest or penalty which had been deter- 30 mined to be due pursuant to the provisions of section 11-708 of this 31 chapter where such person has had a hearing or an opportunity for a 32 hearing, as provided in said section, or has failed to avail himself or 33 herself of the remedies therein provided. No refund or credit shall be 34 made of a tax, interest or penalty paid after a determination by the 35 commissioner of finance made pursuant to section 11-708 of this chapter 36 unless it be found that such determination was erroneous, illegal or 37 unconstitutional, or otherwise improper, by the tax appeals tribunal 38 after a hearing, or, if such tax appeals tribunal affirms in whole or in 39 part the determination of the commissioner of finance, in a proceeding 40 under article seventy-eight of the civil practice law and rules, pursu- 41 ant to the provisions of said section, in which event refund or credit 42 without interest shall be made of the tax, interest or penalty found to 43 have been overpaid. 44 § 11-710 Remedies exclusive. The remedies provided by this chapter 45 shall be the exclusive remedies available to any person for the review 46 of tax liability imposed by this chapter; and no determination or 47 proposed determination of tax or determination on any application for 48 refund by the commissioner of finance, nor any decision by the tax 49 appeals tribunal or any of its administrative law judges, shall be 50 enjoined or reviewed by an action for declaratory judgment, an action 51 for money had and received or by any action or proceeding other than, in 52 the case of a decision by the tax appeals tribunal sitting en banc, a 53 proceeding under article seventy-eight of the civil practice law and 54 rules; provided, however, that a taxpayer may proceed by declaratory 55 judgment if he or she institutes suit within thirty days after a defi- 56 ciency assessment is made and pays the amount of the deficiency assess-S. 8474 730 1 ment to the commissioner of finance prior to the institution of such 2 suit and posts a bond for costs as provided in section 11-708 of this 3 chapter. 4 § 11-711 Reserves. In cases where the taxpayer has applied for a 5 refund and has instituted a proceeding under article seventy-eight of 6 the civil practice law and rules to review a determination adverse to 7 the taxpayer on his or her application for refund, the comptroller shall 8 set up appropriate reserves to meet any decision adverse to the city. 9 § 11-712 Proceedings to recover tax. a. Whenever any person shall 10 fail to pay any tax or penalty or interest imposed by this chapter as 11 herein provided, the corporation counsel shall, upon the request of the 12 commissioner of finance, bring or cause to be brought an action to 13 enforce payment of the same against the person liable for the same on 14 behalf of the city of Staten Island in any court of the state of New 15 York or of any other state or of the United States. If, however, the 16 commissioner of finance in his or her discretion believes that a 17 taxpayer subject to the provisions of this chapter is about to cease 18 business, leave the state or remove or dissipate the assets out of which 19 tax or penalties might be satisfied and that any such tax or penalty 20 will not be paid when due, he or she may declare such tax or penalty to 21 be immediately due and payable and may issue a warrant immediately. 22 b. As an additional or alternate remedy, the commissioner of finance 23 may issue a warrant, directed to the city sheriff commanding the sheriff 24 to levy upon and sell the real and personal property of such person 25 which may be found within the city, for the payment of the amount there- 26 of, with any penalties and interest, and the cost of executing the 27 warrant, and to return such warrant to the commissioner of finance and 28 to pay to the commissioner the money collected by virtue thereof within 29 sixty days after the receipt of such warrant. The city sheriff shall, 30 within five days after the receipt of the warrant, file with the county 31 clerk a copy thereof, and thereupon such clerk shall enter in the judg- 32 ment docket the name of the person mentioned in the warrant and the 33 amount of the tax, penalties and interest for which the warrant is 34 issued and the date when such copy is filed. Thereupon the amount of 35 such warrant so docketed shall become a lien upon the title to and 36 interest in real and personal property of the person against whom the 37 warrant is issued. The city sheriff shall then proceed upon the warrant 38 in the same manner and with like effect as that provided by law in 39 respect to executions issued against property upon judgments of a court 40 of record, and for services in executing the warrant the sheriff shall 41 be entitled to the same fees which the sheriff may collect in the same 42 manner. In the discretion of the commissioner of finance a warrant of 43 like terms, force and effect may be issued and directed to any officer 44 or employee of the department of finance, and in the execution thereof 45 such officer or employee shall have all the powers conferred by law upon 46 sheriffs, but he or she shall be entitled to no fee or compensation in 47 excess of the actual expenses paid in the performance of such duty. If 48 a warrant is returned not satisfied in full, the commissioner of finance 49 may from time to time issue new warrants and shall also have the same 50 remedies to enforce the amount due thereunder as if the city had recov- 51 ered judgment therefor and execution thereon had been returned unsatis- 52 fied. 53 c. Whenever there is made a sale, transfer or assignment in bulk of 54 any part or the whole of a stock of merchandise or of fixtures, or 55 merchandise and of fixtures pertaining to the conducting of the business 56 of the seller, transferor or assignor, otherwise than in the ordinaryS. 8474 731 1 course of trade and in the regular prosecution of said business, the 2 purchaser, transferee or assignee shall at least ten days before taking 3 possession of such merchandise, fixtures, or merchandise and fixtures, 4 or paying therefor, notify the commissioner of finance by registered 5 mail of the proposed sale and of the price, terms and conditions thereof 6 whether or not the seller, transferor or assignor, has represented to, 7 or informed the purchaser, transferee or assignee that it owes any tax 8 pursuant to this chapter and whether or not the purchaser, transferee or 9 assignee has knowledge that such taxes are owing, and whether any such 10 taxes are in fact owing. 11 Whenever the purchaser, transferee or assignee shall fail to give 12 notice to the commissioner of finance as required by the opening para- 13 graph of this subdivision, or whenever the commissioner of finance shall 14 inform the purchaser, transferee or assignee that a possible claim for 15 such tax or taxes exists, any sums of money, property or choses in 16 action, or other consideration, which the purchaser, transferee or 17 assignee is required to transfer over to the seller, transferor or 18 assignor shall be subject to a first priority right and lien for any 19 such taxes theretofore or thereafter determined to be due from the sell- 20 er, transferor or assignor to the city, and the purchaser, transferee or 21 assignee is forbidden to transfer to the seller, transferor or assignor 22 any such sums of money, property or choses in action to the extent of 23 the amount of the city's claim. For failure to comply with the 24 provisions of this subdivision, the purchaser, transferee or assignee, 25 in addition to being subject to the liabilities and remedies imposed 26 under the provisions of former section forty-four of the personal prop- 27 erty law, shall be personally liable for the payment to the city of any 28 such taxes theretofore or thereafter determined to be due to the city 29 from the seller, transferor or assignor, and such liability may be 30 assessed and enforced in the same manner as the liability for tax under 31 this chapter. 32 d. The commissioner of finance, if he or she finds that the interests 33 of the city will not thereby be jeopardized, and upon such conditions as 34 the commissioner of finance may require, may release any property from 35 the lien of any warrant or vacate such warrant for unpaid taxes, addi- 36 tions to tax, penalties and interest filed pursuant to subdivision b of 37 this section, and such release or vacating of the warrant may be 38 recorded in the office of any recording officer in which such warrant 39 has been filed. The clerk shall thereupon cancel and discharge as of the 40 original date of docketing the vacated warrant. 41 § 11-713 General powers of the commissioner of finance. In addition 42 to the powers granted to the commissioner of finance in this chapter, 43 the commissioner is hereby authorized and empowered: 44 1. To make, adopt and amend rules and regulations appropriate to the 45 carrying out of this chapter and the purposes thereof; 46 2. To extend, for cause shown, the time for filing any return for a 47 period not exceeding ninety days; and to compromise disputed claims in 48 connection with the taxes hereby imposed; 49 3. To request information from the tax commission of the state on New 50 York or the treasury department of the United States relative to any 51 person; and to afford information to such tax commission or such treas- 52 ury department relative to any person; 53 4. To delegate the commissioner's functions pursuant to this section 54 to a deputy commissioner of finance or other employee or employees of 55 the commissioner's department;S. 8474 732 1 5. To assess, determine, revise and adjust the taxes imposed under 2 this chapter; 3 6. To require any tenant who uses premises for both residential 4 purposes and as taxable premises and who pays an undivided rent for the 5 entire premises so used to provide the commissioner with a signed and 6 notarized request to the United States director of internal revenue for 7 photostatic copies of the tenant's income tax return for any year when 8 the commissioner deems such income tax return necessary to determine the 9 rent ascribable to so much of such premises as is used as taxable prem- 10 ises; and, if the tenant refuses to provide the commissioner with such a 11 signed written request, to treat the rent for the entire premises as the 12 rent for so much as is used as taxable premises; 13 7. To prescribe methods for determining how much of any tenant's base 14 rent is ascribable to a use which results in a reduction of the base 15 rent or for determining any other division of rent or of use of premises 16 necessary for the determination of the base rent or the amount of base 17 rent subject to tax under this chapter; 18 8. To authorize banks or trust companies which are depositories or 19 financial agents of the city to receive and give a receipt for any tax 20 imposed under this chapter in such manner, at such times, and under such 21 conditions as the commissioner of finance may prescribe; and the commis- 22 sioner of finance shall prescribe the manner, times and conditions under 23 which the receipt of such tax by such banks and trust companies is to be 24 treated as payment of such tax to the commissioner of finance. 25 § 11-714 Administration of oaths and compelling testimony. a. The 26 commissioner of finance, the commissioner's employees duly designated 27 and authorized by the commissioner, the tax appeals tribunal and any of 28 its duly designated and authorized employees shall have power to admin- 29 ister oaths and take affidavits in relation to any matter or proceeding 30 in the exercise of their powers and duties under this chapter. The 31 commissioner of finance and the tax appeals tribunal shall have power to 32 subpoena and require the attendance of witnesses and the production of 33 books, papers and documents to secure information pertinent to the 34 performance of the duties of the commissioner or of the tax appeals 35 tribunal hereunder and of the enforcement of this chapter and to examine 36 them in relation thereto, and to issue commissions for the examination 37 of witnesses who are out of the state or unable to attend before the 38 commissioner or the tax appeals tribunal or excused from attendance. 39 b. A justice of the supreme court either in court or at chambers shall 40 have power summarily to enforce by proper proceedings the attendance and 41 testimony of witnesses and the production and examination of books, 42 papers and documents called for by the subpoena of the commissioner of 43 finance or the tax appeals tribunal under this chapter. 44 c. Cross-reference; criminal penalties. For failure to obey subpoenas 45 or for testifying falsely, see section 11-4007 of this title; for 46 supplying false or fraudulent information, see section 11-4002 of this 47 title. 48 d. The officers who serve the summons or subpoena of the commissioner 49 of finance or the tax appeals tribunal hereunder and witnesses attending 50 in response thereto shall be entitled to the same fees as are allowed to 51 officers and witnesses in civil cases in courts of record, except as 52 herein otherwise provided. Such officers shall be the city sheriff, and 53 the sheriff's duly appointed deputies or any officers or employees of 54 the department of finance or the tax appeals tribunal, designated to 55 serve such process.S. 8474 733 1 § 11-715 Interest and penalties. (a) Interest on underpayment; quar- 2 terly return. If any amount of tax required to be paid together with a 3 return, other than the final return for a tax year, is not paid on or 4 before the last date prescribed for payment, without regard to any 5 extension of time granted for payment, interest on such amount at the 6 rate set by the commissioner of finance pursuant to subdivision (h) of 7 this section, or, if no rate is set, at the rate of seven and one-half 8 percent per annum, shall be paid for the period from such last date 9 until twenty days after the end of the tax year during which such 10 payments were due or until such prior time as the tax paid for the tax 11 year equals seventy-five percent of the full tax required to be paid for 12 the tax year. Such interest shall be paid with the final return for the 13 tax year to which it relates. In computing the amount of interest to be 14 paid, such interest shall be compounded daily. Interest under this 15 subdivision shall not be paid if the amount thereof is less than one 16 dollar. 17 (b) Interest on underpayment; final return. If any amount of tax 18 required to be paid together with the final return for a tax year is not 19 paid on or before the last date prescribed for payment, without regard 20 to any extension of time granted for payment, interest on such amount at 21 the rate set by the commissioner of finance pursuant to subdivision (h) 22 of this section, or, if no rate is set, at the rate of seven and one- 23 half percent per annum, shall be paid for the period from such last date 24 to the date of payment. In computing the amount of interest to be paid, 25 such interest shall be compounded daily. Interest under this subdivision 26 shall not be paid if the amount thereof is less than one dollar. 27 (c) (1) Failure to file final return. (A) In case of failure to file 28 a final return under this chapter on or before the prescribed date, 29 determined with regard to any extension of time for filing, unless it is 30 shown that such failure is due to reasonable cause and not due to will- 31 ful neglect, there shall be added to the amount required to be shown as 32 tax on such return five percent of the amount of such tax if the failure 33 is for not more than one month, with an additional five percent for each 34 additional month or fraction thereof during which such failure contin- 35 ues, not exceeding twenty-five percent in the aggregate, and, in addi- 36 tion thereto, where a tenant, with respect to any taxable premises, is 37 exempt from tax by reason of paragraph two of subdivision b of section 38 11-704 of this chapter, there shall be imposed a penalty of one hundred 39 dollars. 40 (B) In the case of a failure to file a return of tax within sixty days 41 of the date prescribed for filing of such return, determined with regard 42 to any extension of time for filing, unless it is shown that such fail- 43 ure is due to reasonable cause and not due to willful neglect, the addi- 44 tion to tax under subparagraph (A) of this paragraph shall not be less 45 than the lesser of one hundred dollars or one hundred percent of the 46 amount required to be shown as tax on such return. 47 (C) For purposes of this paragraph, the amount of tax required to be 48 shown on the return shall be reduced by the amount of any part of the 49 tax which is paid on or before the date prescribed for payment of the 50 tax and by the amount of any credit against the tax which may be claimed 51 upon the return. 52 (2) Failure to pay tax shown on final return. In case of failure to 53 pay the amount shown as tax on a final return required to be filed under 54 this chapter on or before the prescribed date, determined with regard to 55 any extension of time for payment, unless it is shown that such failure 56 is due to reasonable cause and not due to willful neglect, there shallS. 8474 734 1 be added to the amount shown as tax on such return one-half of one 2 percent of the amount of such tax if the failure is not for more than 3 one month, with an additional one-half of one percent for each addi- 4 tional month or fraction thereof during which such failure continues, 5 not exceeding twenty-five percent in the aggregate. For the purpose of 6 computing the addition for any month the amount of tax shown on the 7 return shall be reduced by the amount of any part of the tax which is 8 paid on or before the beginning of such month and by the amount of any 9 credit against the tax which may be claimed upon the return. If the 10 amount of tax required to be shown on a return is less than the amount 11 shown as tax on such return, this paragraph shall be applied by substi- 12 tuting such lower amount. 13 (3) Failure to pay tax required to be shown on final return. In case 14 of failure to pay any amount in respect of any tax required to be shown 15 on a final return required to be filed under this chapter which is not 16 so shown, including a determination made pursuant to section 11-708 of 17 this chapter, within ten days of the date of a notice and demand there- 18 for, unless it is shown that such failure is due to reasonable cause and 19 not due to willful neglect, there shall be added to the amount of tax 20 stated in such notice and demand one-half of one percent of such tax if 21 the failure is not for more than one month, with an additional one-half 22 of one percent for each additional month or fraction thereof during 23 which such failure continues, not exceeding twenty-five percent in the 24 aggregate. For the purpose of computing the addition for any month, the 25 amount of tax stated in the notice and demand shall be reduced by the 26 amount of any part of the tax which is paid before the beginning of such 27 month. 28 (4) Limitations on additions. 29 (A) With respect to any final return, the amount of the addition under 30 paragraph one of this subdivision shall be reduced by the amount of the 31 addition under paragraph two of this subdivision for any month to which 32 an addition applies under both such paragraphs one and two. In any case 33 described in subparagraph (B) of paragraph one of this subdivision, the 34 amount of the addition under such paragraph one shall not be reduced 35 below the amount provided in such subparagraph. 36 (B) With respect to any final return, the maximum amount of the addi- 37 tion permitted under paragraph three of this subdivision shall be 38 reduced by the amount of the addition under paragraph one of this subdi- 39 vision, determined without regard to subparagraph (B) of such paragraph 40 one, which is attributable to the tax for which the notice and demand is 41 made and which is not paid within ten days of such notice and demand. 42 (d) Underpayment due to negligence. (1) If any part of an underpayment 43 of tax is due to negligence or intentional disregard of this chapter or 44 any rules or regulations hereunder, but without intent to defraud, there 45 shall be added to the tax a penalty equal to five percent of the under- 46 payment. 47 (2) There shall be added to the tax, in addition to the amount deter- 48 mined under paragraph one of this subdivision, an amount equal to fifty 49 percent of the interest payable under subdivision (b) of this section 50 with respect to the portion of the underpayment described in such para- 51 graph one which is attributable to the negligence or intentional disre- 52 gard referred to in such paragraph one, for the period beginning on the 53 last date prescribed by law for payment of such underpayment, determined 54 without regard to any extension, and ending on the date of the assess- 55 ment of the tax, or, if earlier, the date of the payment of the tax.S. 8474 735 1 (e) Underpayment due to fraud. (1) If any part of an underpayment of 2 tax is due to fraud, there shall be added to the tax a penalty equal to 3 fifty percent of the underpayment. 4 (2) There shall be added to the tax, in addition to the penalty deter- 5 mined under paragraph one of this subdivision, an amount equal to fifty 6 percent of the interest payable under subdivision (b) of this section 7 with respect to the portion of the underpayment described in such para- 8 graph one which is attributable to fraud, for the period beginning on 9 the last date prescribed by law for payment of such underpayment, deter- 10 mined without regard to any extension, and ending on the date of the 11 assessment of the tax, or, if earlier, the date of the payment of the 12 tax. 13 (3) The penalty under this subdivision shall be in lieu of any other 14 addition to tax imposed by subdivision (c) or (d) of this section. 15 (f) Additional penalty. Any person who, with fraudulent intent, shall 16 fail to pay any tax imposed by this chapter, or to make, render, sign or 17 certify any return, or to supply any information within the time 18 required by or under this chapter, shall be liable for a penalty of not 19 more than one thousand dollars, in addition to any other amounts 20 required under this chapter to be imposed, assessed and collected by the 21 commissioner of finance. The commissioner of finance shall have the 22 power, in his or her discretion, to waive, reduce or compromise any 23 penalty under this subdivision. 24 (g) The interest and penalties imposed by this section shall be paid 25 and disposed of in the same manner as other revenues from this chapter. 26 Unpaid interest and penalties may be enforced in the same manner as the 27 tax imposed by this chapter. 28 (h) (1) Authority to set interest rates. The commissioner of finance 29 shall set the rate of interest to be paid pursuant to subdivisions (a) 30 and (b) of this section, but if no such rate of interest is set, such 31 rate shall be deemed to be set at seven and one-half percent per annum. 32 Such rate shall be the same for each subdivision and shall be the rate 33 prescribed in paragraph two of this subdivision but shall not be less 34 than seven and one-half percent per annum. Any such rate set by the 35 commissioner of finance shall apply to taxes, or any portion thereof, 36 which remain or become due on or after the date on which such rate 37 becomes effective and shall apply only with respect to interest computed 38 or computable for periods or portions of periods occurring in the period 39 in which such rate is in effect. 40 (2) General rule. The rate of interest set under this subdivision 41 shall be the sum of (i) the federal short-term rate as provided under 42 paragraph three of this subdivision, plus (ii) seven percentage points. 43 (3) Federal short-term rate. For purposes of this subdivision: 44 (A) The federal short-term rate for any month shall be the federal 45 short-term rate determined by the United States secretary of the treas- 46 ury during such month in accordance with subsection (d) of section 47 twelve hundred seventy-four of the internal revenue code for use in 48 connection with section six thousand six hundred twenty-one of the 49 internal revenue code. Any such rate shall be rounded to the nearest 50 full percent, or, if a multiple of one-half of one percent, such rate 51 shall be increased to the next highest full percent. 52 (B) Period during which rate applies. 53 (i) In general. Except as provided in clause (ii) of this subpara- 54 graph, the federal short-term rate for the first month in each calendar 55 quarter shall apply during the first calendar quarter beginning after 56 such month.S. 8474 736 1 (ii) Special rule for the month of September, nineteen hundred eight- 2 y-nine. The federal short-term rate for the month of April, nineteen 3 hundred eighty-nine shall apply with respect to setting the rate of 4 interest for the month of September, nineteen hundred eighty-nine. 5 (4) Publication of interest rate. The commissioner of finance shall 6 cause to be published in the City Record, and give other appropriate 7 general notice of, the interest rate to be set under this subdivision no 8 later than twenty days preceding the first day of the calendar quarter 9 during which such interest rate applies. The setting and publication of 10 such interest rate shall not be included within paragraph (a) of subdi- 11 vision five of section one thousand forty-one of the city charter of the 12 preceding municipality as it existed January first, nineteen hundred 13 ninety-four relating to the definition of a rule. 14 (i) Miscellaneous. (1) The certificate of the commissioner of finance 15 to the effect that a tax has not been paid, that a return has not been 16 filed, or that information has not been supplied pursuant to the 17 provisions of this chapter shall be prima facie evidence thereof. 18 (2) Cross-reference: For criminal penalties, see chapter forty of 19 this title. 20 (j) Substantial understatement of liability. If there is a substan- 21 tial understatement of tax for any tax year, there shall be added to the 22 tax an amount equal to ten percent of the amount of any underpayment 23 attributable to such understatement. For purposes of this subdivision, 24 there is a substantial understatement of tax for any tax year if the 25 amount of the understatement for the tax year exceeds the greater of ten 26 percent of the tax required to be shown on the final return for the tax 27 year or five thousand dollars. For purposes of this subdivision, the 28 term "understatement" means the excess of the amount of the tax required 29 to be shown on the final return for the tax year, over the amount of the 30 tax imposed which is shown on the return, reduced by any rebate. The 31 amount of such understatement shall be reduced by that portion of the 32 understatement which is attributable to the tax treatment of any item by 33 the taxpayer if there is or was substantial authority for such treat- 34 ment, or any item with respect to which the relevant facts affecting the 35 item's tax treatment are adequately disclosed in the return or in a 36 statement attached to the return. The commissioner of finance may waive 37 all or any part of the addition to tax provided by this subdivision on a 38 showing by the taxpayer that there was reasonable cause for the under- 39 statement, or part thereof, and that the taxpayer acted in good faith. 40 (k) Aiding or assisting in the giving of fraudulent returns, reports, 41 statements or other documents. (1) Any person who, with the intent that 42 tax be evaded, shall, for a fee or other compensation or as an incident 43 to the performance of other services for which such person receives 44 compensation, aid or assist in, or procure, counsel, or advise the prep- 45 aration or presentation under, or in connection with any matter arising 46 under this chapter of any return, report, statement or other document 47 which is fraudulent or false as to any material matter, or supply any 48 false or fraudulent information, whether or not such falsity or fraud is 49 with the knowledge or consent of the person authorized or required to 50 present such return, report, statement or other document shall pay a 51 penalty not exceeding ten thousand dollars. 52 (2) For purposes of paragraph one of this subdivision, the term 53 "procures" includes ordering, or otherwise causing, a subordinate to do 54 an act, and knowing of, and not attempting to prevent, participation by 55 a subordinate in an act. The term "subordinate" means any other person, 56 whether or not a director, officer, employee, or agent of the taxpayerS. 8474 737 1 involved, over whose activities the person has direction, supervision, 2 or control. 3 (3) For purposes of paragraph one of this subdivision, a person 4 furnishing typing, reproducing, or other mechanical assistance with 5 respect to a document shall not be treated as having aided or assisted 6 in the preparation of such document by reason of such assistance. 7 (4) The penalty imposed by this subdivision shall be in addition to 8 any other penalty provided by law. 9 § 11-716 Returns to be secret. a. Except in accordance with proper 10 judicial order or as otherwise provided by law, it shall be unlawful for 11 the commissioner of finance, the department of finance of the city, any 12 officer or employee of the department of finance of the city, any person 13 engaged or retained by such department on an independent contract basis, 14 the tax appeals tribunal, any commissioner or employee of such tribunal, 15 or any person who, pursuant to this section, is permitted to inspect any 16 return or to whom a copy, an abstract or a portion of any return is 17 furnished, or to whom any information contained in any return is 18 furnished, to divulge or make known in any manner any information relat- 19 ing to the business of a taxpayer contained in any return required under 20 this chapter. The officers charged with the custody of such returns 21 shall not be required to produce any of them or evidence of anything 22 contained in them in any action or proceeding in any court, except on 23 behalf of the commissioner of finance in an action or proceeding under 24 the provisions of this chapter, or on behalf of any party to any action 25 or proceeding under the provisions of this chapter when the returns or 26 facts shown thereby are directly involved in such action or proceeding, 27 in either of which events the courts may require the production of, and 28 may admit in evidence so much of said returns or of the facts shown 29 thereby, as are pertinent to the action or proceeding and no more. 30 Nothing in this subdivision shall be construed to prohibit the delivery 31 to a taxpayer or the taxpayer's duly authorized representative of a 32 certified copy of any return filed in connection with his or her tax; 33 nor to prohibit the delivery of such a certified copy of such return or 34 of any information contained in or relating thereto, to the United 35 States of America or any department thereof, the state of New York or 36 any department thereof, any agency or any department of the city of 37 Staten Island provided the same is requested for official business; nor 38 to prohibit the inspection for official business of such returns by the 39 corporation counsel or other legal representatives of the city or by the 40 district attorney of the county of Richmond; nor to prohibit the publi- 41 cation of statistics so classified as to prevent the identification of 42 particular returns or items thereof. 43 b. (1) Any officer or employee of the city who willfully violates the 44 provisions of subdivision a of this section shall be dismissed from 45 office and be incapable of holding any public office in this city for a 46 period of five years thereafter. 47 (2) Cross-reference: For criminal penalties, see chapter forty of this 48 title. 49 c. This section shall be deemed a state statute for purposes of para- 50 graph (a) of subdivision two of section eighty-seven of the public offi- 51 cers law. 52 d. Notwithstanding anything in subdivision a of this section to the 53 contrary, if a taxpayer has petitioned the tax appeals tribunal for 54 administrative review as provided in section one hundred seventy of the 55 charter of the preceding municipality as it existed January first, nine- 56 teen hundred ninety-four, the commissioner of finance shall be author-S. 8474 738 1 ized to present to the tribunal any report or return of such taxpayer, 2 or any information contained therein or relating thereto, which may be 3 material or relevant to the proceeding before the tribunal. The tax 4 appeals tribunal shall be authorized to publish a copy or a summary of 5 any decision rendered pursuant to section one hundred seventy-one of the 6 charter of the preceding municipality as it existed January first, nine- 7 teen hundred ninety-four. 8 § 11-717 Notices and limitation of time. a. Any notice authorized or 9 required under the provisions of this chapter may be given to the person 10 for whom it is intended by mailing it in a postpaid envelope addressed 11 to such person at the address given in the last return filed by such 12 person pursuant to the provisions of this chapter or in any application 13 made by such person or if no return has been filed or application made, 14 then to such address as may be obtainable. The mailing of a notice as in 15 this paragraph provided for shall be presumptive evidence of the receipt 16 of the same by the person to whom addressed. Any period of time which is 17 determined according to the provisions of this chapter by the giving of 18 notice shall commence to run from the date of mailing of such notice as 19 in this subdivision provided. 20 b. The provisions of the civil practice law and rules or any other law 21 relative to limitations of time for the enforcement of a civil remedy 22 shall not apply to any proceeding or action taken by the city to levy, 23 appraise, assess, determine or enforce the collection of any tax or 24 penalty provided by this chapter. However, except in the case of a 25 wilfully false or fraudulent return with intent to evade the tax, no 26 assessment of additional tax shall be made after the expiration of more 27 than three years from the date of the final return for the tax year to 28 which the assessment relates; provided, however, that where no return 29 has been made as provided by law, the tax may be assessed at any time. 30 c. Where before the expiration of the period prescribed herein for the 31 assessment of an additional tax, a person has consented in writing that 32 such period be extended, the amount of such additional tax due may be 33 determined at any time within such extended period. The period so 34 extended may be further extended by subsequent consents in writing made 35 before the expiration of the extended period. 36 d. If any return, claim, statement, notice, application, or other 37 document required to be filed, or any payment required to be made, with- 38 in a prescribed period or on or before a prescribed date under authority 39 of any provision of this chapter is, after such period or such date, 40 delivered by United States mail to the commissioner of finance, the tax 41 appeals tribunal, bureau, office, officer or person with which or with 42 whom such document is required to be filed, or to which or to whom such 43 payment is required to be made, the date of the United States postmark 44 stamped on the envelope shall be deemed to be the date of delivery. This 45 subdivision shall apply only if the postmark date falls within the 46 prescribed period or on or before the prescribed date for the filing of 47 such document, or for making the payment, including any extension grant- 48 ed for such filing or payment, and only if such document or payment was 49 deposited in the mail, postage prepaid, properly addressed to the 50 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 51 cer or person with which or with whom the document is required to be 52 filed or to which or to whom such payment is required to be made. If any 53 document is sent by United States registered mail, such registration 54 shall be prima facie evidence that such document was delivered to the 55 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 56 cer or person to which or to whom addressed, and the date of registra-S. 8474 739 1 tion shall be deemed the postmark date. The commissioner of finance or, 2 where relevant, the tax appeals tribunal is authorized to provide by 3 regulation the extent to which the provisions of this subdivision with 4 respect to prima facie evidence of delivery and the postmark date shall 5 apply to certified mail. Except as provided in subdivision f of this 6 section, this subdivision shall apply in the case of postmarks not made 7 by the United States postal service only if and to the extent provided 8 by regulation of the commissioner of finance or, where relevant, the tax 9 appeals tribunal. 10 e. When the last day prescribed under authority of this chapter, 11 including any extension of time, for performing any act falls on a 12 Saturday, Sunday or legal holiday in the state, the performance of such 13 act shall be considered timely if it is performed on the next succeeding 14 day which is not a Saturday, Sunday or legal holiday. 15 f. (1) Any reference in subdivision d of this section to the United 16 States mail shall be treated as including a reference to any delivery 17 service designated by the secretary of the treasury of the United States 18 pursuant to section seventy-five hundred two of the internal revenue 19 code and any reference in subdivision d of this section to a United 20 States postmark shall be treated as including a reference to any date 21 recorded or marked in the manner described in section seventy-five 22 hundred two of the internal revenue code by a designated delivery 23 service. If the commissioner of finance finds that any delivery service 24 designated by such secretary is inadequate for the needs of the city, 25 the commissioner of finance may withdraw such designation for purposes 26 of this title. The commissioner of finance may also designate additional 27 delivery services meeting the criteria of section seventy-five hundred 28 two of the internal revenue code for purposes of this title, or may 29 withdraw any such designation if the commissioner of finance finds that 30 a delivery service so designated is inadequate for the needs of the 31 city. Any reference in subdivision d of this section to the United 32 States mail shall be treated as including a reference to any delivery 33 service designated by the commissioner of finance and any reference in 34 subdivision d of this section to a United States postmark shall be 35 treated as including a reference to any date recorded or marked in the 36 manner described in section seventy-five hundred two of the internal 37 revenue code by a delivery service designated by the commissioner of 38 finance. Notwithstanding the foregoing, any withdrawal of designation or 39 additional designation by the commissioner of finance shall not be 40 effective for purposes of service upon the tax appeals tribunal, unless 41 and until such withdrawal of designation or additional designation is 42 ratified by the president of the tax appeals tribunal. 43 (2) Any equivalent of registered or certified mail designated by the 44 United States secretary of the treasury, or as may be designated by the 45 commissioner of finance pursuant to the same criteria used by such 46 secretary for such designations pursuant to section seventy-five hundred 47 two of the internal revenue code, shall be included within the meaning 48 of registered or certified mail as used in subdivision d of this 49 section. If the commissioner of finance finds that any equivalent of 50 registered or certified mail designated by such secretary or the commis- 51 sioner of finance is inadequate for the needs of the city, the commis- 52 sioner of finance may withdraw such designation for purposes of this 53 title. Notwithstanding the provisions of this paragraph, any withdrawal 54 of designation or additional designation by the commissioner of finance 55 shall not be effective for purposes of service upon the tax appealsS. 8474 740 1 tribunal, unless and until such withdrawal of designation or additional 2 designation is ratified by the president of the tax appeals tribunal. 3 § 11-718 Construction and enforcement. This chapter shall be construed 4 in conformity with chapter two hundred fifty-seven of the laws of nine- 5 teen hundred sixty-three, pursuant to which it is enacted. 6 § 11-719 Annual report. a. No later than September first, two thousand 7 twenty-five, and every September first thereafter, the department of 8 finance shall submit to the mayor and speaker of the council, and make 9 publicly available online, a report on the commercial rent tax. Such 10 report shall include the following information for the prior commercial 11 rent tax period, on the condition that any category that only includes 12 one taxpayer shall not be reported for any tax period: 13 1. the distribution of taxable premises and taxpayers by base rent 14 range, including the number and zip codes of the taxable premises for 15 which the commercial rent tax was collected, the number of taxpayers who 16 paid the tax, the number of taxpayers who paid the tax on more than one 17 property and the total amount of commercial rent tax paid for the set of 18 taxable premises and taxpayers within each range; 19 2. the distribution of taxable premises and taxpayers by industry, 20 including the number and zip codes of the taxable premises for which the 21 commercial rent tax was collected, the number of taxpayers who paid the 22 tax, the number of taxpayers who paid the tax on more than one property 23 and the total amount of commercial rent tax paid for the set of taxable 24 premises and taxpayers within each industry; 25 3. the total amount of tax collected and the average tax liability per 26 premises for each of the prior ten tax years; 27 4. the total amount of tax collected and the average tax liability per 28 taxpayer for each of the prior ten tax years; 29 5. a comparison of the total commercial rent tax collected to the 30 average market value of commercial properties in the city of Staten 31 Island as determined by the department for each of the prior ten tax 32 years; 33 6. the number of taxable premises and the number of taxpayers by base 34 rent range and industry who received the credit set forth in section 35 11-704.4 of this chapter; and 36 7. any other information deemed relevant for inclusion by the depart- 37 ment. 38 b. For purposes of the report required by subdivision a of this 39 section, the base rent ranges shall be: 40 1. between $250,000 and $274,999; 41 2. between $275,000 and $299,999; 42 3. between $300,000 and $349,999; 43 4. between $350,000 and $399,999; 44 5. between $400,000 and $449,999; 45 6. between $450,000 and $499,999; 46 7. between $500,000 and $549,999; 47 8. between $550,000 and $599,999; 48 9. between $600,000 and $699,999; 49 10. between $700,000 and $799,999; 50 11. between $800,000 and $899,999; 51 12. between $900,000 and $999,999; 52 13. between $1,000,000 and $1,999,999; 53 14. between $2,000,000 and $2,999,999; 54 15. between $3,000,000 and $3,999,999; 55 16. between $4,000,000 and $4,999,999; 56 17. between $5,000,000 and $9,999,999; andS. 8474 741 1 18. more than $10,000,000. 2 CHAPTER 8 3 TAX ON COMMERCIAL MOTOR VEHICLES AND MOTOR VEHICLES 4 FOR TRANSPORTATION OF PASSENGERS 5 § 11-801 Definitions. When used in this chapter, the following terms 6 shall mean or include: 7 1. "Person." An individual, partnership, corporation, joint-stock 8 company, society, association, receiver, lessee, trustee, estate, refer- 9 ee, assignee, or any other person acting in a fiduciary or represen- 10 tative capacity, whether appointed by a court or otherwise, and any 11 combination of individuals. 12 2. "Motor vehicle." Any vehicle operated upon a public highway or 13 public street propelled by any power other than muscular power. 14 3. "Commercial motor vehicle." (a) Each truck, tractor, trailer or 15 semi-trailer, and any other motor vehicle constructed or specially 16 equipped for the transportation of goods, wares and merchandise which is 17 commonly known as an auto truck or light delivery car; 18 (b) Any traction engine, road roller, tractor crane, truck crane, 19 power shovel, road building machine, snow plow, road sweeper, sand 20 spreader, well driller, or well servicing rig; and 21 (c) Any earth moving equipment as defined in the vehicle and traffic 22 law; provided that such motor vehicles are used principally in the city 23 or used principally in connection with a business carried on within the 24 city. 25 4. "Motor vehicle for transportation of passengers." (a) Any motor 26 vehicle licensed as a taxicab or as a coach, or any motor vehicle, not 27 so licensed, which carries passengers for compensation, including limou- 28 sine service, whether the compensation paid by or on behalf of the 29 passenger is based on mileage, trip, time consumed or any other basis; 30 and 31 (b) Any omnibus, except one operated pursuant to a franchise when, 32 under such franchise or under a contract, relating to transportation to 33 or from airports, with the port of New York authority, the holder of the 34 franchise pays to the city or to the port of New York authority a 35 percentage of its gross earnings or gross receipts or one used exclu- 36 sively in interstate commerce; provided such motor vehicles, as defined 37 in paragraph (a) or (b) of this subdivision, are used regularly, even 38 though not principally, in the city; and further provided that this 39 definition shall not be deemed to include any motor vehicle used princi- 40 pally for the transportation of children to and from schools and day 41 camps operated by non-profit agencies as defined in subdivision four of 42 section 11-803 of this chapter, any motor vehicle used exclusively for 43 transportation of persons in connection with funerals or any motor vehi- 44 cle for transportation of passengers where neither the owner of such 45 motor vehicle nor any person or business engaged in transporting passen- 46 gers by motor vehicle for-hire that is affiliated with such owner has a 47 place of business in such city, a telephone number in such city, or 48 solicits business or specifically advertises in such city. 49 5. "Owner." Any person owning a commercial motor vehicle or a motor 50 vehicle for the transportation of passengers and shall include a 51 purchaser under a reserve title contract, conditional sales agreement or 52 vendor's lien agreement. In addition, an owner shall be deemed to 53 include any lessee, licensee or bailee having the exclusive use of a 54 commercial motor vehicle or a vehicle for the transportation of passen- 55 gers, under a lease or otherwise, for a period of thirty days or more.S. 8474 742 1 6. "Omnibus." Any motor vehicle for transportation of passengers for 2 hire having a seating capacity of more than seven persons. 3 7. "Use." Any use of a motor vehicle upon the public highways or 4 streets of the city. 5 8. "Maximum gross weight." The weight of the motor vehicle plus the 6 weight of the maximum load to be carried, if any, by such vehicle. 7 9. "Registered owner." The person who registers a motor vehicle as 8 owner thereof pursuant to the registration requirements of the vehicle 9 and traffic law of the state of New York. 10 10. "Registration fee." The full annual fee or charge prescribed in 11 the vehicle and traffic law of the state of New York for the registra- 12 tion of a motor vehicle. 13 11. "City." The city of Staten Island. 14 12. "Comptroller." The comptroller of the city. 15 13. "Commissioner of finance." The commissioner of finance of the 16 city. 17 14. "Tax year." June first of any calendar year through May thirty- 18 first of the following calendar year. 19 15. "Medallion taxicab." A motor vehicle for transportation of passen- 20 gers which is duly licensed as a taxicab by the taxi and limousine 21 commission and permitted to accept hails from passengers in the street. 22 16. "Tax appeals tribunal." The tax appeals tribunal established by 23 section one hundred sixty-eight of the charter of the preceding munici- 24 pality as it existed January first, nineteen hundred ninety-four. 25 17. "Commissioner of motor vehicles." The commissioner of motor vehi- 26 cles of the state of New York. 27 18. "Taxi and limousine commission." The New York city taxi and limou- 28 sine commission. 29 § 11-802 Imposition of tax. a. In addition to any and all other taxes, 30 including the compensating use tax, there is hereby imposed and there 31 shall be paid annually for each tax year beginning June first, nineteen 32 hundred sixty, a tax on the use in the city of motor vehicles to be paid 33 by the owners of such vehicles as follows: 34 1. (A) For tax years ending on or before May thirty-first, nineteen 35 hundred seventy-two, on commercial vehicles, twenty dollars for each 36 such vehicle having a maximum gross weight of five tons or less, and 37 thirty dollars for each such vehicle having a maximum gross weight of 38 more than five tons, provided, however, that for each such vehicle 39 having a registration fee prescribed in the vehicle and traffic law of 40 the state of New York which is less than twenty dollars, the tax shall 41 be an amount equal to such registration fee; 42 (B) For tax years beginning on and after June first, nineteen hundred 43 seventy-two but before June first, nineteen hundred ninety, on commer- 44 cial vehicles, forty dollars for each such vehicle having a maximum 45 gross weight of five tons or less, and sixty dollars for each such vehi- 46 cle having a maximum gross weight of more than five tons, provided, 47 however, that for each such vehicle having a registration fee prescribed 48 in the vehicle and traffic law of the state of New York which is less 49 than forty dollars, the tax shall be an amount equal to such registra- 50 tion fee. 51 (C) For tax years beginning on and after June first, nineteen hundred 52 ninety, on commercial vehicles, forty dollars for each such vehicle 53 having a maximum gross weight of ten thousand pounds or less, two 54 hundred dollars for each such vehicle having a maximum gross weight of 55 more than ten thousand pounds but not more than twelve thousand five 56 hundred pounds, two hundred seventy-five dollars for each such vehicleS. 8474 743 1 having a maximum gross weight of more than twelve thousand five hundred 2 pounds but not more than fifteen thousand pounds and three hundred 3 dollars for each such vehicle having a maximum gross weight of more than 4 fifteen thousand pounds, provided, however, that for each such vehicle 5 having a registration fee prescribed in the vehicle and traffic law of 6 the state of New York which is less than forty dollars, the tax shall be 7 an amount equal to such registration fee. 8 2. (A) For tax years ending on or before May thirty-first, nineteen 9 hundred ninety, on motor vehicles for the transportation of passengers 10 other than medallion taxicabs, and for tax years ending on or before May 11 thirty-first, nineteen hundred eighty-nine, on medallion taxicabs, one 12 hundred dollars for each such vehicle. 13 (B) For the tax year beginning June first, nineteen hundred eighty- 14 nine and ending May thirty-first, nineteen hundred ninety, on medallion 15 taxicabs, five hundred dollars for each such vehicle. 16 (C) For tax years beginning on and after June first, nineteen hundred 17 ninety but before May thirty-first, two thousand nineteen, on medallion 18 taxicabs, one thousand dollars for each such vehicle, and on all other 19 motor vehicles for transportation of passengers, four hundred dollars 20 for each such vehicle. 21 (D) For tax years beginning on or after June first, two thousand nine- 22 teen, on all motor vehicles for transportation of passengers, including 23 medallion taxicabs, four hundred dollars for each such vehicle. 24 b. To the extent that the tax as imposed by subdivision a of this 25 section may be invalid solely because it is based on the use in the city 26 of the motor vehicles, the tax shall also be deemed to be based on the 27 privilege of using the public highways or streets of the city by such 28 motor vehicle. Under such circumstances the rate of tax shall be the 29 same and all other provisions of this chapter shall be equally applica- 30 ble. 31 c. If the first use of any motor vehicle subject to the tax imposed 32 under this chapter occurs on or after December first and before March 33 first in any tax year, the tax for that year shall be one-half of the 34 tax hereinabove provided; and, if the first such use occurs on or after 35 March first in any tax year, the tax for that tax year shall be one- 36 fourth of such tax. 37 d. In applying the tax on commercial motor vehicles with respect to 38 tractors, trailers and semi-trailers, the tax shall be measured by the 39 weight of the tractor plus the maximum gross weight of the trailer or 40 semi-trailer with the greatest such maximum gross weight to be drawn by 41 such tractor. No trailer or semi-trailer shall be subject to any sepa- 42 rate or additional tax under this chapter. 43 § 11-803 Exemptions. The provisions of this chapter shall not apply 44 to motor vehicles owned and operated, or leased for their exclusive use 45 by: 46 1. The state of New York, or any public corporation, including a 47 corporation created pursuant to agreement or compact with another state 48 or the Dominion of Canada, improvement district or other political 49 subdivision of the state; 50 2. The United States of America; 51 3. The United Nations or other world-wide international organizations 52 of which the United States of America is a member; 53 4. Any corporation, or association, or trust, or community chest, fund 54 or foundation, organized and operated exclusively for religious, chari- 55 table or educational purposes, or for the prevention of cruelty to chil- 56 dren or animals, and no part of the net earnings of which inures to theS. 8474 744 1 benefit of any private shareholder or individual and no substantial part 2 of the activities of which is carrying on propaganda, or otherwise 3 attempting to influence legislation; provided, however, that nothing in 4 this subdivision shall include an organization operated for the primary 5 purpose of carrying on a trade or business for profit, whether or not 6 all of its profits are payable to one or more organizations described in 7 this subdivision; 8 5. Any foreign nation or representative of a foreign nation with 9 respect to motor vehicles for which they need not pay a registration fee 10 under the provisions of the vehicle and traffic law; 11 6. Dealers in new and used motor vehicles where the use of the motor 12 vehicle is confined solely to demonstrations to prospective customers or 13 to delivery by or to the dealer and the vehicle bears dealer's license 14 plates. 15 § 11-804 Presumption and burden of proof. For the purpose of the 16 proper administration of this chapter and to prevent evasion of the tax 17 hereby imposed, it shall be presumed that all motor vehicles used in the 18 city of the types described in paragraphs (a), (b) and (c) of subdivi- 19 sion three of section 11-801 of this chapter are used principally in the 20 city or used principally in connection with a business carried on within 21 the city and are subject to the tax until the contrary is established; 22 and it shall be presumed that all motor vehicles used in the city of the 23 types described in paragraphs (a) and (b) of subdivision four of section 24 11-801 of this chapter are used regularly, even though not principally 25 in the city and are subject to the tax until the contrary is estab- 26 lished. The burden of proving that a motor vehicle is not taxable under 27 this chapter shall be on the owner of the motor vehicle. 28 § 11-805 Records to be kept. Every owner of a motor vehicle subject 29 to tax under this chapter shall keep such records of his or her vehicles 30 and of their use in the city in such form as the commissioner of finance 31 may by regulation require. Such records shall be offered for inspection 32 and examination at any time upon demand by the commissioner of finance 33 or the commissioner's duly authorized agent or employee and shall be 34 preserved for a period of three years except that the commissioner of 35 finance may consent to their destruction within that period or may 36 require that they be kept longer. 37 § 11-806 Registration. a. By July thirteenth, nineteen hundred sixty 38 or, upon acquiring any motor vehicle subject to tax hereunder after such 39 date, within two days of such acquisition, every owner shall file with 40 the commissioner of finance a certificate of registration in such form 41 as prescribed by the commissioner of finance. 42 b. In order to determine whether motor vehicles are subject to the tax 43 under this chapter and to facilitate administration thereof an informa- 44 tion registration certificate in such form as is prescribed by the 45 commissioner of finance shall be filed with the commissioner of finance 46 by any person who owns or acquires: 47 1. A motor vehicle of a type described in paragraph (a), (b) or (c) of 48 subdivision three of section 11-801 of this chapter which is registered 49 in the city under the vehicle and traffic law or is used in the city in 50 connection with a business carried on within the city; or 51 2. A motor vehicle of the type described in paragraphs (a) and (b) of 52 subdivision four of section 11-801 of this chapter which is registered 53 in the city under the vehicle and traffic law or is used in the city. 54 Such an information registration certificate shall be filed by July 55 thirteenth, nineteen hundred sixty or, if a motor vehicle is acquired 56 after such date, within two days after such acquisition. An informationS. 8474 745 1 registration certificate, however, need not be filed with respect to any 2 motor vehicle for which a registration certificate has been filed pursu- 3 ant to subdivision a of this section. The commissioner of finance may, 4 by regulation, provide that information registration certificates need 5 not be filed with respect to a type of motor vehicle or with respect to 6 any general group within a type of motor vehicle. 7 § 11-807 Returns. a. On or before the twentieth day of June in each 8 year commencing with the year nineteen hundred sixty, every owner of a 9 motor vehicle subject to tax under this chapter shall file a return with 10 the commissioner of finance. A supplemental return shall also be filed 11 by every owner with regard to each motor vehicle subject to tax acquired 12 during any tax year at a time subsequent to the filing of the owner's 13 regular return. Such supplemental return shall be filed with the 14 commissioner of finance within a stated time, as fixed by regulation of 15 the commissioner of finance, after the acquisition of the motor vehicle. 16 An owner who acquires a motor vehicle subject to the tax after the 17 commencement of a tax year and who has not filed a return or supple- 18 mental return with respect to such motor vehicle shall file a return 19 with respect to it within two days after its acquisition by the owner. 20 b. The commissioner of finance, by regulation, may require that each 21 person required under this chapter to file an information registration 22 certificate file an information return with the commissioner of finance 23 annually or at such other times as the commissioner deems appropriate 24 for proper administration of this chapter. The commissioner of finance 25 may, by regulation, provide that information returns need not be filed 26 or that they be filed at different times with respect to a type of motor 27 vehicle or with respect to any general group within a type of motor 28 vehicle or with respect to any particular circumstances. 29 c. The commissioner of finance may permit or require returns, supple- 30 mental returns or information returns to be filed at times other than 31 those specified in the commissioner's regulations. If the commissioner 32 deems it necessary in order to insure payment of the tax imposed by this 33 chapter, the commissioner of finance may require any return, supple- 34 mental return or information return to be filed with him or her at a 35 time other than that fixed by such commissioner. 36 d. The form of returns, supplemental returns and information returns 37 shall be prescribed by the commissioner of finance and shall contain 38 such information as the commissioner may deem necessary for the proper 39 administration of this chapter. The commissioner of finance may require 40 amended returns, amended supplemental returns or amended information 41 returns to be filed within twenty days after notice and to contain the 42 information specified in the notice. 43 e. If a return, supplemental return or information return is not 44 filed, or if a return of any kind when filed is incorrect or insuffi- 45 cient on its face, the commissioner of finance shall take the necessary 46 steps to enforce the filing of such a return or of a corrected return. 47 § 11-808 Payment of tax. a. At the time of filing a return or supple- 48 mental return the owner shall pay to the commissioner of finance the tax 49 imposed by this chapter. Such tax shall be due and payable on the last 50 day on which such return or supplemental return is required to be filed, 51 regardless of whether such a return is filed or whether the return which 52 is filed correctly indicates the amount of tax due. 53 b. Where an owner of a motor vehicle subject to tax under this chapter 54 replaces it with another motor vehicle during a tax year, the owner 55 shall be entitled, upon approval by the commissioner of finance, to have 56 any tax paid with respect to the replaced vehicle credited toward theS. 8474 746 1 tax payable with respect to the replacement vehicle for the balance of 2 such tax year, and the owner shall pay no additional tax for such tax 3 year with respect to it unless its nature or its maximum gross weight 4 requires the payment of a higher amount of tax than that paid with 5 respect to the replaced vehicle. A supplemental return, where required, 6 shall be filed with respect to a replacement vehicle irrespective of 7 whether additional tax is payable. Upon the grant of a waiver of tax by 8 the commissioner of finance a purchaser of a motor vehicle subject to 9 tax under this chapter who purchases it during a tax year from an owner 10 who has paid the tax shall not be required to pay the tax with respect 11 to such motor vehicle for the balance of such tax year if, and only if, 12 the owner obtains, and submits to the commissioner of finance together 13 with his or her return or supplemental return, a certificate or its 14 equivalent, as prescribed by the commissioner of finance, signed by the 15 prior owner to the effect that the prior owner has not had the tax paid 16 credited toward any replacement vehicle and will not seek to obtain such 17 a credit for any replacement vehicle purchased in the future. Nothing 18 contained in this subdivision shall be deemed to authorize a refund 19 merely because a motor vehicle with respect to which the tax has been 20 paid is sold or otherwise disposed of during the course of the tax year. 21 c. Notwithstanding any other provision of law to the contrary, the tax 22 imposed on medallion taxicabs pursuant to subparagraph (C) of paragraph 23 two of subdivision a of section 11-802 of this chapter shall be due and 24 payable in two equal installments, the first of which shall be due and 25 payable on or before the last day on which the return or supplemental 26 return for the tax year is required to be filed, and the second of which 27 shall be due and payable on or before the first day of December in such 28 tax year; provided, however, that if a medallion taxicab is acquired 29 subsequent to the first day of November in such tax year, the full 30 amount of the tax imposed for the tax year shall be due and payable on 31 or before the last day on which the supplemental return with respect to 32 such medallion taxicab is required to be filed. 33 d. Notwithstanding any other provision of law to the contrary, the tax 34 imposed on medallion taxicabs pursuant to subparagraph (B) of paragraph 35 two of subdivision a of section 11-802 of this chapter shall, to the 36 extent not previously paid, be due and payable on or before December 37 first, nineteen hundred eighty-nine; provided, however, that if the tax 38 imposed on a medallion taxicab would, but for the provisions of this 39 subdivision, be due and payable subsequent to December first, nineteen 40 hundred eighty-nine, the due date of such tax shall be determined with- 41 out regard to this subdivision; and provided, further, that nothing in 42 this subdivision shall be deemed to extend the date for payment of any 43 tax imposed by paragraph two of subdivision a of section 11-802 of this 44 chapter. 45 e. Notwithstanding any provision of this chapter or of chapter five of 46 title nineteen of the code of the preceding municipality to the contra- 47 ry, the taxi and limousine commission may require by rule the payment of 48 the tax imposed on medallion taxicabs pursuant to this chapter as a 49 condition precedent of the licensing or license renewal of such medal- 50 lion taxicabs, and the taxi and limousine commission shall have the 51 authority to deny the license or the renewal thereof for any medallion 52 taxicab that fails to pay such tax. 53 § 11-809 Stamps and other indicia of payment. a. The commissioner of 54 finance may, by regulation, provide that the payment of the tax imposed 55 by this chapter shall be evidenced by suitable stamps or other indicia 56 of payment in a form prescribed by the commissioner of finance and thatS. 8474 747 1 every owner shall affix such stamps or other indicia of payment in the 2 manner prescribed by regulation to each motor vehicle for which a tax 3 had been paid, or shall otherwise keep the indicia of payment with the 4 vehicle, readily available for inspection, in the manner prescribed by 5 regulation. The owner or driver of the vehicle, upon demand, shall 6 exhibit the indicia of payment to the commissioner of finance or the 7 commissioner's duly authorized agent or employee or to any police offi- 8 cer of this city or state. The commissioner of finance may, by regu- 9 lation, make similar provision for the use of stamps or other indicia 10 that no tax is payable with respect to particular motor vehicles. 11 b. An owner who sells a motor vehicle shall not transfer any stamp or 12 other indicia of payment to the purchaser except on a sale to a purchas- 13 er to whom the owner has properly given the certificate provided for in 14 section 11-808 of this chapter with regard to not obtaining a credit 15 toward any tax payable with respect to a replacement vehicle. The 16 commissioner of finance shall, by regulation, provide for the 17 destruction of the stamp or other indicia of payment or its return to 18 the commissioner of finance upon all sales except where transfer to the 19 purchaser is permitted and, where the motor vehicle sold has been 20 replaced, for the issuance of replacement stamps or indicia of payment. 21 § 11-809.1 Collection of tax by commissioner of motor vehicles. a. 22 Notwithstanding any provision of this chapter to the contrary, the tax 23 imposed by this chapter on any commercial motor vehicle with a maximum 24 gross weight of ten thousand pounds or less and on any motor vehicle for 25 transportation of passengers, other than a medallion taxicab, shall be 26 collected by the commissioner of motor vehicles, provided that any such 27 motor vehicle is registered or required to be registered pursuant to any 28 provision of section four hundred one of the vehicle and traffic law. 29 The owner of each such motor vehicle shall pay the tax due thereon to 30 the commissioner of motor vehicles on or before the date upon which such 31 owner registers or renews the registration of such motor vehicle or is 32 required to register or renew the registration thereof pursuant to 33 section four hundred one of the vehicle and traffic law. 34 b. Notwithstanding any provision of section four hundred of the vehi- 35 cle and traffic law to the contrary, payment of the tax with respect to 36 a motor vehicle described in subdivision a of this section shall be a 37 condition precedent to the registration or renewal thereof of such motor 38 vehicle and to the issuance of any certificate of registration and 39 plates or removable date tag in accordance with the vehicle and traffic 40 law and the rules and regulations promulgated thereunder, and no such 41 certificate of registration, plates or tag shall be issued unless such 42 tax has been paid. If the registration period applicable to any such 43 vehicle is a period of not less than two years, as a result of the 44 application of the provisions of paragraph c of subdivision five of 45 section four hundred one of the vehicle and traffic law, the tax 46 required to be paid pursuant to this section shall be the annual tax 47 specified in section 11-802 of this chapter multiplied by the number of 48 years in the registration period. The commissioner of motor vehicles, 49 upon payment of the tax pursuant to this section or upon the application 50 of any person exempt therefrom, shall furnish to each taxpayer paying 51 the tax a receipt for such tax and to each other taxpayer or exempt 52 person a statement, document or other form prescribed by the commission- 53 er of motor vehicles, showing that such tax has been paid or is not due 54 with respect to such motor vehicle. 55 c. Notwithstanding the definition of the term "tax year" contained in 56 subdivision fourteen of section 11-801 of this chapter, for purposes ofS. 8474 748 1 the taxes payable to the commissioner of motor vehicles pursuant to this 2 section, "tax year" shall mean the twelve-month registration period 3 applicable to the subject motor vehicle under the vehicle and traffic 4 law and, in the case of a registration period of at least two years, 5 shall mean each succeeding twelve-month period falling within such 6 registration period. 7 d. Where the tax imposed by this chapter has been paid to the commis- 8 sioner of finance with respect to a motor vehicle for a tax year 9 described in subdivision fourteen of section 11-801 of this chapter, and 10 subsequent thereto but within such tax year the same taxpayer pays a tax 11 to the commissioner of the motor vehicles with respect to such motor 12 vehicle pursuant to this section, such taxpayer shall be entitled to a 13 refund or credit from the commissioner of finance for the portion of the 14 tax paid to the commissioner of finance which is attributable to the 15 period beginning on the first day of the first tax year, as the term 16 "tax year" is defined in subdivision c of this section, for which the 17 tax is paid to the commissioner of motor vehicles and ending on the 18 following May thirty-first, provided, however, that no such refund or 19 credit shall be allowed if the amount thereof is less than five dollars. 20 Any refund or credit to which a taxpayer is entitled pursuant to this 21 subdivision shall be promptly refunded or credited, without interest, by 22 the commissioner of finance, and the commissioner of finance may promul- 23 gate such rules as he or she deems necessary to carry out the provisions 24 of this subdivision. Any amount for which the taxpayer is entitled to a 25 refund or credit pursuant to this subdivision may be allowed as a credit 26 against the tax payable to the commissioner of motor vehicles pursuant 27 to this section to the extent and in the manner provided for in the 28 agreement authorized by subdivision k of this section. 29 e. Whenever any fee or portion of a fee paid for the registration of a 30 motor vehicle under the provisions of the vehicle and traffic law is 31 refunded pursuant to the provisions of subdivision one or one-a of 32 section four hundred twenty-eight thereof, the amount of any tax paid to 33 the commissioner of motor vehicles pursuant to this section upon such 34 registration shall also be refunded by the commissioner of motor vehi- 35 cles, provided that where a fee is refunded pursuant to subdivision 36 one-a of such section four hundred twenty-eight, the amount of tax to be 37 refunded shall be limited to the tax paid for a tax year commencing 38 subsequent to the end of the first twelve-month period of such registra- 39 tion. 40 f. Where the annual registration period applicable to a particular 41 class of motor vehicle begins and ends on the same dates for all motor 42 vehicles within such class, the tax payable to the commissioner of motor 43 vehicles pursuant to this section with respect to a motor vehicle within 44 such class which is registered or required to be registered after the 45 commencement of such annual registration period shall be determined for 46 such period as follows: 47 1. If such motor vehicle is registered or required to be registered 48 before the first day of the seventh month of such period, the tax shall 49 be the amount specified in subdivision a of section 11-802 of this chap- 50 ter. 51 2. If such motor vehicle is registered or required to be registered on 52 or after the first day of the seventh month of such period but before 53 the first day of the tenth month of such period, the tax shall be one- 54 half of the amount specified in subdivision a of section 11-802 of this 55 chapter.S. 8474 749 1 3. If such motor vehicle is registered or required to be registered on 2 or after the first day of the tenth month of such period, the tax shall 3 be one-fourth of the amount specified in subdivision a of section 11-802 4 of this chapter. 5 g. The provisions of subdivision b of section 11-808 of this chapter 6 shall apply to this section with such modifications or adaptations as 7 are necessary to carry out the purposes of this section and to ensure 8 collection of the appropriate annual tax specified in subdivision a of 9 section 11-802 of this chapter, and with due regard to the respective 10 responsibilities of the commissioner of finance and the commissioner of 11 motor vehicles under this section and to the definitions of "tax year" 12 contained in subdivision c of this section and subdivision fourteen of 13 section 11-801 of this chapter. The agreement between the commissioner 14 of finance and the commissioner of motor vehicles authorized by subdivi- 15 sion k of this section may contain such provisions concerning the divi- 16 sion of responsibility for collection of the taxes imposed by this chap- 17 ter and the granting of refunds or credits as are consistent with this 18 section and subdivision b of section 11-808 of this chapter, and the 19 commissioner of finance and the commissioner of motor vehicles may also 20 adopt such rules as they deem necessary for such purposes. 21 h. Notwithstanding any provision of section 11-807 of this chapter to 22 the contrary, at the time a tax is required to be paid to the commis- 23 sioner of motor vehicles pursuant to this section, the person required 24 to pay such tax shall file a return with the commissioner of motor vehi- 25 cles in such form and containing such information as he or she may 26 prescribe. The taxpayer's application for registration or the renewal 27 thereof shall constitute the return required under this subdivision 28 unless the commissioner of motor vehicles shall otherwise provide by 29 rule. A return filed pursuant to this subdivision with respect to a 30 motor vehicle for a tax year or years shall be in lieu of any return 31 otherwise required to be filed with respect thereto pursuant to section 32 11-807 of this chapter. 33 i. In any case in which the tax imposed by this chapter is required to 34 be paid to the commissioner of motor vehicles but is not so paid, the 35 commissioner of finance shall collect such tax and all of the provisions 36 of this chapter relating to collection of taxes by the commissioner of 37 finance shall apply with respect thereto. 38 j. Notwithstanding any provision of section four hundred of the vehi- 39 cle and traffic law to the contrary, in those cases in which the commis- 40 sioner of finance is responsible for collecting the tax imposed by this 41 chapter, the commissioner of motor vehicles shall not issue a certif- 42 icate of registration, plates or removable date tag for any motor vehi- 43 cle subject to such tax with respect to which the commissioner of 44 finance has notified the commissioner of motor vehicles that such tax 45 has not been paid, unless the registrant submits proof, in a form 46 approved by the commissioner of motor vehicles, that such tax has been 47 paid, or is not due, with respect to such motor vehicle. 48 k. The commissioner of finance is hereby authorized and empowered to 49 enter into an agreement with the commissioner of motor vehicles to 50 govern the collection of the taxes imposed by this chapter which are 51 required to be paid to the commissioner of motor vehicles pursuant to 52 this section. Such agreement shall provide for the exclusive method of 53 collection, custody and remittal to the commissioner of finance of the 54 proceeds of any such tax; for the payment by the city of the reasonable 55 expenses incurred by the department of motor vehicles in connection with 56 the collection of any such tax; for the commissioner of finance, or aS. 8474 750 1 duly designated representative, upon his or her request, not more 2 frequently than once in each calendar year at a time agreed upon by the 3 state comptroller, to audit the accuracy of the payments, distributions 4 and remittances to the city; and for such other matters as may be neces- 5 sary and proper to effectuate the purposes of such agreement. Such 6 agreement shall have the force and effect of a rule or regulation of the 7 commissioner of motor vehicles and shall be filed and published in 8 accordance with any statutory requirements relating thereto. 9 l. The commissioner of motor vehicles shall promptly notify the corpo- 10 ration counsel of the city of any litigation instituted against such 11 commissioner which challenges the constitutionality or validity of any 12 provision of this chapter, or of the enabling act pursuant to which it 13 was adopted, or which attempts to limit or question the application of 14 either such law, and such notification shall include copies of the 15 papers served upon such commissioner. 16 m. The commissioner of motor vehicles shall begin to collect taxes in 17 accordance with the provisions of this section at such time as is speci- 18 fied in the agreement between the commissioner of motor vehicles and the 19 commissioner of finance provided for in subdivision k of this section. 20 n. In addition to any other powers granted to the commissioner of 21 motor vehicles in this chapter or any other law, he or she is hereby 22 authorized and empowered: 1. to adopt and amend rules appropriate to 23 the carrying out of his or her responsibilities under this chapter; 2. 24 to request information concerning motor vehicles and persons subject to 25 the provisions of this chapter from the department of motor vehicles of 26 any other state, the treasury department of the United States or the 27 appropriate officials of any city or county of the state of New York; 28 and to afford such information to such department of motor vehicles, 29 treasury department or officials of such city or county, any provision 30 of this chapter to the contrary notwithstanding; 3. to delegate his or 31 her functions under this section to a deputy commissioner in the depart- 32 ment of motor vehicles or any employee of such department or to any 33 county clerk or other officer who acts as the agent of such commissioner 34 in the registration of motor vehicles; 4. to require all persons owning 35 motor vehicles with respect to which the tax imposed by this chapter is 36 payable to the commissioner of motor vehicles to keep such records as he 37 or she may prescribe and to furnish such information upon his or her 38 request; and 5. to extend, for cause shown, the time for filing any 39 return required to be filed with the commissioner of motor vehicles for 40 a period not exceeding sixty days. 41 o. To the extent that any provision of this section is in conflict 42 with any other provision of this chapter, the provisions of this section 43 shall be controlling, but in all other respects such other provisions of 44 this chapter shall remain fully applicable with respect to the imposi- 45 tion, administration and collection of the taxes imposed by this chap- 46 ter. 47 § 11-809.2 Collection of tax by the taxi and limousine commission on 48 behalf of the commissioner of finance. a. Notwithstanding any provision 49 of this chapter to the contrary, the tax imposed by this chapter on any 50 designated licensed vehicle, as defined in this subdivision, shall be 51 collected by the taxi and limousine commission on behalf of the commis- 52 sioner of finance. Except as otherwise provided by subdivision m of this 53 section, the owner of each such designated licensed vehicle shall pay 54 the tax due thereon to the taxi and limousine commission on or before 55 the date upon which such owner licenses or renews the license of such 56 designated licensed vehicle or is required to license or renew theS. 8474 751 1 license thereof pursuant to chapter five of title nineteen of the code 2 of the preceding municipality. For purposes of this section, the term 3 "designated licensed vehicle" shall mean a motor vehicle for the trans- 4 portation of passengers, other than a medallion taxicab, the tax on 5 which is not collected by the commissioner of motor vehicles pursuant to 6 section 11-809.1 of this chapter and which is licensed or required to be 7 licensed by the taxi and limousine commission pursuant to any provision 8 of chapter five of title nineteen of the code of the preceding munici- 9 pality. 10 b. Notwithstanding any provision of chapter five of title nineteen of 11 the code of the preceding municipality to the contrary, payment of the 12 tax with respect to a designated licensed vehicle shall be a condition 13 precedent to the licensing or license renewal of such designated 14 licensed vehicle with the taxi and limousine commission, and no such 15 license or renewal thereof shall be issued unless such tax has been 16 paid. Except as provided in subdivisions f and m of this section, if the 17 license period applicable to any such designated licensed vehicle is a 18 period of more than one year, the tax required to be paid pursuant to 19 this section shall be the annual tax specified in section 11-802 of this 20 chapter multiplied by the number of years in the license period. The 21 taxi and limousine commission, upon payment of the tax pursuant to this 22 section or upon the application of any person exempt therefrom, shall 23 furnish to each taxpayer paying the tax a receipt for such tax and to 24 each other taxpayer or exempt person a statement, document or other form 25 prescribed by the taxi and limousine commission, showing that such tax 26 has been paid or is not due with respect to such designated licensed 27 vehicle. 28 c. For purposes of this section, the term "tax period" shall mean the 29 license period applicable to the designated licensed vehicle under chap- 30 ter five of title nineteen of the code of the preceding municipality 31 and, in the case of a license period of other than one year, shall mean 32 the number of twelve-month periods and any period of less than twelve 33 months within such license period. The term "tax period" shall also 34 include any periods described in subparagraph (A) of paragraph one of 35 subdivision m of this section. 36 d. Except as provided in subdivision m of this section, where the tax 37 imposed by this chapter has been paid to the commissioner of finance 38 with respect to a motor vehicle for a tax year described in subdivision 39 fourteen of section 11-801 of this chapter, and subsequent thereto but 40 within such tax year the same taxpayer pays a tax to the taxi and limou- 41 sine commission with respect to such motor vehicle pursuant to this 42 section, such taxpayer shall be entitled to a refund or credit from the 43 commissioner of finance for the portion of the tax paid to the commis- 44 sioner of finance that is attributable to the period beginning on the 45 first day of the first tax period for which the tax is paid to the taxi 46 and limousine commission and ending on the following May thirty-first, 47 provided, however, that no such refund or credit shall be allowed if the 48 amount thereof is less than five dollars. Any refund or credit to which 49 a taxpayer is entitled pursuant to this subdivision shall be promptly 50 refunded or credited, without interest, by the commissioner of finance, 51 and the commissioner of finance may promulgate such rules as he or she 52 deems necessary to carry out the provisions of this subdivision. 53 e. If the license for the designated licensed vehicle is transferred, 54 surrendered or terminated for reasons other than revocation, and the 55 applicable license period under chapter five of title nineteen of the 56 code of the preceding municipality is for more than one year, and theS. 8474 752 1 tax paid to the taxi and limousine commission was for a tax period of 2 more than twelve months, except as otherwise provided in the agreement 3 between the taxi and limousine commission and the commissioner of 4 finance authorized pursuant to subdivision k of this section, the 5 commissioner of finance shall refund the tax paid for any twelve-month 6 period commencing subsequent to the transfer, surrender or other termi- 7 nation of the license described in this subdivision. 8 f. Except as provided in subdivision m of this section, for designated 9 licensed vehicles whose license period is a two year period that begins 10 and ends on the same dates, the tax payable to the taxi and limousine 11 commission pursuant to this section with respect to a designated 12 licensed vehicle that is licensed or required to be licensed after the 13 commencement of such license period shall be determined as follows: 14 1. If such designated licensed vehicle is licensed or required to be 15 licensed before the first day of the seventh month of such period, the 16 tax shall be the amount determined pursuant to subdivision b of this 17 section. 18 2. If such designated licensed vehicle is licensed or required to be 19 licensed on or after the first day of the seventh month of such period 20 but before the first day of the thirteenth month of such period, the tax 21 shall be three-fourths of the amount determined pursuant to subdivision 22 b of this section. 23 3. If such designated licensed vehicle is licensed or required to be 24 licensed on or after the first day of the thirteenth month but before 25 the first day of the nineteenth month of such period, the tax shall be 26 one-half of the amount determined pursuant to subdivision b of this 27 section. 28 4. If such designated licensed vehicle is licensed or required to be 29 licensed on or after the first day of the nineteenth month of such peri- 30 od, the tax shall be one-fourth of the amount determined pursuant to 31 subdivision b of this section. 32 5. When the license period described in this section is for a period 33 of less than two years, the commissioner of finance shall have the 34 authority to provide by rule the amount to be payable under this subdi- 35 vision. 36 g. The provisions of subdivision b of section 11-808 of this chapter 37 shall apply to this section with such modifications or adaptations as 38 are necessary to carry out the purposes of this section and to ensure 39 collection of the appropriate annual tax specified in subdivision a of 40 section 11-802 of this chapter, and with due regard to the respective 41 responsibilities of the commissioner of finance and the taxi and limou- 42 sine commission under this section and to the definition of "tax year" 43 contained in subdivision fourteen of section 11-801 of this chapter and 44 to the definition of "tax period" contained in subdivision c of this 45 section. The agreement between the commissioner of finance and the taxi 46 and limousine commission authorized by subdivision k of this section may 47 contain such provisions concerning the division of responsibility for 48 collection of the taxes imposed by this chapter and the granting of 49 refunds or credits as are consistent with this section and subdivision b 50 of section 11-808 of this chapter, and the commissioner of finance and 51 the taxi and limousine commission may also adopt such rules as they deem 52 necessary for such purposes. 53 h. Notwithstanding any provision of section 11-807 of this chapter to 54 the contrary, at the time a tax is required to be paid to the taxi and 55 limousine commission pursuant to this section, the person required to 56 pay such tax shall file a return with the taxi and limousine commissionS. 8474 753 1 in such form and containing such information as the taxi and limousine 2 commission may prescribe. The taxpayer's application for a license or 3 the renewal thereof shall constitute the return required under this 4 subdivision unless the taxi and limousine commission shall otherwise 5 provide by rule. A return filed pursuant to this subdivision with 6 respect to a designated licensed vehicle for a tax period or periods 7 shall be in lieu of any return otherwise required to be filed with 8 respect thereto pursuant to section 11-807 of this chapter. Unless the 9 taxi and limousine commission otherwise requires, the filing of a return 10 shall not be required for the tax periods described in subparagraph (A) 11 of paragraph one of subdivision m of this section. 12 i. In any case in which the tax imposed by this chapter is required to 13 be paid to the taxi and limousine commission but is not so paid, the 14 commissioner of finance shall collect such tax and all of the provisions 15 of this chapter relating to collection of taxes by the commissioner of 16 finance shall apply with respect thereto. 17 j. Notwithstanding any provision of chapter five of title nineteen of 18 the code of the preceding municipality to the contrary, in those cases 19 in which the commissioner of finance is responsible for collecting the 20 tax imposed by this chapter, the taxi and limousine commission shall not 21 issue or renew a license for any designated licensed vehicle subject to 22 such tax with respect to which the commissioner of finance has notified 23 the taxi and limousine commission that such tax has not been paid, 24 unless the applicant for such license or renewal submits proof, in a 25 form approved by the taxi and limousine commission, that such tax has 26 been paid, or is not due, with respect to such designated licensed vehi- 27 cle. 28 k. The commissioner of finance is hereby authorized and empowered to 29 enter into an agreement with the taxi and limousine commission to govern 30 the collection of the taxes imposed by this chapter which are required 31 to be paid to the taxi and limousine commission pursuant to this 32 section. Such agreement may provide for the exclusive method of 33 collection, custody and remittal to the commissioner of finance of the 34 proceeds of any such tax; for the payment by the commissioner of finance 35 of reasonable expenses incurred by the taxi and limousine commission in 36 connection with the collection of any such tax; for the commissioner of 37 finance, or a duly designated representative, upon his or her request, 38 not more frequently than once in each calendar year at a time agreed 39 upon by the city comptroller, to audit the accuracy of the payments, 40 distributions and remittances to the commissioner of finance; and for 41 such other matters as may be necessary and proper to effectuate the 42 purposes of such agreement. 43 l. The taxi and limousine commission shall promptly notify the corpo- 44 ration counsel of the city and the commissioner of finance of any liti- 45 gation instituted against such commission which challenges the constitu- 46 tionality or validity of any provision of this chapter, or which 47 attempts to limit or question the application of this chapter, and such 48 notification shall include copies of the papers served upon such commis- 49 sion. 50 m. Except as otherwise provided in the agreement between the taxi and 51 limousine commission and the commissioner of finance authorized by 52 subdivision k of this section, or with respect to the periods described 53 in paragraph two of this subdivision, the taxi and limousine commission 54 shall begin to collect taxes in accordance with the provisions of this 55 section on the first day of April in the year two thousand twelve as 56 follows:S. 8474 754 1 1. The tax due on a designated licensed vehicle, the license for which 2 expires on or after the first day of June in the year two thousand 3 twelve and before the first day of June in the year two thousand four- 4 teen, shall be determined as follows: 5 (A) For a designated licensed vehicle whose license expires on or 6 after the first day of June in the year two thousand twelve and before 7 the first day of June in the year two thousand fourteen, the amount of 8 tax for the tax period between the first day of June in the year two 9 thousand twelve and the date the license shall expire for such desig- 10 nated licensed vehicle pursuant to chapter five of title nineteen of the 11 code of the preceding municipality shall be the sum of (i) the annual 12 tax specified in subparagraph (C) of paragraph two of subdivision a of 13 section 11-802 of this chapter for any twelve-month period within such 14 tax period, and (ii) the amount determined under subparagraph (B) of 15 this paragraph for any period of less than twelve months within such tax 16 period. The amount of tax so determined shall be payable on or before 17 the first day of June in the year two thousand twelve. In the event the 18 amount of tax due and payable under this subparagraph shall not have 19 been paid within thirty days of the first day of June in the year two 20 thousand twelve, the taxi and limousine commission shall suspend the 21 license for such designated licensed vehicle, and the license for any 22 such designated licensed vehicle which has expired shall not be renewed 23 until such time as such tax is paid. 24 (B) For purposes of subparagraph (A) of this paragraph, the amount of 25 tax for a period of less than twelve months shall be determined as 26 follows: (i) if such period is nine months or more, the amount for such 27 period shall be the full amount of annual tax provided in subparagraph 28 (C) of paragraph two of subdivision a of section 11-802 of this chapter; 29 (ii) if such period is more than six months but less than nine months, 30 the amount for such period shall be three-fourths of the amount of annu- 31 al tax provided in subparagraph (C) of paragraph two of subdivision a of 32 section 11-802 of this chapter; (iii) if such period is more than three 33 months but less than six months, the amount for such period shall be 34 one-half of the amount of annual tax provided in subparagraph (C) of 35 paragraph two of subdivision a of section 11-802 of this chapter; and 36 (iv) if such period is less than three months, the amount for such peri- 37 od shall be one-fourth of the amount of annual tax provided in subpara- 38 graph (C) of paragraph two of subdivision a of section 11-802 of this 39 chapter. 40 2. Upon the date for payment set forth in subparagraph (A) of para- 41 graph one of this subdivision, the taxi and limousine commission shall 42 require the taxpayer to provide a proof of payment of the tax to the 43 commissioner of finance for the period beginning on the first day of 44 June in the year two thousand eleven and ending on the thirty-first day 45 of May in the year two thousand twelve or any part of such period for 46 which the taxpayer was subject to the tax. In the event the taxpayer has 47 not paid such tax to the commissioner of finance: (i) the license for 48 any designated licensed vehicle described in subparagraph (A) of this 49 paragraph shall not be renewed until such time as such tax, together 50 with any applicable interest or penalties, has been paid to the commis- 51 sioner of finance and (ii) if such tax remains unpaid as of the end of 52 the thirty-day period set forth in subparagraph (A) of paragraph one of 53 this subdivision, the license for any designated licensed vehicle 54 described in subparagraph (A) of paragraph one of this subdivision shall 55 be suspended until such time as such tax, together with any applicable 56 interest or penalties, is paid to the commissioner of finance.S. 8474 755 1 n. In addition to any other powers granted to the taxi and limousine 2 commission in this chapter or any other law, the taxi and limousine 3 commission is hereby authorized and empowered: 4 1. to adopt and amend rules appropriate to the carrying out of its 5 responsibilities under this chapter; 6 2. to request information concerning motor vehicles and persons 7 subject to the provisions of this chapter from the commissioner of motor 8 vehicles, the department of motor vehicles of any other state, the trea- 9 sury department of the United States or the appropriate officials of any 10 city or county of the state of New York; and to afford such information 11 to such department of motor vehicles, treasury department or officials 12 of such city or county, any provision of this chapter to the contrary 13 notwithstanding; 14 3. to delegate its functions under this section to any commissioner or 15 employee of such commission; 16 4. to require any person who is an owner, as defined in chapter five 17 of title nineteen of the code of the preceding municipality, of a desig- 18 nated licensed vehicle to keep such records as it prescribes and to 19 furnish such information upon its request; and 20 5. to extend, for cause shown, the time for filing any return required 21 to be filed with the taxi and limousine commission for a period not 22 exceeding sixty days. 23 o. To the extent that any provision of this section is in conflict 24 with any other provision of this chapter, the provisions of this section 25 shall be controlling, but in all other respects such other provisions of 26 this chapter shall remain fully applicable with respect to the imposi- 27 tion, administration and collection of the taxes imposed by this chap- 28 ter. 29 § 11-810 Determination of tax. If a return required by this chapter is 30 not filed, or if a return when filed is incorrect or insufficient, the 31 commissioner of finance shall determine the amount of tax due from such 32 information as may be obtainable and, if necessary, may estimate the tax 33 on the basis of external indices such as motor vehicle registration with 34 the department of motor vehicles and/or any other factors. Notice of 35 such determination shall be given to the person liable for the payment 36 of the tax. Such determination shall finally and irrevocably fix the tax 37 unless the person against whom it is assessed, within ninety days after 38 the giving of notice of such determination or, if the commissioner of 39 finance has established a conciliation procedure pursuant to section 40 11-124 of this title and the taxpayer has requested a conciliation 41 conference in accordance therewith, within ninety days from the mailing 42 of a conciliation decision or the date of the commissioner's confirma- 43 tion of the discontinuance of the conciliation proceeding, both (1) 44 serves a petition upon the commissioner of finance and (2) files a peti- 45 tion with the tax appeals tribunal for a hearing, or unless the commis- 46 sioner of finance of his or her own motion shall redetermine the same. 47 Such hearing and any appeal to the tax appeals tribunal sitting en banc 48 from the decision rendered in such hearing shall be conducted in the 49 manner and subject to the requirements prescribed by the tax appeals 50 tribunal pursuant to sections one hundred sixty-eight through one 51 hundred seventy-two of the charter of the preceding municipality as it 52 existed January first, nineteen hundred ninety-four. After such hearing 53 the tax appeals tribunal shall give notice of its decision to the person 54 against whom the tax is assessed and to the commissioner of finance. A 55 decision of the tax appeals tribunal sitting en banc shall be reviewable 56 for error, illegality or unconstitutionality or any other reason whatso-S. 8474 756 1 ever by a proceeding under article seventy-eight of the civil practice 2 law and rules if application therefor is made to the supreme court by 3 the person against whom the tax was assessed within four months after 4 the giving of the notice of such tax appeals tribunal decision. A 5 proceeding under article seventy-eight of the civil practice law and 6 rules shall not be instituted by a taxpayer unless: (a) the amount of 7 any tax sought to be reviewed, with penalties and interest thereon, if 8 any, shall be first deposited with the commissioner of finance and there 9 shall be filed with the commissioner of finance an undertaking, issued 10 by a surety company authorized to transact business in this state and 11 approved by the superintendent of insurance of this state as to solvency 12 and responsibility, in such amount and with such sureties as a justice 13 of the supreme court shall approve, to the effect that if such proceed- 14 ing be dismissed or the tax confirmed, the taxpayer will pay all costs 15 and charges which may accrue in the prosecution of the proceeding, or 16 (b) at the option of the taxpayer such undertaking filed with the 17 commissioner of finance may be in a sum sufficient to cover the taxes, 18 penalties and interest thereon stated in such decision plus the costs 19 and charges which may accrue against it in the prosecution of the 20 proceeding, in which event the taxpayer shall not be required to deposit 21 such taxes, penalties and interest as a condition precedent to the 22 application. 23 § 11-811 Refunds. a. In the manner provided in this section the 24 commissioner of finance shall refund or credit, without interest, any 25 tax, penalty or interest erroneously, illegally or unconstitutionally 26 collected or paid, if written application to the commissioner of finance 27 for such refund shall be made within one year from the payment thereof. 28 Whenever a refund or credit is made or denied, the commissioner of 29 finance shall state his or her reason therefor and give notice thereof 30 to the taxpayer in writing. The commissioner of finance may, in lieu of 31 any refund required to be made, allow credit therefor on payments due 32 from the applicant. 33 b. Any determination of the commissioner of finance denying a refund 34 or credit pursuant to subdivision a of this section shall be final and 35 irrevocable unless the applicant for such refund or credit, within nine- 36 ty days from the mailing or notice of such determination, or, if the 37 commissioner of finance has established a conciliation procedure pursu- 38 ant to section 11-124 of this title and the applicant has requested a 39 conciliation conference in accordance therewith, within ninety days from 40 the mailing of a conciliation decision or the date of the commissioner's 41 confirmation of the discontinuance of the conciliation proceeding, both 42 (1) serves a petition upon the commissioner of finance and (2) files a 43 petition with the tax appeals tribunal for a hearing. Such petition for 44 a refund or credit, made as herein provided, shall be deemed an applica- 45 tion for a revision of any tax, penalty or interest complained of. Such 46 hearing and any appeal to the tax appeals tribunal sitting en banc from 47 the decision rendered in such hearing shall be conducted in the manner 48 and subject to the requirements prescribed by the tax appeals tribunal 49 pursuant to sections one hundred sixty-eight through one hundred seven- 50 ty-two of the charter of the preceding municipality as it existed Janu- 51 ary first, nineteen hundred ninety-four. After such hearing, the tax 52 appeals tribunal shall give notice of its decision to the applicant and 53 to the commissioner of finance. The applicant shall be entitled to 54 institute a proceeding pursuant to article seventy-eight of the civil 55 practice law and rules to review a decision of the tax appeals tribunal 56 sitting en banc if application to the supreme court be made thereforS. 8474 757 1 within four months after the giving of notice of such decision, and 2 provided, in the case of an application by a taxpayer, that a final 3 determination of tax due was not previously made. Such a proceeding 4 shall not be instituted by a taxpayer, unless an undertaking shall first 5 be filed with the commissioner of finance in such amount and with such 6 sureties as a justice of the supreme court shall approve, to the effect 7 that if such proceeding be dismissed or the tax confirmed, the taxpayer 8 will pay all costs and charges which may accrue in the prosecution of 9 the proceeding. 10 c. A person shall not be entitled to a revision, refund or credit 11 under this section of a tax, interest or penalty which had been deter- 12 mined to be due pursuant to the provisions of section 11-810 of this 13 chapter where such person has had a hearing or an opportunity for a 14 hearing, as provided in said section, or has failed to avail himself or 15 herself of the remedies therein provided. No refund or credit shall be 16 made of a tax, interest or penalty paid after a determination by the 17 commissioner of finance made pursuant to section 11-810 of this chapter 18 unless it be found that such determination was erroneous, illegal or 19 unconstitutional or otherwise improper, by the tax appeals tribunal 20 after a hearing or on the commissioner's own motion, or, if such tax 21 appeals tribunal affirms in whole or in part the determination of the 22 commissioner of finance, in a proceeding under article seventy-eight of 23 the civil practice law and rules, pursuant to the provisions of said 24 section, in which event refund or credit without interest shall be made 25 of the tax, interest or penalty found to have been overpaid. 26 § 11-812 Remedies exclusive. The remedies provided by this chapter 27 shall be the exclusive remedies available to any person for the review 28 of tax liability imposed by this chapter; and no determination or 29 proposed determination of tax or determination on any application for 30 refund by the commissioner of finance, nor any decision by the tax 31 appeals tribunal or any of its administrative law judges, shall be 32 enjoined or reviewed by an action for declaratory judgment, an action 33 for money had and received or by any action or proceeding other than, in 34 the case of a decision by the tax appeals tribunal sitting en banc, a 35 proceeding under article seventy-eight of the civil practice law and 36 rules; provided, however, that a taxpayer may proceed by declaratory 37 judgment if the taxpayer institutes suit within thirty days after a 38 deficiency assessment is made and pays the amount of the deficiency 39 assessment to the commissioner of finance prior to the institution of 40 such suit and posts a bond for costs as provided in section 11-810 of 41 this chapter. 42 § 11-813 Reserves. In cases where the taxpayer has applied for a 43 refund and has instituted a proceeding under article seventy-eight of 44 the civil practice law and rules to review a determination adverse to 45 the taxpayer on his or her application for refund, the comptroller shall 46 set up appropriate reserves to meet any decision adverse to the city. 47 § 11-814 Proceedings to recover tax. a. Whenever any person shall 48 fail to pay any tax or penalty or interest imposed by this chapter as 49 herein provided, the corporation counsel shall, upon the request of the 50 commissioner of finance, bring or cause to be brought an action to 51 enforce payment of the same against the person liable for the same on 52 behalf of the city of Staten Island in any court of the state of New 53 York or of any other state or of the United States. If, however, the 54 commissioner of finance in his or her discretion believes that a taxpay- 55 er subject to the provisions of this chapter is about to cease business, 56 leave the state or remove or dissipate the assets out of which tax orS. 8474 758 1 penalties might be satisfied and that any such tax or penalty will not 2 be paid when due, the commissioner may declare such tax or penalty to be 3 immediately due and payable and may issue a warrant immediately. 4 b. As an additional or alternate remedy, the commissioner of finance 5 may issue a warrant, directed to the city sheriff commanding the sheriff 6 to levy upon and sell the real and personal property of such person 7 which may be found within the city, for the payment of the amount there- 8 of, with any penalties and interest, and the cost of executing the 9 warrant, and to return such warrant to the commissioner of finance and 10 to pay to the commissioner the money collected by virtue thereof within 11 sixty days after the receipt of such warrant. The city sheriff shall, 12 within five days after the receipt of the warrant, file with the county 13 clerk a copy thereof, and thereupon such clerk shall enter in the judge- 14 ment docket the name of the person mentioned in the warrant and the 15 amount of the tax, penalties and interest for which the warrant is 16 issued and the date when such copy is filed. Thereupon the amount of 17 such warrant so docketed shall become a lien upon the title to and 18 interest in real and personal property of the person against whom the 19 warrant is issued. The city sheriff shall then proceed upon the warrant 20 in the same manner and with like effect as that provided by law in 21 respect to executions issued against property upon judgments of a court 22 of record, and for services in executing the warrant the sheriff shall 23 be entitled to the same fees which he or she may collect in the same 24 manner. In the discretion of the commissioner of finance a warrant of 25 like terms, force and effect may be issued and directed to any officer 26 or employee of the department of finance, and in the execution thereof 27 such officer or employee shall have all the powers conferred by law upon 28 sheriffs, but such officer or employee shall be entitled to no fee or 29 compensation in excess of the actual expenses paid in the performance of 30 such duty. If a warrant is returned not satisfied in full, the commis- 31 sioner of finance may from time to time issue new warrants and shall 32 also have the same remedies to enforce the amount due thereunder as if 33 the city had recovered judgment therefor and execution thereon had been 34 returned unsatisfied. 35 c. Whenever there is made a sale, transfer or assignment in bulk of 36 any part or the whole of a stock of merchandise or of fixtures, or 37 merchandise and of fixtures pertaining to the conducting of the business 38 of the seller, transferor or assignor, otherwise than in the ordinary 39 course of trade and in the regular prosecution of said business, the 40 purchaser, transferee or assignee shall at least ten days before taking 41 possession of such merchandise, fixtures, or merchandise and fixtures, 42 or paying therefor, notify the commissioner of finance by registered 43 mail of the proposed sale and of the price, terms and conditions thereof 44 whether or not the seller, transferor or assignor, has represented to, 45 or informed the purchaser, transferee or assignee that it owes any tax 46 pursuant to this chapter and whether or not the purchaser, transferee or 47 assignee has knowledge that such taxes are owing, and whether any such 48 taxes are in fact owing. 49 Whenever the purchaser, transferee or assignee shall fail to give 50 notice to the commissioner of finance as required by the opening para- 51 graph of this subdivision, or whenever the commissioner of finance shall 52 inform the purchaser, transferee or assignee that a possible claim for 53 such tax or taxes exists, any sums of money, property or choses in 54 action, or other consideration, which the purchaser, transferee or 55 assignee is required to transfer over to the seller, transferor or 56 assignor shall be subject to a first priority right and lien for anyS. 8474 759 1 such taxes theretofore or thereafter determined to be due from the sell- 2 er, transferor or assignor to the city, and the purchaser, transferee or 3 assignee is forbidden to transfer to the seller, transferor or assignor 4 any such sums of money, property or choses in action to the extent of 5 the amount of the city's claim. For failure to comply with the 6 provisions of this subdivision, the purchaser, transferee or assignee, 7 in addition to being subject to the liabilities and remedies imposed 8 under the provisions of former section forty-four of the personal prop- 9 erty law, shall be personally liable for the payment to the city of any 10 such taxes theretofore or thereafter determined to be due to the city 11 from the seller, transferor or assignor, and such liability may be 12 assessed and enforced in the same manner as the liability for tax under 13 this chapter. 14 d. The commissioner of finance, if he or she finds that the interests 15 of the city will not thereby be jeopardized, and upon such conditions as 16 the commissioner of finance may require, may release any property from 17 the lien of any warrant or vacate such warrant for unpaid taxes, addi- 18 tions to tax, penalties and interest filed pursuant to subdivision b of 19 this section, and such release or vacating of the warrant may be 20 recorded in the office of any recording officer in which such warrant 21 has been filed. The clerk shall thereupon cancel and discharge as of the 22 original date of docketing the vacated warrant. 23 § 11-815 General powers of the commissioner of finance. In addition 24 to all other powers granted to the commissioner of finance in this chap- 25 ter, the commissioner is hereby authorized and empowered: 26 1. To make, adopt and amend rules and regulations appropriate to the 27 carrying out of this chapter and the purposes thereof; 28 2. To extend, for cause shown, the time for filing any kind of return 29 for a period not exceeding sixty days; and to compromise disputed claims 30 in connection with the taxes hereby imposed; 31 3. To request information concerning motor vehicles and persons 32 subject to the provisions of this chapter from the department of motor 33 vehicles and from the department of taxation and finance of the state of 34 New York or any successor to their duties, or the treasury department of 35 the United States relative to any person; and to afford information to 36 such department of motor vehicles, department of taxation and finance or 37 any successor to their duties, or to such treasury department relative 38 to any person, any other provision of this chapter to the contrary 39 notwithstanding; 40 4. To delegate the commissioner's functions hereunder to a deputy 41 commissioner of finance or any employee or employees of the department 42 of finance; 43 5. To assess, reassess, determine, revise and readjust the taxes 44 imposed under this chapter; 45 6. To provide methods for identifying motor vehicles not subject to or 46 exempt from the tax imposed under this chapter; 47 7. To provide that a certificate of registration need not be filed 48 with respect to any or all types of motor vehicles, or to provide that 49 such certificate of registration with respect to any or all types of 50 motor vehicles shall be contained on or combined with any return or 51 supplemental return required to be filed under this chapter. 52 § 11-816 Administration of oaths and compelling testimony. a. The 53 commissioner of finance, the commissioner's employees duly designated 54 and authorized by the commissioner, the tax appeals tribunal and any of 55 its duly designated and authorized employees shall have power to admin- 56 ister oaths and take affidavits in relation to any matter or proceedingS. 8474 760 1 in the exercise of their powers and duties under this chapter. The 2 commissioner of finance and the tax appeals tribunal shall have power to 3 subpoena and require the attendance of witnesses and the production of 4 books, papers and documents to secure information pertinent to the 5 performance of the duties of the commissioner or of the tax appeals 6 tribunal hereunder and of the enforcement of this chapter and to examine 7 them in relation thereto, and to issue commissions for the examination 8 of witnesses who are out of the state or unable to attend before the 9 commissioner or the tax appeals tribunal or excused from attendance. 10 b. A justice of the supreme court either in court or at chambers shall 11 have power summarily to enforce by proper proceedings the attendance and 12 testimony of witnesses and the production and examination of books, 13 papers and documents called for by the subpoena of the commissioner of 14 finance or the tax appeals tribunal under this chapter. 15 c. Cross-reference; criminal penalties. For failure to obey subpoenas 16 or for testifying falsely, see section 11-4007 of the code of the 17 preceding municipality; for supplying false or fraudulent information, 18 see section 11-4009 of the code of the preceding municipality. 19 d. The officers who serve the summons or subpoena of the commissioner 20 of finance or the tax appeals tribunal hereunder and witnesses attending 21 in response thereto shall be entitled to the same fees as are allowed to 22 officers and witnesses in civil cases in courts of record, except as 23 herein otherwise provided. Such officers shall be the city sheriff, and 24 the sheriff's duly appointed deputies or any officers or employees of 25 the department of finance or the tax appeals tribunal, designated to 26 serve such process. 27 § 11-817 Interest and penalties. (a) Interest on underpayments. If 28 any amount of tax is not paid on or before the last date prescribed for 29 payment, without regard to any extension of time granted for payment, 30 interest on such amount at the rate set by the commissioner of finance 31 pursuant to subdivision (g) of this section, or, if no rate is set, at 32 the rate of seven and one-half percent per annum, shall be paid for the 33 period from such last date to the date of payment. In computing the 34 amount of interest to be paid, such interest shall be compounded daily. 35 Interest under this subdivision shall not be paid if the amount thereof 36 is less than one dollar. 37 (b) (1) Failure to file return. (A) In case of failure to file a 38 return under this chapter on or before the prescribed date, determined 39 with regard to any extension of time for filing, unless it is shown that 40 such failure is due to reasonable cause and not due to willful neglect, 41 there shall be added to the amount required to be shown as tax on such 42 return five percent of the amount of such tax if the failure is for not 43 more than one month, with an additional five percent for each additional 44 month or fraction thereof during which such failure continues, not 45 exceeding twenty-five percent in the aggregate. 46 (B) In the case of a failure to file a return of tax within sixty days 47 of the date prescribed for filing of such return, determined with regard 48 to any extension of time for filing, unless it is shown that such fail- 49 ure is due to reasonable cause and not due to willful neglect, the addi- 50 tion to tax under subparagraph (A) of this paragraph shall not be less 51 than the lesser of one hundred dollars or one hundred percent of the 52 amount required to be shown as tax on such return. 53 (C) For purposes of this paragraph, the amount of tax required to be 54 shown on the return shall be reduced by the amount of any part of the 55 tax which is paid on or before the date prescribed for payment of theS. 8474 761 1 tax and by the amount of any credit against the tax which may be claimed 2 upon the return. 3 (2) Failure to pay tax shown on return. In case of failure to pay the 4 amount shown as tax on a return required to be filed under this chapter 5 on or before the prescribed date, determined with regard to any exten- 6 sion of time for payment, unless it is shown that such failure is due to 7 reasonable cause and not due to willful neglect, there shall be added to 8 the amount shown as tax on such return one-half of one percent of the 9 amount of such tax if the failure is not for more than one month, with 10 an additional one-half of one percent for each additional month or frac- 11 tion thereof during which such failure continues, not exceeding twenty- 12 five percent in the aggregate. For the purpose of computing the addition 13 for any month the amount of tax shown on the return shall be reduced by 14 the amount of any part of the tax which is paid on or before the begin- 15 ning of such month and by the amount of any credit against the tax which 16 may be claimed upon the return. If the amount of tax required to be 17 shown on a return is less than the amount shown as tax on such return, 18 this paragraph shall be applied by substituting such lower amount. 19 (3) Failure to pay tax required to be shown on return. In case of 20 failure to pay any amount in respect of any tax required to be shown on 21 a return required to be filed under this chapter which is not so shown, 22 including a determination made pursuant to section 11-810 of this chap- 23 ter, within ten days of the date of a notice and demand therefor, unless 24 it is shown that such failure is due to reasonable cause and not due to 25 willful neglect, there shall be added to the amount of tax stated in 26 such notice and demand one-half of one percent of such tax if the fail- 27 ure is not for more than one month, with an additional one-half of one 28 percent for each additional month or fraction thereof during which such 29 failure continues, not exceeding twenty-five percent in the aggregate. 30 For the purpose of computing the addition for any month, the amount of 31 tax stated in the notice and demand shall be reduced by the amount of 32 any part of the tax which is paid before the beginning of such month. 33 (4) Limitations on additions. 34 (A) With respect to any return, the amount of the addition under para- 35 graph one of this subdivision shall be reduced by the amount of the 36 addition under paragraph two of this subdivision for any month to which 37 an addition applies under both such paragraphs one and two. In any case 38 described in subparagraph (B) of paragraph one of this subdivision, the 39 amount of the addition under such paragraph one shall not be reduced 40 below the amount provided in such subparagraph. 41 (B) With respect to any return, the maximum amount of the addition 42 permitted under paragraph three of this subdivision shall be reduced by 43 the amount of the addition under paragraph one of this subdivision, 44 determined without regard to subparagraph (B) of such paragraph one, 45 which is attributable to the tax for which the notice and demand is made 46 and which is not paid within ten days of such notice and demand. 47 (c) Underpayment due to negligence. (1) If any part of an underpayment 48 of tax is due to negligence or intentional disregard of this chapter or 49 any rules or regulations hereunder, but without intent to defraud, there 50 shall be added to the tax a penalty equal to five percent of the under- 51 payment. 52 (2) There shall be added to the tax, in addition to the amount deter- 53 mined under paragraph one of this subdivision, an amount equal to fifty 54 percent of the interest payable under subdivision (a) of this section 55 with respect to the portion of the underpayment described in such para- 56 graph one which is attributable to the negligence or intentional disre-S. 8474 762 1 gard referred to in such paragraph one, for the period beginning on the 2 last date prescribed by law for payment of such underpayment, determined 3 without regard to any extension, and ending on the date of the assess- 4 ment of the tax, or, if earlier, the date of the payment of the tax. 5 (d) Underpayment due to fraud. (1) If any part of an underpayment of 6 tax is due to fraud, there shall be added to the tax a penalty equal to 7 fifty percent of the underpayment. 8 (2) There shall be added to the tax, in addition to the penalty deter- 9 mined under paragraph one of this subdivision, an amount equal to fifty 10 percent of the interest payable under subdivision (a) of this section 11 with respect to the portion of the underpayment described in such para- 12 graph one which is attributable to fraud, for the period beginning on 13 the last day prescribed by law for payment of such underpayment, deter- 14 mined without regard to any extension, and ending on the date of the 15 assessment of the tax, or, if earlier, the date of the payment of the 16 tax. 17 (3) The penalty under this subdivision shall be in lieu of any other 18 addition to tax imposed by subdivision (b) or (c) of this section. 19 (e) Additional penalty. Any person who, with fraudulent intent, shall 20 fail to pay any tax imposed by this chapter, or to make, render, sign or 21 certify any return, or to supply any information within the time 22 required by or under this chapter, shall be liable for a penalty of not 23 more than one thousand dollars, in addition to any other amounts 24 required under this chapter to be imposed, assessed and collected by the 25 commissioner of finance. The commissioner of finance shall have the 26 power, in his or her discretion, to waive, reduce or compromise any 27 penalty under this subdivision. 28 (f) The interest and penalties imposed by this section shall be paid 29 and disposed of in the same manner as other revenues from this subchap- 30 ter. Unpaid interest and penalties may be enforced in the same manner as 31 the tax imposed by this chapter. 32 (g) (1) Authority to set interest rates. The commissioner of finance 33 shall set the rate of interest to be paid pursuant to subdivision (a) of 34 this section, but if no such rate of interest is set, such rate shall be 35 deemed to be set at seven and one-half percent per annum. Such rate 36 shall be the rate prescribed in paragraph two of this subdivision but 37 shall not be less than seven and one-half percent per annum. Any such 38 rate set by the commissioner of finance shall apply to taxes, or any 39 portion thereof, which remain or become due on or after the date on 40 which such rate becomes effective and shall apply only with respect to 41 interest computed or computable for periods or portions of periods 42 occurring in the period in which such rate is in effect. 43 (2) General rule. The rate of interest set under this subdivision 44 shall be the sum of (i) the federal short-term rate as provided under 45 paragraph three of this subdivision, plus (ii) seven percentage points. 46 (3) Federal short-term rate. For purposes of this subdivision: 47 (A) The federal short-term rate for any month shall be the federal 48 short-term rate determined by the United States secretary of the treas- 49 ury during such month in accordance with subsection (d) of section 50 twelve hundred seventy-four of the internal revenue code for use in 51 connection with section six thousand six hundred twenty-one of the 52 internal revenue code. Any such rate shall be rounded to the nearest 53 full percent, or, if a multiple of one-half of one percent, such rate 54 shall be increased to the next highest full percent. 55 (B) Period during which rate applies.S. 8474 763 1 (i) In general. Except as provided in clause (ii) of this subpara- 2 graph, the federal short-term rate for the first month in each calendar 3 quarter shall apply during the first calendar quarter beginning after 4 such month. 5 (ii) Special rule for the month of September, nineteen hundred eight- 6 y-nine. The federal short-term rate for the month of April, nineteen 7 hundred eighty-nine shall apply with respect to setting the rate of 8 interest for the month of September, nineteen hundred eighty-nine. 9 (4) Publication of interest rate. The commissioner of finance shall 10 cause to be published in the City Record, and give other appropriate 11 general notice of, the interest rate to be set under this subdivision no 12 later than twenty days preceding the first day of the calendar quarter 13 during which such interest rate applies. The setting and publication of 14 such interest rate shall not be included within paragraph (a) of subdi- 15 vision five of section one thousand forty-one of the city charter of the 16 preceding municipality as it existed January first, nineteen hundred 17 ninety-four relating to the definition of a rule. 18 (h) Miscellaneous. (1) The certificate of the commissioner of finance 19 to the effect that a tax has not been paid, that a motor vehicle has not 20 been registered, that a return has not been filed, or that information 21 has not been supplied pursuant to the provisions of this chapter, shall 22 be presumptive evidence thereof. 23 (2) Cross-reference: For criminal penalties, see chapter forty of this 24 title. 25 § 11-818 Information and records to be secret. a. Except in accord- 26 ance with proper judicial order, or as otherwise provided by law, it 27 shall be unlawful for the commissioner of finance, the tax appeals 28 tribunal, any other agency, officer or employee of the city, the commis- 29 sioner of motor vehicles, any officer or employee of the department of 30 motor vehicles, any agent of the commissioner of motor vehicles, or any 31 other person who, pursuant to this section, is permitted to inspect any 32 registration or return filed pursuant to this chapter, or to whom a 33 copy, an abstract or portion of any registration or return filed pursu- 34 ant to this chapter is furnished, or to whom any information contained 35 in any registration or return filed pursuant to this chapter is 36 furnished, to divulge or make known in any manner any information relat- 37 ing to or contained in any registration or any kind of return filed 38 pursuant to this chapter. The officers charged with the custody of such 39 registration and returns pertaining to the tax assessed pursuant to this 40 chapter shall not be required to produce any of them or evidence of 41 anything contained in them in any action or proceeding in any court, 42 except on behalf of the city, the commissioner of finance, the state or 43 the commissioner of motor vehicles, in an action or proceeding under the 44 provisions of this chapter, or on behalf of any party to any action or 45 proceeding under the provisions of this chapter when the registration, 46 return or facts shown therein are directly involved in such action or 47 proceeding, in either of which events, the court may require the 48 production of, and may admit in evidence, so much of said registration, 49 return, or of the facts shown therein, as are pertinent to the action or 50 proceeding and no more. The commissioner of finance may, nevertheless, 51 publish a copy or a summary of any determination or decision rendered 52 after a formal hearing held pursuant to section 11-810 or 11-811 of this 53 chapter. Nothing herein shall be construed to prohibit the delivery to a 54 person or such person's duly authorized representative of a certified 55 copy of any registration or return filed by such person; nor to prohibit 56 the delivery of any original return, with any notation that the commis-S. 8474 764 1 sioner of finance or the commissioner of motor vehicles may cause to be 2 made thereon, to the person filing the return, whether such person files 3 the return on his or her own behalf or on behalf of another, or to the 4 person on whose behalf the return is filed; nor to prohibit the commis- 5 sioner of finance from providing by rule for the display or production 6 of any original return, as an indicium of payment of the tax imposed by 7 this chapter; nor to prohibit the publication of statistics so classi- 8 fied as to prevent the identification of particular registrations and 9 returns and the items thereof; nor to prohibit the delivery of a certi- 10 fied copy of any registration or return to the United States of America 11 or any department thereof, the state of New York or any department ther- 12 eof, the city of New York or any department thereof provided it is 13 requested for official business, nor to prohibit the inspection by the 14 corporation counsel or other legal representatives of the city, the 15 attorney general of the state of New York or other legal representatives 16 of the department of motor vehicles, or by the district attorney of any 17 county within the city of the registration or return of any person who 18 shall bring action to set aside or review any tax assessed pursuant to 19 this section, or against whom an action or proceeding under this chapter 20 is instituted. Returns, or reproductions thereof, pertaining to any 21 motor vehicle registered pursuant to this section shall be preserved for 22 three years and thereafter until the commissioner of finance or the 23 commissioner of motor vehicles permits them to be destroyed. 24 b. (1) Any officer or employee of the city or the state of New York 25 who willfully violates the provisions of subdivision a of this section 26 shall be dismissed from office and be incapable of holding any public 27 office in this city or the state of New York for a period of five years 28 thereafter. 29 (2) Cross-reference: For criminal penalties, see chapter forty of this 30 title. 31 c. This section shall be deemed a state statute for purposes of para- 32 graph (a) of subdivision two of section eighty-seven of the public offi- 33 cers law. 34 d. Notwithstanding anything in subdivision a of this section to the 35 contrary, if a taxpayer has petitioned the tax appeals tribunal for 36 administrative review as provided in section one hundred seventy of the 37 charter of the preceding municipality as it existed January first, nine- 38 teen hundred ninety-four, the commissioner of finance shall be author- 39 ized to present to the tribunal any report or return of such taxpayer, 40 or any information contained therein or relating thereto, which may be 41 material or relevant to the proceeding before the tribunal. The tax 42 appeals tribunal shall be authorized to publish a copy or a summary of 43 any decision rendered pursuant to section one hundred seventy-one of the 44 charter of the preceding municipality as it existed January first, nine- 45 teen hundred ninety-four. 46 § 11-819 Notices and limitations of time. a. Any notice authorized or 47 required under the provisions of this chapter may be given to the person 48 for whom it is intended by mailing it in a postpaid envelope addressed 49 to such person at the address given in the last registration of a motor 50 vehicle filed by such person pursuant to the provisions of this chapter, 51 or in any application made by such person, or if no such registration 52 has been filed or application made, then to such address as may be 53 obtainable. The mailing of a notice as in this subdivision provided for 54 shall be presumptive evidence of the receipt of the same by the person 55 to whom addressed. Any period of time which is determined according to 56 the provisions of this chapter by the giving of notice shall commence toS. 8474 765 1 run from the date of mailing of such notice as in this subdivision 2 provided. 3 b. The provisions of the civil practice law and rules or any other law 4 relative to limitations of time for the enforcement of a civil remedy 5 shall not apply to any proceeding or action taken by the city to levy, 6 appraise, assess, determine or enforce the collection of any tax or 7 penalty provided by this chapter. However, except in the case of a 8 wilfully false or fraudulent registration or return with intent to evade 9 the tax, no assessment of additional tax shall be made after the expira- 10 tion of more than three years from the date of such return; provided, 11 however, that where no registration or no return has been made as 12 provided by law, the tax may be assessed at any time. 13 c. Where before the expiration of the period prescribed in this 14 section for the assessment of an additional tax, a person has consented 15 in writing that such period be extended, the amount of such additional 16 tax due may be determined at any time within such extended period. The 17 period so extended may be further extended by subsequent consents in 18 writing made before the expiration of the extended period. 19 d. If any return, claim, statement, notice, application, or other 20 document required to be filed, or any payment required to be made, with- 21 in a prescribed period or on or before a prescribed date under authority 22 of any provision of this chapter is, after such period or such date, 23 delivered by United States mail to the commissioner of finance, commis- 24 sioner of motor vehicles, the tax appeals tribunal, bureau, office, 25 officer or person with which or with whom such document is required to 26 be filed, or to which or to whom such payment is required to be made, 27 the date of the United States postmark stamped on the envelope shall be 28 deemed to be the date of delivery. This subdivision shall apply only if 29 the postmark date falls within the prescribed period or on or before the 30 prescribed date for the filing of such document, or for making the 31 payment, including any extension granted for such filing or payment, and 32 only if such document or payment was deposited in the mail, postage 33 prepaid, properly addressed to the commissioner of finance, commissioner 34 of motor vehicles, the tax appeals tribunal, bureau, office, officer or 35 person with which or with whom the document is required to be filed or 36 to which or to whom such payment is required to be made. If any document 37 is sent by United States registered mail, such registration shall be 38 prima facie evidence that such document was delivered to the commission- 39 er of finance, commissioner of motor vehicles, the tax appeals tribunal, 40 bureau, office, officer or person to which or to whom addressed, and the 41 date of registration shall be deemed the postmark date. The commissioner 42 of finance or, where relevant, the tax appeals tribunal is authorized to 43 provide by regulation the extent to which the provisions of this subdi- 44 vision with respect to prima facie evidence of delivery and the postmark 45 date shall apply to certified mail. Except as provided in subdivision f 46 of this section, this subdivision shall apply in the case of postmarks 47 not made by the United States postal service only if and to the extent 48 provided by rule of the commissioner of finance or, where relevant, the 49 tax appeals tribunal. 50 e. When the last day prescribed under authority of this chapter, 51 including any extension of time, for performing any act falls on a 52 Saturday, Sunday or legal holiday in the state of New York, the perform- 53 ance of such act shall be considered timely if it is performed on the 54 next succeeding day which is not a Saturday, Sunday or legal holiday. 55 f. (1) Any reference in subdivision d of this section to the United 56 States mail shall be treated as including a reference to any deliveryS. 8474 766 1 service designated by the secretary of the treasury of the United States 2 pursuant to section seventy-five hundred two of the internal revenue 3 code and any reference in subdivision d of this section to a United 4 States postmark shall be treated as including a reference to any date 5 recorded or marked in the manner described in section seventy-five 6 hundred two of the internal revenue code by a designated delivery 7 service. If the commissioner of finance finds that any delivery service 8 designated by such secretary is inadequate for the needs of the city, 9 the commissioner of finance may withdraw such designation for purposes 10 of this title. The commissioner of finance may also designate additional 11 delivery services meeting the criteria of section seventy-five hundred 12 two of the internal revenue code for purposes of this title, or may 13 withdraw any such designation if the commissioner of finance finds that 14 a delivery service so designated is inadequate for the needs of the 15 city. Any reference in subdivision d of this section to the United 16 States mail shall be treated as including a reference to any delivery 17 service designated by the commissioner of finance and any reference in 18 subdivision d of this section to a United States postmark shall be 19 treated as including a reference to any date recorded or marked in the 20 manner described in section seventy-five hundred two of the internal 21 revenue code by a delivery service designated by the commissioner of 22 finance. Notwithstanding the provisions of this paragraph, any with- 23 drawal of designation or additional designation by the commissioner of 24 finance shall not be effective for purposes of service upon the tax 25 appeals tribunal, unless and until such withdrawal of designation or 26 additional designation is ratified by the president of the tax appeals 27 tribunal. 28 (2) Any equivalent of registered or certified mail designated by the 29 United States secretary of the treasury, or as may be designated by the 30 commissioner of finance pursuant to the same criteria used by such 31 secretary for such designations pursuant to section seventy-five hundred 32 two of the internal revenue code, shall be included within the meaning 33 of registered or certified mail as used in subdivision d of this 34 section. If the commissioner of finance finds that any equivalent of 35 registered or certified mail designated by such secretary or the commis- 36 sioner of finance is inadequate for the needs of the city, the commis- 37 sioner of finance may withdraw such designation for purposes of this 38 title. Notwithstanding the provisions of this paragraph, any withdrawal 39 of designation or additional designation by the commissioner of finance 40 shall not be effective for purposes of service upon the tax appeals 41 tribunal, unless and until such withdrawal of designation or additional 42 designation is ratified by the president of the tax appeals tribunal. 43 § 11-820 Construction and enforcement. This chapter shall be 44 construed and enforced in conformity with chapter one thousand thirty- 45 two of the laws of nineteen hundred sixty, pursuant to which it is 46 enacted. 47 CHAPTER 9 48 TAX UPON FOREIGN AND ALIEN INSURERS 49 § 11-901 Definitions. Wherever used in this chapter, the following 50 words and phrases shall mean and include: 51 "Alien insurer." Any insurer incorporated or organized under the laws 52 of any foreign nation, or of any province or territory not included 53 under the definition of a foreign insurer. 54 "Foreign insurer." Any insurer, except a mutual insurance company 55 taxed under the provisions of section nine thousand one hundred five ofS. 8474 767 1 the insurance law, incorporated or organized under the laws of any 2 state, as herein defined, other than this state. 3 "Fire insurance corporation, association or individuals." Any insurer, 4 regardless of the name, designation or authority under which it purports 5 to act, which insures property of any kind or nature against loss or 6 damage by fire. 7 "Loss or damage by fire." Loss or damage by fire, lightning, smoke or 8 anything used to combat fire, regardless of whether such risks or the 9 premiums therefor are stated or charged separately and apart from any 10 other risk or premium. 11 "State." Any state of the United States and the District of Columbia. 12 "Commissioner of finance." The commissioner of finance of the city or 13 any other officer of the city designated to perform the same functions. 14 "Department of finance." The department of finance of the city or any 15 other agency or department designated to perform the same functions. 16 "Fire commissioner." The fire commissioner of the city. 17 "Comptroller." The comptroller of the city. 18 "Tax appeals tribunal." The tax appeals tribunal established by 19 section one hundred sixty-eight of the charter of the preceding munici- 20 pality as it existed January first, nineteen hundred ninety-four. 21 § 11-902 General powers of the commissioner of finance. In addition 22 to all other powers granted to the commissioner of finance under this 23 chapter, the commissioner is hereby authorized and empowered: 24 1. To make, adopt and amend rules and regulations appropriate to the 25 carrying out of this chapter and the purposes thereof. 26 2. To compromise disputed claims in connection with taxes hereby 27 imposed. 28 3. To delegate his or her functions hereunder to any officer or 29 employee of the department of finance. 30 4. To prescribe reasonable methods, approved by the New York state 31 superintendent of insurance, for determining the amounts of premiums 32 subject to the tax. 33 5. To require any foreign or alien insurer subject to the tax to keep 34 detailed records of the premiums in a manner reasonably designed to show 35 the amounts thereof subject to the tax and to furnish such information 36 on request. 37 6. To assess, determine, revise and adjust the tax imposed under this 38 chapter. 39 7. To audit the reports of any insurer. 40 8. To allow an extension of time not in excess of thirty days for 41 filing the report and paying the tax required by this chapter, provided 42 the taxpayer requests such extension in writing prior to the date 43 prescribed for such filing and such payment by sections 11-904 and 44 11-903 of this chapter. 45 § 11-903 Tax on premiums on policies of foreign and alien insurers. 46 There shall be paid to the department of finance for the use and benefit 47 of the fire department of the city, on or before the first day of March, 48 in each year by every foreign and alien fire insurance corporation, 49 association or individuals which insure property against loss or damage 50 by fire, the sum of two percent of all gross direct premiums less return 51 premiums which, during the year ending on the preceding thirty-first day 52 of December, shall have been received by any such insurer for any insur- 53 ance against loss or damage by fire in the city. Any such insurer which 54 in any year shall cease or terminate doing business in the city shall 55 pay the tax for such year within thirty days after such cessation or 56 termination.S. 8474 768 1 § 11-904 Report of premiums by insurers. Each insurer required to pay 2 a tax under this chapter shall, at the time such tax is paid or payable, 3 whichever is sooner, render to the commissioner of finance a verified 4 report setting forth such information as may be required by the commis- 5 sioner for the determination of the tax and the proper administration of 6 this chapter. The commissioner of finance shall prescribe the form and 7 furnish the necessary forms to enable such insurers to make such 8 reports. The commissioner or the commissioner's designated represen- 9 tative or the tax appeals tribunal or its designated representative 10 shall have power to examine any such insurer under oath and to require 11 the production by such insurer of all books and papers as the commis- 12 sioner or the tax appeals tribunal may deem necessary. All expenses of 13 collecting such tax shall be paid by the commissioner of finance from 14 the funds received under this chapter prior to the distribution thereof 15 as hereinafter authorized. 16 § 11-905 Interest and penalties. (a) Interest on underpayments. If any 17 amount of tax is not paid on or before the last date prescribed for 18 payment, without regard to any extension of time granted for payment, 19 interest on such amount at the underpayment rate set by the commissioner 20 of finance pursuant to subdivision (g) of this section, or, if no rate 21 is set, at the rate of seven and one-half percent per annum, shall be 22 paid for the period from such last date to the date of payment. In 23 computing the amount of interest to be paid, such interest shall be 24 compounded daily. Interest under this subdivision shall not be paid if 25 the amount thereof is less than one dollar. 26 (b) (1) Failure to file return. (A) In case of failure to file a 27 return under this chapter on or before the prescribed date, determined 28 with regard to any extension of time for filing, unless it is shown that 29 such failure is due to reasonable cause and not due to willful neglect, 30 there shall be added to the amount required to be shown as tax on such 31 return five percent of the amount of such tax if the failure is for not 32 more than one month, with an additional five percent for each additional 33 month or fraction thereof during which such failure continues, not 34 exceeding twenty-five percent in the aggregate. 35 (B) In the case of a failure to file a return of tax within sixty days 36 of the date prescribed for filing of such return, determined with regard 37 to any extension of time for filing, unless it is shown that such fail- 38 ure is due to reasonable cause and not due to willful neglect, the addi- 39 tion to tax under subparagraph (A) of this paragraph shall not be less 40 than the lesser of one hundred dollars or one hundred percent of the 41 amount required to be shown as tax on such return. 42 (C) For purposes of this paragraph, the amount of tax required to be 43 shown on the return shall be reduced by the amount of any part of the 44 tax which is paid on or before the date prescribed for payment of the 45 tax and by the amount of any credit against the tax which may be claimed 46 upon the return. 47 (2) Failure to pay tax shown on return. In case of failure to pay the 48 amount shown as tax on a return required to be filed under this chapter 49 on or before the prescribed date, determined with regard to any exten- 50 sion of time for payment, unless it is shown that such failure is due to 51 reasonable cause and not due to willful neglect, there shall be added to 52 the amount shown as tax on such return one-half of one percent of the 53 amount of such tax if the failure is not for more than one month, with 54 an additional one-half of one percent for each additional month or frac- 55 tion thereof during which such failure continues, not exceeding twenty- 56 five percent in the aggregate. For the purpose of computing the additionS. 8474 769 1 for any month the amount of tax shown on the return shall be reduced by 2 the amount of any part of the tax which is paid on or before the begin- 3 ning of such month and by the amount of any credit against the tax which 4 may be claimed upon the return. If the amount of tax required to be 5 shown on a return is less than the amount shown as tax on such return, 6 this paragraph shall be applied by substituting such lower amount. 7 (3) Failure to pay tax required to be shown on return. In case of 8 failure to pay any amount in respect of any tax required to be shown on 9 a return required to be filed under this chapter which is not so shown, 10 including a determination made pursuant to section 11-906 of this chap- 11 ter, within ten days of the date of a notice and demand therefor, unless 12 it is shown that such failure is due to reasonable cause and not due to 13 willful neglect, there shall be added to the amount of tax stated in 14 such notice and demand one-half of one percent of such tax if the fail- 15 ure is not for more than one month, with an additional one-half of one 16 percent for each additional month or fraction thereof during which such 17 failure continues, not exceeding twenty-five percent in the aggregate. 18 For the purpose of computing the addition for any month, the amount of 19 tax stated in the notice and demand shall be reduced by the amount of 20 any part of the tax which is paid before the beginning of such month. 21 (4) Limitations on additions. 22 (A) With respect to any return, the amount of the addition under para- 23 graph one of this subdivision shall be reduced by the amount of the 24 addition under paragraph two of this subdivision for any month to which 25 an addition applies under both paragraphs one and two of this subdivi- 26 sion. In any case described in subparagraph (B) of paragraph one of 27 this subdivision, the amount of the addition under such paragraph one 28 shall not be reduced below the amount provided in such subparagraph. 29 (B) With respect to any return, the maximum amount of the addition 30 permitted under paragraph three of this subdivision shall be reduced by 31 the amount of the addition under paragraph one of this subdivision, 32 determined without regard to subparagraph (B) of such paragraph one 33 which is attributable to the tax for which the notice and demand is made 34 and which is not paid within ten days of such notice and demand. 35 (c) Underpayment due to negligence. (1) If any part of an underpayment 36 of tax is due to negligence or intentional disregard of this chapter or 37 any rules and regulations hereunder, but without intent to defraud, 38 there shall be added to the tax a penalty equal to five percent of the 39 underpayment. 40 (2) There shall be added to the tax, in addition to the amount deter- 41 mined under paragraph one of this subdivision an amount equal to fifty 42 percent of the interest payable under subdivision (a) of this section 43 with respect to the portion of the underpayment described in such para- 44 graph one which is attributable to the negligence or intentional disre- 45 gard referred to in such paragraph one, for the period beginning on the 46 last date prescribed by law for payment of such underpayment, determined 47 without regard to any extension, and ending on the date of the assess- 48 ment of the tax, or, if earlier, the date of the payment of the tax. 49 (d) Underpayment due to fraud. (1) If any part of an underpayment of 50 tax is due to fraud, there shall be added to the tax a penalty equal to 51 fifty percent of the underpayment. 52 (2) There shall be added to the tax, in addition to the penalty deter- 53 mined under paragraph one of this subdivision, an amount equal to fifty 54 percent of the interest payable under subdivision (a) of this section 55 with respect to the portion of the underpayment described in such para- 56 graph one which is attributable to fraud, for the period beginning onS. 8474 770 1 the last day prescribed by law for payment of such underpayment, deter- 2 mined without regard to any extension, and ending on the date of the 3 assessment of the tax, or, if earlier, the date of the payment of the 4 tax. 5 (3) The penalty under this subdivision shall be in lieu of any other 6 addition to tax imposed by subdivision (b) or (c) of this section. 7 (e) Additional penalty. Any insurer who, with fraudulent intent, shall 8 fail to pay any tax imposed by this chapter, or to make, render, sign or 9 certify any return, or to supply any information within the time 10 required by or under this chapter, shall be liable for a penalty of not 11 more than one thousand dollars, in addition to any other amounts 12 required under this chapter to be imposed, assessed and collected by the 13 commissioner of finance. The commissioner of finance shall have the 14 power, in his or her discretion, to waive, reduce or compromise any 15 penalty under this subdivision. 16 (f) The interest and penalties imposed by this section shall be paid 17 and disposed of in the same manner as other revenues from this chapter. 18 Unpaid interest and penalties may be enforced in the same manner as the 19 tax imposed by this chapter. 20 (g) (1) Authority to set interest rates. The commissioner of finance 21 shall set the overpayment and underpayment rates of interest to be paid 22 pursuant to subdivision (a) of this section and subdivision (a) of 23 section 11-906 of this chapter, but if no such overpayment rate of 24 interest are set, such rate or rates shall be deemed to be set at six 25 percent per annum and such underpayment rate shall be deemed to be set 26 at seven and one-half percent per annum. Such rates shall be the over- 27 payment and underpayment rates prescribed in paragraph two of this 28 subdivision but the underpayment rate shall not be less than seven and 29 one-half percent per annum. Any such rates set by the commissioner of 30 finance shall apply to taxes, or any portion thereof, which remain or 31 become due or overpaid on or after the date on which such rates become 32 effective and shall apply only with respect to interest computed or 33 computable for periods or portions of periods occurring in the period in 34 which such rates are in effect. 35 (2) General rule. (A) Overpayment rate. The overpayment rate set under 36 this subdivision shall be the sum of (i) the federal short-term rate as 37 provided under paragraph three of this subdivision, plus (ii) two 38 percentage points. 39 (B) Underpayment rate. The underpayment rate set under this subdivi- 40 sion shall be the sum of (i) the federal short-term rate as provided 41 under paragraph three of this subdivision, plus (ii) seven percentage 42 points. 43 (3) Federal short-term rate. For purposes of this subdivision: 44 (A) The federal short-term rate for any month shall be the federal 45 short-term rate determined by the United States secretary of the treas- 46 ury during such month in accordance with subsection (d) of section 47 twelve hundred seventy-four of the internal revenue code for use in 48 connection with section six thousand six hundred twenty-one of the 49 internal revenue code. Any such rate shall be rounded to the nearest 50 full percent, or, if a multiple of one-half of one percent, such rate 51 shall be increased to the next highest full percent. 52 (B) Period during which rate applies. 53 (i) In general. Except as provided in clause (ii) of this subpara- 54 graph, the federal short-term rate for the first month in each calendar 55 quarter shall apply during the first calendar quarter beginning after 56 such month.S. 8474 771 1 (ii) Special rule for the month of September, nineteen hundred eight- 2 y-nine. The federal short-term rate for the month of April, nineteen 3 hundred eighty-nine shall apply with respect to setting the rate of 4 interest for the month of September, nineteen hundred eighty-nine. 5 (4) Publication of interest rate. The commissioner of finance shall 6 cause to be published in the City Record, and give other appropriate 7 general notice of, the interest rate to be set under this subdivision no 8 later than twenty days preceding the first day of the calendar quarter 9 during which such interest rate applies. The setting and publication of 10 such interest rate shall not be included within paragraph (a) of subdi- 11 vision five of section one thousand forty-one of the city charter of the 12 preceding municipality as it existed January first, nineteen hundred 13 ninety-four relating to the definition of a rule. 14 § 11-906 Assessment, refund, collection, review and reserves. (a) The 15 provisions of the civil practice law and rules or any other law relative 16 to limitations of time for the enforcement of a civil remedy shall not 17 apply to any proceeding or action by the commissioner of finance to 18 levy, assess, determine or enforce the collection of tax, interest or 19 penalty imposed by this chapter. However, except in the case of a 20 wilfully false or fraudulent report, no assessment of additional tax, 21 interest or penalty shall be made after the expiration of more than 22 three years from the date of the filing of a report, provided, however, 23 that where no report has been filed as provided by law the tax may be 24 assessed at any time. The commissioner of finance shall refund or cred- 25 it, with interest at the overpayment rate set by the commissioner of 26 finance pursuant to subdivision (g) of section 11-905 of this chapter 27 or, if no rate is set, at the rate of six percent per annum computed 28 from the date of overpayment to a date, to be determined by the commis- 29 sioner of finance, preceding the date of a refund check by not more than 30 thirty days, any tax, penalty or interest erroneously, illegally or 31 unconstitutionally collected or paid if application to the commissioner 32 of finance for such refund shall be made within six months from the 33 payment thereof. Notice of any determination of the commissioner of 34 finance with respect to an assessment of tax, interest or penalty or 35 with respect to a claim for refund or any other notice, demand or 36 request shall be given by mailing the same to the insurer to the address 37 of its city of Staten Island office last filed with the commissioner of 38 finance or, if there is no such office, to the address of its main 39 office last filed with the commissioner of finance or, in the absence of 40 any filed address, to such address as may be obtainable. The mailing of 41 any notice, demand or request by the commissioner of finance shall be 42 presumptive evidence of its receipt by the insurer and any period of 43 time to be determined with reference to the giving of such notice, 44 demand or request shall commence to run from the date of such mailing. 45 The determination of the commissioner of finance shall finally and irre- 46 vocably fix the amount of any tax, interest or penalty due or to be 47 refunded unless the taxpayer, within ninety days after the giving of 48 notice of such determination, or if the commissioner of finance has 49 established a conciliation procedure pursuant to section 11-124 of this 50 title and the taxpayer has requested a conciliation conference in 51 accordance therewith, within ninety days from the mailing of a concil- 52 iation decision or the date of the commissioner's confirmation of the 53 discontinuance of the conciliation proceeding, both (1) serves a peti- 54 tion upon the commissioner of finance and (2) files a petition with the 55 tax appeals tribunal for a hearing, or unless the commissioner of 56 finance of his or her own motion shall redetermine the same. Such hear-S. 8474 772 1 ing and any appeal to the tax appeals tribunal sitting en banc from the 2 decision rendered in such hearing shall be conducted in the manner and 3 subject to the requirements prescribed by the tax appeals tribunal 4 pursuant to sections one hundred sixty-eight through one hundred seven- 5 ty-two of the charter of the preceding municipality as it existed Janu- 6 ary first, nineteen hundred ninety-four. After such hearing the tax 7 appeals tribunal shall give notice of its decision to the taxpayer and 8 to the commissioner of finance with reference to the amount of the tax, 9 interest or penalty assessed or to be refunded. The decision of the tax 10 appeals tribunal sitting en banc shall be reviewable for error, illegal- 11 ity or unconstitutionality or any other reason, by a proceeding under 12 article seventy-eight of the civil practice law and rules if such 13 proceeding is commenced by the person against whom the tax was assessed 14 within four months after the giving of the notice of such tax appeals 15 tribunal decision. Such proceeding shall not be commenced by the taxpay- 16 er unless: (1) the amount of any tax assessed and sought to be reviewed 17 with penalties and interest thereon, if any, shall be first deposited 18 with the commissioner of finance and there shall be filed with the 19 commissioner of finance an undertaking in such amount and with such 20 sureties as a justice of the supreme court shall approve, to the effect 21 that if such proceeding be dismissed or the decision confirmed, the 22 taxpayer will pay all costs and charges which may accrue against the 23 taxpayer in the prosecution of the proceeding, or (2) in the case of a 24 review of a decision assessing any taxes, penalties and interest, at the 25 option of the taxpayer, such undertaking may be in a sum sufficient to 26 cover all of the taxes, penalties and interest assessed by such decision 27 plus the costs and charges which may accrue against the taxpayer in the 28 prosecution of the proceeding, in which event the taxpayer shall not be 29 required to deposit such taxes, penalties and interest as a condition 30 precedent to the commencement of the proceeding. No determination or 31 proposed determination of tax, interest or penalty due or to be refunded 32 shall be reviewed or enjoined in any manner except as set forth herein. 33 (b) In cases where the taxpayer has applied for a refund and has 34 commenced a proceeding under article seventy-eight of the civil practice 35 law and rules to review a decision of the tax appeals tribunal adverse 36 to such taxpayer on its application for a refund, the commissioner of 37 finance shall set up appropriate reserves to meet any decision adverse 38 to the city. 39 (c) In computing the amount of interest to be paid under this section, 40 such interest shall be compounded daily. 41 § 11-907 Place of business to be reported. Every insurer, on or 42 before the first day of March in each year, and as often in each year as 43 such insurer shall change its principal place of business or change or 44 terminate any office or place of business in the city, shall report in 45 writing, to the commissioner of finance, the location of its principal 46 place of business and any new principal place of business or of any new 47 office or place of business in the city or of the termination of any 48 such office or place of business. In the event of such change or termi- 49 nation, such report shall be made no later than fifteen days after such 50 change or termination. Any insurer who fails or neglects to make such 51 report within the time limited therefor shall be subject to a penalty of 52 one hundred dollars and, in addition thereto, fifty dollars for each 53 month or part thereof during which such report is not made. The total 54 of such penalties shall not exceed one thousand dollars. 55 § 11-908 Suits for violations. The tax provided to be paid by this 56 chapter, and the pecuniary penalties and interest imposed therein, orS. 8474 773 1 any or either of them, may be sued for and recovered, with costs of 2 suit, in any court of record, by the commissioner of finance. 3 § 11-909 Distribution of tax on policies covering property in the city 4 of Staten Island. (a) The moneys received by the commissioner of finance 5 as a tax on policies covering property in the city shall be disbursed by 6 the commissioner of finance as follows: 7 1. Ten percent to the firemen's association of the state of New York, 8 for the endowment, benefit and maintenance of the volunteer firemen's 9 home at Hudson, but in no event to exceed the sum of thirty-five thou- 10 sand dollars annually. 11 2. The balance to the general fund of the city established pursuant to 12 section one hundred nine of the charter, except as provided in paragraph 13 three of this subdivision. 14 3. a. Volunteer firemen's benevolent fund; trustee. From the balance 15 specified in paragraph two of this subdivision, a sum, not to exceed one 16 hundred fifty thousand dollars in any one year, shall be paid into a 17 fund to be known as the volunteer firemen's benevolent fund, which shall 18 be administered as provided by the fire commissioner, as trustee of such 19 fund, for the benefit of indigent volunteer firefighters, their surviv- 20 ing spouses and orphans. 21 b. Persons entitled to benefits from fund. All funds received by the 22 fire commissioner as trustee under this paragraph shall be expended by 23 the fire commissioner for the relief of: 24 (i) all indigent volunteer firefighters who served as such for a peri- 25 od of five years in a duly organized volunteer fire company in the 26 former towns of New Lots, Flatlands, Gravesend, New Utrecht and Flatbush 27 in the county of Kings, or in the territory now included in the city of 28 Staten Island, or in the territory now included in the borough of 29 Queens, or in the territory now included in the borough of the Bronx, 30 and who were honorably discharged after such five years of service, or 31 who having been members of a duly organized volunteer fire company with- 32 in any such town or territory, which company was disbanded by reason of 33 the installation of a paid fire department, and were members of such 34 company for at least one year prior to its disbandment; 35 (ii) the surviving spouses and orphans of any such volunteer fire- 36 fighters. 37 c. Fund benefits of beneficiaries on rolls as of December thirty- 38 first, nineteen hundred fifty-one. During the lifetime of those relief 39 beneficiaries who appear as such as of December thirty-first, nineteen 40 hundred fifty-one upon the records of the trustees of the exempt fire- 41 men's benevolent fund of the county of Kings, or of the trustees of the 42 exempt firemen's benevolent fund of the borough of Queens, or of the 43 trustees of the exempt firemen's benevolent fund of the borough of 44 Staten Island, or of the trustees of the exempt firemen's benevolent 45 fund of the borough of the Bronx, it shall be the duty of the fire 46 commissioner, as such trustee, to pay to such beneficiaries from the 47 volunteer firemen's benevolent fund referred to in subparagraph a of 48 this paragraph, the same amounts as were being periodically paid to such 49 beneficiaries as of June thirtieth, nineteen hundred fifty-two. 50 d. Fund benefits of residents of firemen's home. It shall be the duty 51 of the fire commissioner, as such trustee, to pay from such fund 52 referred to in subparagraph a of this paragraph, the sum of ten dollars 53 monthly to each volunteer firefighter in residence at the volunteer 54 firemen's home at Hudson, who qualified for entrance into such home by 55 reason of service as a volunteer firefighter within the area now 56 included within the boundaries of the city. No other payments shall beS. 8474 774 1 made from such fund to any such volunteer firefighter while in residence 2 at such home. 3 e. Eligibility of persons who applied for fund benefits after December 4 thirty-first, nineteen hundred fifty-one, and prior to the establishment 5 of fund. Upon the establishment of the volunteer firemen's benevolent 6 fund referred to in subparagraph a of this paragraph, the fire commis- 7 sioner or the fire commissioner's authorized subordinates shall investi- 8 gate and determine the need for benefits of all persons who, after 9 December thirty-first, nineteen hundred fifty-one and prior to the 10 establishment of such volunteer firemen's benevolent fund, applied for 11 benefits payable from any of the benevolent funds mentioned in subpara- 12 graph c of this paragraph, and who are receiving benefits therefrom at 13 the time of the establishment of such fund referred to in subparagraph a 14 of this paragraph. No such person shall be found to be in need of bene- 15 fits, nor shall any such person be paid any benefits from such last-men- 16 tioned fund unless the fire commissioner or the fire commissioner's 17 authorized subordinates shall determine that such person is indigent. In 18 the event that any such person is thus found to be in need of benefits, 19 the fire commissioner shall pay to such person from such last-mentioned 20 fund, the same periodic amounts as the trustees mentioned in subpara- 21 graph c of this paragraph were paying as of June thirtieth, nineteen 22 hundred fifty-two, to a person who had the same status and who was 23 receiving benefits from the borough or county fund which would be 24 currently liable for the payment of benefits to such person, but for the 25 provision of section 13-532 of the code of the preceding municipality. 26 It shall be the duty of the fire commissioner and the fire commission- 27 er's authorized subordinates to maintain and carry out continuously, 28 such investigation procedures as may be necessary to assure that bene- 29 fits will not be paid from such fund to any persons who are not in need 30 as herein specified. 31 f. Eligibility for benefits of persons applying therefor after estab- 32 lishment of fund. All persons applying after the establishment of the 33 volunteer firemen's benevolent fund for benefits payable therefrom shall 34 be investigated as to need by the fire commissioner or the fire commis- 35 sioner's authorized subordinates, and the eligibility of such persons 36 for benefits and the amount thereof to be awarded and paid to them shall 37 be determined by the fire commissioner or the fire commissioner's 38 authorized subordinates in accordance with the standards specified in 39 subparagraph e of this paragraph. Benefits shall be paid from such fund 40 to eligible persons in accordance with such determination and it shall 41 be the duty of the fire commissioner and the fire commissioner's subor- 42 dinates continuously to maintain and carry out as to such persons inves- 43 tigation procedures such as are described in subparagraph e of this 44 paragraph. The fire commissioner, as part of his or her investigation to 45 determine eligibility of persons for fund benefits, shall request from 46 the duly appointed representative of the volunteer firefighters in each 47 borough a report on such person's service and indigency. Such report 48 shall be solely for the information of the fire commissioner and shall 49 not be binding upon the fire commissioner in arriving at a determination 50 as to eligibility. In the event that such report is not submitted within 51 ten days from the date of request, the fire commissioner shall determine 52 eligibility on the basis of the facts developed in the fire commission- 53 er's own investigation. 54 g. Excess moneys. In the event that the benefits paid by the fire 55 commissioner, as trustee, during any period of one year beginning on the 56 first day of February shall not equal the sum of one hundred fifty thou-S. 8474 775 1 sand dollars, the unexpended balance shall be paid into the general fund 2 of the city established pursuant to section one hundred nine of the 3 charter, except that the fire commissioner may retain in the volunteer 4 firemen's benevolent fund such amount as may be necessary to meet the 5 commitments of such fund until the revenue from the tax collected under 6 this chapter in the ensuing taxable year shall become available. 7 h. Depositories. The fire commissioner, as trustee, is hereby 8 empowered and directed to receive all moneys and assets belonging or 9 payable to such volunteer firemen's benevolent fund and shall deposit 10 all such moneys to the credit of such fund in banks and trust companies 11 to be selected by the fire commissioner. 12 i. Bond. The fire commissioner, as trustee of such fund, shall give a 13 bond with one or more sureties, in a sum sufficient for the faithful 14 performance of his or her duties, such bond to be approved as to amount 15 and adequacy, by the comptroller and filed in the comptroller's office. 16 j. Records. The officers and employees of the fire department who are 17 responsible for the maintenance of the books and records of the New York 18 fire department pension fund shall have charge of, and keep the accounts 19 of the fire commissioner as trustee of the volunteer firemen's benevo- 20 lent fund. 21 k. Reports. The fire commissioner, as trustee of such volunteer fire- 22 men's benevolent fund, shall submit to the mayor on or before the first 23 day of April of each year, a verified report in which shall be set forth 24 the account of the fire commissioner's proceedings as such trustee 25 during the twelve-month period ending on the thirty-first day of January 26 immediately preceding. Such report shall include a statement of all 27 receipts and disbursements on account of such benevolent fund, a list of 28 the names, residences and as nearly as possible, the ages of the benefi- 29 ciaries of such fund and the respective amounts paid to them during such 30 period. 31 1. Audit. The comptroller shall have the power to audit the books and 32 records of the fire commissioner as trustee of the volunteer firemen's 33 benevolent fund. 34 (b) The moneys received by the fire commissioner as trustee pursuant 35 to the provisions of paragraph three of subdivision (a) of this section 36 shall be expended by the fire commissioner only as provided in such 37 paragraph. 38 CHAPTER 10 39 OCCUPANCY TAX FOR LOW RENT HOUSING AND SLUM CLEARANCE 40 § 11-1001 Legislative findings. It is hereby declared that: In 41 certain areas of the city of Staten Island there exist unsanitary or 42 substandard housing conditions owing to overcrowding and concentration 43 of population, improper planning, excessive land coverage, lack of prop- 44 er light, air and space, unsanitary design and arrangement, or lack of 45 proper sanitary facilities; there is not an adequate supply of decent, 46 safe and sanitary dwelling accommodations for persons of low income; 47 these conditions cause an increase and spread of disease and crime and 48 constitute a menace to the health, safety, morals, welfare and comfort 49 of the citizens of the state, and impair economic values; these condi- 50 tions cannot be remedied by the ordinary operation of private enter- 51 prise; the clearance, replanning and reconstruction of the areas in 52 which unsanitary or substandard housing conditions exist and the provid- 53 ing of decent, safe and sanitary dwelling accommodations in such areas 54 and elsewhere for persons of low income are public uses and purposes forS. 8474 776 1 which public money may be spent and private property acquired; therefore 2 the necessity in the public interest to enact the provisions of this 3 chapter is hereby declared, as a matter of legislative determination. 4 § 11-1002 Low rent housing and slum clearance; governmental functions. 5 It is hereby declared as a matter of legislative determination that the 6 clearing of areas in which the conditions described in section 11-1001 7 of this chapter exist and the furnishing of low rent housing for the 8 occupants thereof be hereafter a function of the government of the city 9 of Staten Island. 10 § 11-1003 Housing authority; agent for city. It is hereby declared 11 that the city housing authority be and it hereby is appointed as the 12 agent for the city of Staten Island to carry out the functions described 13 in section 11-1002 of this chapter. 14 § 11-1004 Definitions. When used in this chapter: a. The word "occu- 15 pation" means the use or possession for a consideration of any premises 16 under any lease, concession, permit, right of access, license to use, or 17 other agreement, for any gainful purpose. 18 b. The word "occupant" means any person who uses or possesses for a 19 consideration any premises under any lease, concession, permit, right of 20 access, license to use or other agreement for any gainful purpose. 21 c. The word "person" means an individual, co-partnership, society, 22 association, joint-stock company, corporation, estate, receiver, assig- 23 nee, trustee or any other person acting in a fiduciary capacity, whether 24 appointed by a court or otherwise, and any combination of individuals. 25 d. The word "premises" means any real property, or any part thereof, 26 any kind of space, or structure, except premises, as defined in this 27 subdivision, which are located in, upon, above or under any public 28 street, highway or public place, separately occupied in the city of 29 Staten Island by any person for his or her own use for gainful purpose 30 or by any concessionaire for such use for gainful purpose, whether by 31 ownership, lease, sublease, profit-sharing arrangement or otherwise. 32 e. The words "rental value" mean the amount of the consideration annu- 33 ally fixed or charged against any person for the occupation of any prem- 34 ises during the period of one year commencing on July sixteenth of the 35 year prior to the year in which the tax is due and terminating on July 36 fifteenth of the year in which the tax is due, or if computed on a basis 37 other than an annual basis, then the amount which would be equivalent to 38 an annual charge for the occupation of the premises. 39 f. The words "non-federal project" shall mean a project not aided or 40 financed in whole or in part by the federal government and where such 41 government does not reserve the right to approve or supervise the 42 construction or operation of the project. 43 g. The words "vending machine" mean a machine which vends or sells 44 tangible personal property; and shall also include but not be limited to 45 amusement devices, automatic sanitary facilities and all other machines 46 vending services. 47 § 11-1005 Imposition of the tax. a. To provide additional funds for 48 the purpose of fulfilling any contract to make capital or periodic 49 subsidies to the city housing authority in aid of a low rent or slum 50 clearance project or for the purpose of paying an indebtedness incurred 51 for a low rent or slum clearance project, every occupant of premises for 52 a year or any part thereof in excess of one month and fifteen days shall 53 pay annually to the commissioner of finance on June twentieth of each 54 year until and including June twentieth, nineteen hundred eighty-one, a 55 tax for each separate premises occupied at the rates computed, withS. 8474 777 1 reference to the rental value for separate premises in the city of 2 Staten Island, as specified in the following table: 3 ====================================================================== 4 When the rental And not The amount of 5 value is at least more than the tax shall be 6 ________________________________________________________________________ 7 $1.00................... $1,000.99 $2.00 8 1,001.00................... 2,000.99 4.00 9 2,001.00................... 3,000.99 6.00 10 3,001.00................... 4,000.99 8.00 11 4,001.00................... 5,000.99 10.00 12 5,001.00 and over........................... 12.00 13 ======================================================================== 14 b. Where the premises are occupied by vending machines which sell 15 tangible personal property the tax shall be computed as specified in the 16 following table: 17 ======================================================================== 18 When the total value of the 19 coins used in such vending The amount of 20 machines is the tax shall be 21 ________________________________________________________________________ 22 $.01................................... $ .20 23 .02 to .14 incl....................... .40 24 .15 to .24 incl....................... 1.00 25 .25 and over.......................... 2.00 26 ======================================================================== 27 c. Where the premises are occupied by vending machines other than 28 those which sell tangible personal property the tax shall be computed as 29 specified in the following table: 30 ======================================================================== 31 When the total value of the 32 coins used in such vending The amount of 33 machines is the tax shall be 34 ________________________________________________________________________ 35 $.01..................................... $.40 36 .02 and over............................ 2.00 37 ======================================================================== 38 § 11-1006 Exemptions. No tax as imposed by section 11-1005 of this 39 chapter shall be due or payable in any event for the occupation of any 40 of the premises described in this section to the extent so occupied and 41 no return need be made therefor pursuant to the provisions of this chap- 42 ter if any of the following conditions be demonstrated to the satisfac- 43 tion of the commissioner of finance: 44 1. That the premises are occupied by: 45 (a) Peddlers. 46 (b) Bootblacks, excluding shoe shine machines or enterprises where 47 services other than the shining of shoes are rendered. 48 (c) Operators of pushcarts. 49 (d) Operators of kiosk or subway stands engaged solely and exclusively 50 in the sale of newspapers, magazines and periodicals, or any combination 51 thereof. 52 (e) Operators of stoop line stands licensed pursuant to chapter two of 53 title twenty of the code of the preceding municipality. 54 (f) Operators of newspaper stands licensed pursuant to chapter two of 55 title twenty of the code of the preceding municipality.S. 8474 778 1 2. That the premises are occupied for a period of less than one month 2 and fifteen days during the period of one year preceding July fifteenth 3 of the year in which the tax is due. 4 3. That the premises are occupied by a co-operative corporation organ- 5 ized under the provisions of the cooperative corporations law of the 6 state of New York, or an agricultural co-operative organized under the 7 authority of the federal government. 8 4. That the premises are occupied by the state of New York, or any 9 public corporation, including a public corporation created pursuant to 10 agreement or compact with another state or the dominion of Canada, 11 improvement district or other political subdivision of the state where 12 it is the purchaser, user or consumer. 13 5. That the premises are occupied by the United Nations or other 14 world-wide international organizations of which the United States of 15 America is a member. 16 6. That the premises are occupied by a corporation, or association, or 17 trust, or community chest, fund or foundation, organized and operated 18 exclusively for religious, charitable, or educational purposes, or for 19 the prevention of cruelty to children or animals, no part of the net 20 earnings of which inures to the benefit of any private shareholder or 21 individual, and no substantial part of the activities of which is carry- 22 ing on propaganda, or otherwise attempting to influence legislation; 23 provided, however, that nothing in this subdivision shall include an 24 organization operated for the primary purpose of carrying on a trade or 25 business for profit, whether or not all of its profits are payable to 26 one or more organizations described in this subdivision. 27 7. That the premises are occupied by the United States of America 28 under circumstances which make the premises immune from taxation. 29 § 11-1007 Returns; payment of taxes. On or before the twentieth day 30 of June in each year, every person subject to a tax hereunder, shall 31 file a return with the commissioner of finance on the form to be 32 furnished by the commissioner of finance. At the time of filing such 33 return each person shall pay to the commissioner of finance the tax 34 imposed pursuant to this chapter. Such tax shall be due and payable 35 annually upon the twentieth day of June, whether or not a return is 36 filed. 37 § 11-1008 Presumption and burden of proof. It shall be presumed that 38 the occupant of any premises is subject to the tax until the contrary is 39 established, and the burden of proving that any occupation of premises 40 is exempt from taxation shall be upon such occupant. 41 § 11-1009 Determination of tax by the commissioner of finance. a. If 42 a return required by this chapter is not filed, or if a return when 43 filed is incorrect or insufficient and the maker fails to file a 44 corrected or sufficient return within twenty days after it is required 45 by a notice from the commissioner of finance, the commissioner of 46 finance shall tentatively determine the amount of tax due from such 47 information as he or she may be able to obtain and, if necessary, may 48 estimate the tax on the basis of external indices. The commissioner of 49 finance shall give notice of the amount so fixed to the person liable 50 for the tax. Unless the person against whom the tax is assessed shall 51 within fifteen days after the giving of such notice apply in writing to 52 the commissioner of finance for a hearing to correct such assessment, 53 such notice shall constitute a final and irrevocable determination of 54 the tax. After such hearing the commissioner of finance shall give 55 notice of his or her decision to the person liable for the tax.S. 8474 779 1 b. Such determination and the decision of the commissioner of finance 2 upon any application to correct may be reviewed for error, illegality or 3 unconstitutionality or for any reason whatsoever by a proceeding under 4 article seventy-eight of the civil practice law and rules in the nature 5 of a certiorari proceeding if application therefor is made to the 6 supreme court within thirty days after the giving of notice thereof. 7 Whenever under this chapter a proceeding to review is instituted, it 8 shall not be allowed unless the amount of any tax sought to be reviewed, 9 with penalties thereon, if any, shall be first deposited with the 10 commissioner of finance, and an undertaking filed with the commissioner 11 of finance, in such amount and with such sureties as a justice of the 12 supreme court shall approve, to the effect that if such proceeding be 13 dismissed or the tax confirmed, such person will pay all costs and 14 charges which may accrue in the prosecution of such proceeding. 15 § 11-1010 Refunds. The commissioner of finance shall refund any tax 16 erroneously, illegally or unconstitutionally collected by or paid to him 17 or her, under protest in writing, stating in detail the ground or 18 grounds of the protest, if application therefor shall be made to the 19 commissioner of finance within one year from the payment thereof. For 20 like cause and within the same period a refund may be made on the initi- 21 ative of the commissioner of finance. Whenever a refund is made the 22 commissioner of finance shall state his or her reasons therefor in writ- 23 ing. A person shall not be entitled to a hearing in connection with any 24 application for a refund if he or she has already been given the oppor- 25 tunity of a hearing as provided in section 11-1009 of this chapter. No 26 refund shall be made of a tax or penalty paid pursuant to a determi- 27 nation of the commissioner of finance as provided in section 11-1009 of 28 this chapter, unless the commissioner of finance, after a hearing as in 29 said section provided, or of his or her own motion, shall have reduced 30 the tax or penalty, or it shall have been established in a proceeding 31 under article seventy-eight of the civil practice law and rules that 32 such determination was erroneous, illegal, unconstitutional, or other- 33 wise improper, in which event a refund with interest shall be made as 34 provided upon the determination of such proceeding. An application for 35 a refund made as provided in this chapter shall be deemed an application 36 for a revision of any tax or penalty complained of and the commissioner 37 of finance may receive evidence with respect thereto. After making his 38 or her determination the commissioner of finance shall give notice ther- 39 eof to the person interested who shall be entitled to review such deter- 40 mination by a proceeding under article seventy-eight of the civil prac- 41 tice law and rules if application to the supreme court be made therefor 42 within thirty days after such determination and an undertaking shall 43 first be filed with the commissioner of finance in such amount and with 44 such sureties as a justice of the supreme court shall approve, to the 45 effect that if such order be dismissed or the tax confirmed, the appli- 46 cant for the order will pay all costs and charges which may accrue in 47 the prosecution of the certiorari proceeding. 48 § 11-1011 Remedies exclusive. The remedies provided by section 49 11-1009 of this chapter shall be the exclusive remedies available to any 50 person for the review of tax liability imposed by this chapter; and no 51 determination of tax or determination on an application for refund shall 52 be enjoined or reviewed by an action for declaratory judgment, an action 53 for money had and received or by any legal or equitable action or 54 proceeding other than one under article seventy-eight of the civil prac- 55 tice law and rules.S. 8474 780 1 § 11-1012 Reserves. In cases where the taxpayer has paid any tax 2 under written protest stating in detail the ground or grounds therefor, 3 or has applied for a refund and an order under article seventy-eight of 4 the civil practice law and rules to review a determination adverse to 5 the taxpayer on the taxpayer's application for refund, or has deposited 6 the amount of tax assessed in connection with a proceeding under section 7 11-1009 of this chapter the commissioner of finance shall set up appro- 8 priate reserves to meet any decision adverse to the city. 9 § 11-1013 Proceeding to recover tax. a. The commissioner of finance 10 may issue a warrant directed to any officer or employee of the depart- 11 ment of finance commanding him or her to levy upon and sell the real and 12 personal property of the person from whom the tax is due for the payment 13 of the amount thereof, with penalties, and the cost of executing the 14 warrants, and to return such warrant to the commissioner of finance and 15 to pay to him or her the money collected by virtue thereof, and in the 16 execution thereof such officer or employee shall have all the powers 17 conferred by law upon sheriffs, but he or she shall be entitled to no 18 fee or compensation in excess of the actual expenses paid in the 19 performance of such duty. If a warrant is returned not satisfied in 20 full, the commissioner of finance may from time to time issue new 21 warrants and shall also have the same remedies to enforce the amount due 22 pursuant to this section as if the city had recovered judgment therefor 23 and the execution thereon had been returned not satisfied. A copy of 24 any warrant issued may be filed with the county clerk in Richmond county 25 and thereupon such clerk shall enter in the judgment docket the name of 26 the person mentioned in the warrant and the amount of the tax and penal- 27 ty for which the warrant is issued and the date when such copy is filed. 28 Thereupon the amount of such warrant so docketed shall become a lien 29 upon the title to and interest in the real and personal property of the 30 person against whom the warrant is issued. 31 b. As an additional or alternate remedy the commissioner of finance 32 may request the corporation counsel to bring an action in the name of 33 the city to enforce payment of a tax or penalty which any person has 34 failed to pay. 35 c. The commissioner of finance, if he or she finds that the interests 36 of the city will not thereby be jeopardized, and upon such conditions as 37 the commissioner of finance may require, may release any property from 38 the lien of any warrant or vacate such warrant for unpaid taxes, addi- 39 tions to tax, penalties and interest filed pursuant to subdivision a of 40 this section, and such release or vacating of the warrant may be 41 recorded in the office of any recording officer in which such warrant 42 has been filed. The clerk shall thereupon cancel and discharge as of the 43 original date of docketing the vacated warrant. 44 § 11-1014 Notices and limitation of time. a. Any notice authorized or 45 required under the provisions of this chapter may be given by mailing 46 the same to the person for whom it is intended in a post paid envelope 47 addressed to such person at the address given in the return filed by 48 such person pursuant to the provisions of this chapter or if no return 49 has been filed then to such address as may be obtainable. The mailing 50 of such notice shall be presumptive evidence of the receipt of the same 51 by the person to whom addressed. Any period of time which is determined 52 according to the provisions of this chapter by the giving of notice 53 shall commence to run from the date of mailing of such notice. 54 b. The provisions of the civil practice law and rules relative to 55 limitations of time for the enforcement of a civil remedy shall not 56 apply to any proceeding or action by the city taken to levy, appraise,S. 8474 781 1 assess, determine or enforce the collection of any tax or penalty 2 provided by this chapter. 3 § 11-1015 Penalties and interest. a. Any person failing to file a 4 return or corrected return or to pay any tax or any portion thereof that 5 may be required by this chapter shall be subject to a penalty of five 6 times the amount of the tax due, plus five per centum of such tax for 7 each month of delay or fraction thereof, but the commissioner of 8 finance, if satisfied that the delay was excusable, may remit all or any 9 part of such penalty, but not interest. Penalties shall be paid to the 10 commissioner of finance and disposed of in the manner as other receipts 11 under this chapter. Unpaid penalties may be enforced in the same manner 12 as the tax imposed by this chapter. 13 b. Any person filing or causing to be filed any return, certificate, 14 affidavit or statement required or authorized by this chapter, which is 15 wilfully false and any person who shall fail to file a return or to 16 furnish a statement or other information as required under this chapter, 17 shall be guilty of a misdemeanor, punishment for which shall be a fine 18 of not more than one thousand dollars or imprisonment for not more than 19 one year, or both such fine and imprisonment. 20 A certificate of the commissioner of finance to the effect that a tax 21 has not been paid, that a return has not been filed, or that information 22 has not been supplied pursuant to the provisions of this chapter, shall 23 be prima facie evidence thereof. 24 § 11-1016 General powers of the commissioner of finance. In the 25 administration of this chapter, the commissioner of finance is author- 26 ized to: 27 1. Make and publish reasonable rules and regulations as may be neces- 28 sary for the exercise of the commissioner's powers and the performance 29 of the commissioner's duties under this chapter. 30 2. Assess the tax authorized to be imposed under this chapter. 31 3. Subpoena and require the attendance of witnesses and the production 32 of books, papers and other documents, and to take testimony and proofs, 33 under oath, with reference to any matter within the line of the commis- 34 sioner's official duty under this chapter. 35 4. Delegate the commissioner's functions hereunder to a deputy commis- 36 sioner of finance or other employee or employees of the department of 37 finance. 38 5. Prescribe methods for determining the rental values of premises, 39 the occupant of which is taxable pursuant to the provisions of this 40 chapter. 41 6. Require any person who receives or is entitled to receive a consid- 42 eration for the occupation of premises to furnish a statement to the 43 commissioner of finance, upon his or her request, containing information 44 as to the name of each occupant and rental value of each for the occupa- 45 tion of such premises. 46 7. Nothing contained in section 11-1017 of this chapter or in any 47 other provision of this chapter shall be construed to limit the authori- 48 ty of the commissioner of finance, hereby authorized, to furnish any 49 information, whether or not contained in a return, to the tax commission 50 or any other agency or department of the state of New York, or to the 51 treasury department of the United States, or to any agency of the city 52 of Staten Island, or to the district attorney of Richmond county. 53 8. To extend, for cause shown, the time for filing any return for a 54 period not exceeding twenty days. 55 § 11-1017 Returns to be secret. Except in accordance with judicial 56 order, or upon subpoena issued by a court of competent jurisdiction, itS. 8474 782 1 shall be unlawful for the commissioner of finance or any officer or 2 employee of the city to divulge or make known in any manner, any infor- 3 mation contained in any return required under this chapter. Nothing in 4 this section shall be construed to prohibit the delivery to a taxpayer 5 of a certified copy of any return filed by the taxpayer, nor to prohibit 6 the publication of statistics so classified as to prevent the identifi- 7 cation of particular returns, or the inspection by the corporation coun- 8 sel of the return to any taxpayer who shall bring action or proceeding 9 to set aside or review the tax based thereon, or against whom an action 10 or proceeding has been instituted or is contemplated for the collection 11 of a tax or penalty. Returns shall be preserved for three years and 12 thereafter until the commissioner of finance orders them to be 13 destroyed. 14 § 11-1018 Disposition of revenue. All revenues and moneys heretofore 15 or hereafter collected resulting from the imposition of taxes and penal- 16 ties imposed by this chapter shall be deposited in the city treasury, 17 and credited to a separate account. During each fiscal year, an amount 18 not in excess of the amount of the subsidies to be made, and the amount 19 of indebtedness incurred for low rent or slum clearance projects to be 20 paid, during such fiscal year shall be charged to such account and cred- 21 ited to the general fund. No other payments shall be charged to such an 22 account. The mayor may contract to make capital or periodic subsidies 23 to the city housing authority in aid of a low rent project, or may incur 24 indebtedness for a low rent slum clearance project, but such periodic 25 subsidies shall not be contracted for a period longer than the life of 26 such project and in no event for more than fifty years. If the amount 27 of any such periodic subsidy shall be equal to or greater than the 28 interest on and the amounts required annually for the payment of the 29 indebtedness contracted by the authority on account of such project in 30 each year, such contract shall constitute a guarantee of the principal 31 of and the interest on such indebtedness, and such contract and the 32 payments thereunder may be pledged by the authority as security in addi- 33 tion to all other security which the authority may give for such bonds. 34 No such contract or periodic subsidies shall be made until the plan for 35 such project shall have been approved in the manner provided by the 36 public housing law. 37 § 11-1019 Application; construction. If any provision of this chapter 38 shall be adjudged by any court of competent jurisdiction to be invalid, 39 such judgment shall not affect, impair or invalidate the remainder ther- 40 eof, but shall be confined in its operation to the provision directly 41 involved in the controversy in which such judgment shall have been 42 rendered. This chapter shall be construed in conformity with the public 43 housing law. 44 CHAPTER 11 45 UTILITY TAX 46 § 11-1101 Definitions. When used in this chapter the following terms 47 shall mean or include: 48 1. "Person." Includes any individual, partnership, society, associ- 49 ation, joint-stock company, corporation, estate, receiver, lessee, trus- 50 tee, assignee, assignee of rents, referee, or any other person acting in 51 a fiduciary or representative capacity, whether appointed by a court or 52 otherwise, and any combination of individuals. 53 2. "Comptroller." The comptroller of the city. 54 3. "Commissioner of finance." The commissioner of finance of the 55 city.S. 8474 783 1 4. "Gross income." All receipts received in or by reason of any sale 2 made including receipts from the sale of residuals and by-products, 3 except sale of real property, or service rendered in the city, including 4 cash, credits and property of any kind or nature, whether or not such 5 sale is made or such service is rendered for profit, without any 6 deduction therefrom on account of the cost of the property sold, the 7 cost of material used, labor or services, delivery costs, any other 8 costs whatsoever, interest or discount paid, or any other expense what- 9 soever; also profits from the sale of securities; also profits from the 10 sale of real property growing out of the ownership or use of or interest 11 in such property; also profit from the sale of personal property, other 12 than property of a kind which would properly be included in the invento- 13 ry of the taxpayer if on hand at the close of the taxable period for 14 which a return is made; also receipts from interest, dividends and 15 royalties without any deductions therefrom for any expense whatsoever 16 incurred in connection with the receipt thereof, and also gains or 17 profits from any source whatsoever; but shall not include gross income 18 of railroads from the transportation of freight, gross income from the 19 operation of hotels, multiple dwellings or office buildings by persons 20 in the business of operating or leasing sleeping or parlor railroad cars 21 or of operating railroads other than street surface, rapid transit, 22 subway and elevated railroads, or interest or dividends received from a 23 corporation by such persons or by persons subject to taxation under the 24 provisions of section one hundred eighty-six-a of the tax law. Rents or 25 rentals shall not be deemed to be gross receipts subject to tax, except 26 rents or rentals derived from facilities used in the public service; 27 provided, however, that in the case of persons in the business of oper- 28 ating or leasing sleeping or parlor railroad cars or of operating rail- 29 roads other than street surface, rapid transit, subways and elevated 30 railroads, such last-mentioned rents or rentals derived from other such 31 utilities with respect to the operation of terminal facilities shall not 32 be deemed to be gross income subject to tax except for the amount in 33 excess of a user proportion of New York city real property and special 34 franchise taxes and expenses of maintenance and operation. Notwithstand- 35 ing anything to the contrary in this subdivision or any other provision 36 of law, for taxable periods beginning on or after August first, two 37 thousand two, gross income shall include eighty-four percent of charges 38 for the provision of mobile telecommunications services where the place 39 of primary use of the mobile telecommunications services is within the 40 territorial limits of the city except to the extent that such inclusion 41 would result in the taxation of charges for the provision of mobile 42 telecommunications services that is prohibited by federal law. 43 5. "Gross operating income." Includes receipts received in or by 44 reason of any sale made or service rendered, of the property and 45 services specified in subdivision seven of this section in the city, 46 including cash, credits and property of any kind or nature, whether or 47 not such sale is made or such service is rendered for profit, without 48 any deduction therefrom on account of the cost of the property sold, the 49 cost of materials used, labor or other services, delivery costs or any 50 other costs whatsoever, interest or discount paid or any other expenses 51 whatsoever, provided however, that if a vendor of utility service 52 purchases gas, electricity, steam, water or refrigeration or gas, elec- 53 tric, steam, water or refrigeration service in a transaction the 54 receipts from which are not subject to the tax imposed under this chap- 55 ter, the gross operating income derived by such vendor of utility 56 service from the resale of such gas, electricity, steam, water orS. 8474 784 1 refrigeration or such gas, electric, steam, water or refrigeration 2 service to its tenants as an incident to such vendor's activity of rent- 3 ing premises to tenants, shall, if subject to the tax imposed under this 4 chapter on such vendor, be conclusively presumed to be equal to the 5 amount of such vendor's cost, including any associated transportation 6 cost, for the purchase of such gas, electricity, steam, water or refrig- 7 eration or gas, electric, steam, water or refrigeration service for 8 resale by such vendor. Notwithstanding anything to the contrary in this 9 subdivision or any other provision of law, for taxable periods beginning 10 on or after August first, two thousand two, gross operating income shall 11 include eighty-four percent of charges for the provision of mobile tele- 12 communications services where the place of primary use of the mobile 13 telecommunications services is within the territorial limits of the city 14 except to the extent that such inclusion would result in the taxation of 15 charges for the provision of mobile telecommunications services that is 16 prohibited by federal law. 17 6. "Utility." Every person subject to the supervision of the depart- 18 ment of public service and, for taxable periods beginning on or after 19 August first, two thousand two, every person, whether or not supervised 20 by the department of public service, eighty percent or more of the gross 21 receipts of which consists of charges for the provision of mobile tele- 22 communications services to customers. Notwithstanding anything to the 23 contrary in any other provision of law, for purposes of this subdivi- 24 sion, the gross receipts of a person shall not include the gross 25 receipts of any other related or unrelated person. 26 7. "Vendor of utility services." Every person not subject to the 27 supervision of the department of public service, and not otherwise a 28 utility as defined in subdivision six of this section, who furnishes or 29 sells gas, electricity, steam, water or refrigeration, or furnishes or 30 sells gas, electric, steam, water, refrigeration or telecommunications 31 services, or who operates omnibuses, whether or not such operation is on 32 the public streets; regardless of whether such furnishing, selling or 33 operation constitutes the main activity of such person or is merely 34 incidental thereto. 35 8. "Return." Includes any return filed or required to be filed as 36 provided under this chapter. 37 9. "Telecommunications services." Telephony or telegraphy, or tele- 38 phone or telegraph service, including, but not limited to, any trans- 39 mission of voice image, data, information and paging, through the use of 40 wire, cable, fiber-optic, laser, microwave, radio wave, satellite or 41 similar media or any combination thereof and shall include services that 42 are ancillary to the provision of telephone service, such as, but not 43 limited to, dial tone, basic service, directory information, call 44 forwarding, caller-identification, call waiting and the like, and also 45 include any equipment and services provided therewith; provided, howev- 46 er, that the definition of telecommunication services shall not apply to 47 separately stated charges for any service that alters the substantive 48 content of the message received by the recipient from that sent; and 49 that such services shall not include (i) cable television services that 50 consist of the transmitting to subscribers of programs broadcast by one 51 or more television or radio stations or any other programs originated by 52 any person by means of wire, cable, microwave or any other means or (ii) 53 air safety and navigation services where such telecommunication service 54 is provided by an organization, at least ninety percent of which, if a 55 corporation, ninety percent of the voting stock of which, is owned, 56 directly or indirectly, by air carriers, and which organization's prin-S. 8474 785 1 cipal function is to fulfill the requirements of (a) the federal 2 aviation administration, or the successor thereto, or (b) the interna- 3 tional civil aviation organization, or the successor thereto, relating 4 to the existence of a communication system between aircraft and 5 dispatcher, aircraft and air traffic control or ground station and 6 ground station, or any combination of such, for the purposes of air 7 safety and navigation. 8 10. "Limited fare omnibus company." An omnibus company whose principal 9 source of revenue is derived from the daily transportation of passengers 10 wholly within the city on a route or zoned portion thereof pursuant to a 11 franchise agreement with, or consent of, the city, at the following 12 fares: for the period from August first, nineteen hundred sixty-five 13 until and including December thirty-first, nineteen hundred seventy- 14 five, at a fare not in excess of thirty-five cents per passenger; for 15 the period from January first, nineteen hundred seventy-six until and 16 including June twenty-seventh, nineteen hundred eighty, at a fare not in 17 excess of fifty cents per passenger; for the period from June twenty- 18 eighth, nineteen hundred eighty until and including August thirty-first, 19 nineteen hundred eighty, at a fare not in excess of sixty cents per 20 passenger; for the period from September first, nineteen hundred eighty 21 and thereafter, at a fare not in excess of the regular rate of fare 22 charged per passenger for comparable service both local and express on 23 regular rapid transit and surface lines operated by the New York city 24 transit authority. For purposes of this subdivision, the term "regular 25 rate of fare" shall be exclusive of fares for special train or bus 26 service, or additional charges for bridge or tunnel tolls or transfer 27 privileges. 28 11. "Commuter service." Mass transportation service, exclusive of 29 limited stop service to airports, racetracks or any place where enter- 30 tainment, amusement or sport activities are held or where recreational 31 facilities are supplied, provided pursuant to a franchise with, or 32 consent of, the city of New York. 33 12. "Tax appeals tribunal." The tax appeals tribunal established by 34 section one hundred sixty-eight of the charter of the preceding munici- 35 pality. 36 13. "Base Year." Means the calendar year ending immediately prior to 37 the calendar year containing the taxable period or periods for which a 38 return is required to be filed pursuant to the provisions of section 39 11-1104 of this chapter. 40 14. "Taxable Period." Means the period for which a return is required 41 to be filed pursuant to the provisions of this chapter and shall be 42 either (i) the semiannual period beginning the first day of January or 43 the first day of July of the calendar year, or (ii) the calendar month. 44 15. "Premises." Means for purposes of section 11-1102 of this chapter, 45 any real property or part thereof, and any structure thereon or space 46 therein. 47 16. "Tenant." Means a person paying, or required to pay, rent for 48 premises as a lessee, sublessee, licensee or concessionaire. 49 17. "Mobile telecommunications services." Telecommunications services 50 that are commercial mobile radio services. 51 18. "Commercial mobile radio services." Commercial mobile radio 52 services as defined in section 20.3 of title forty-seven of the Code of 53 Federal Regulations as in effect on June first, nineteen hundred nine- 54 ty-nine. 55 19. "Charges for mobile telecommunications services." Any charge for, 56 or associated with, the provision of mobile telecommunications servicesS. 8474 786 1 and any charge for, or associated with, a service provided as an adjunct 2 to mobile telecommunications services that is billed to the customer by 3 or for the customer's home service provider regardless of whether indi- 4 vidual transmissions originate or terminate within the licensed service 5 area of the home service provider. 6 20. "Place of primary use." The street address representative of where 7 the customer's use of the mobile telecommunications services primarily 8 occurs, which must be (i) the residential street address or the primary 9 business street address of the customer; and (ii) within the licensed 10 service area of the home service provider. 11 21. "Licensed service area." The geographic area in which the home 12 service provider is authorized by law or contract to provide commercial 13 mobile radio services to the customer. 14 22. "Home service provider." The facilities-based carrier or reseller 15 with which the customer contracts for the provision of mobile telecommu- 16 nications services. 17 23. "Customer." The person or entity that contracts with the home 18 service provider for mobile telecommunications services. If the end user 19 of mobile telecommunications services is not the contracting party, 20 then, solely for purposes of subdivision twenty of this section, the 21 term "customer" shall mean the end user of the mobile telecommunications 22 services. The term customer does not include a reseller of mobile tele- 23 communications services, or a serving carrier under an arrangement to 24 serve the customer outside the home service provider's licensed service 25 area. 26 24. "Reseller." A provider who purchases telecommunications services 27 from another telecommunications service provider and then resells, uses 28 as a component part of, or integrates the purchased services into a 29 mobile telecommunications service. The term reseller does not include a 30 serving carrier with which a home service provider arranges for the 31 services to its customers outside the home service provider's licensed 32 service area. 33 25. "Serving carrier." A facilities-based carrier providing mobile 34 telecommunications service to a customer outside a home service provid- 35 er's or reseller's licensed service area. 36 26. "Cogeneration facility" means (i) a facility that was in operation 37 before January first, two thousand four and that produces electric ener- 38 gy and steam or other forms of useful energy, such thermal energy, that 39 are supplied to and used by tenants and/or occupants of a cooperative 40 corporation for industrial, commercial, or residential heating or cool- 41 ing purposes; or (ii) a cogeneration facility, as defined in clause (i) 42 of this subparagraph, that has been replaced by any other facility used 43 to generate electricity and steam or other forms of useful energy, such 44 as thermal energy, when such electricity and steam or other forms of 45 useful energy, such as thermal energy, are supplied to and used by 46 tenants and/or occupants of a cooperative corporation. 47 27. "Enhanced zip code." A United States postal zip code of nine or 48 more digits. 49 28. "Cooperative corporation" means a corporation organized under the 50 laws of New York, at least some of the stockholders of which are enti- 51 tled, by reason of the stockholders' ownership interest of stock in the 52 corporation, to occupy for dwelling purposes an apartment in a building 53 owned by the corporation pursuant to a lease or occupancy agreement with 54 the corporation. 55 § 11-1102 Imposition of excise tax. a. Notwithstanding any other 56 provisions of law to the contrary, for the privilege of exercising itsS. 8474 787 1 franchise or franchises, or of holding property, or of doing business in 2 the city, on or after August first, nineteen hundred sixty-five, every 3 utility shall pay to the commissioner of finance an excise tax which 4 shall be equal to two per centum of its gross income until and including 5 December thirty-first, nineteen hundred sixty-five, and shall be equal 6 to two and thirty-five hundredths per centum thereafter, except that the 7 rate as to persons engaged in the business of operating omnibuses with a 8 carrying capacity of more than seven persons shall be one per centum 9 until and including December thirty-first, nineteen hundred sixty-five, 10 and one and seventeen hundredths per centum thereafter, and except that 11 as to persons engaged in the business of operating or leasing sleeping 12 and parlor railroad cars or of operating railroads other than street 13 surface, rapid transit, subway and elevated railroads, the rate shall be 14 three per centum until and including December thirty-first, nineteen 15 hundred sixty-five, and three and fifty-two one hundredths per centum 16 thereafter, and every vendor of utility services in the city shall pay 17 to the commissioner of finance an excise tax which shall be equal to two 18 per centum of its gross operating income until and including December 19 thirty-first, nineteen hundred sixty-five, and shall be equal to two and 20 thirty-five one hundredths per centum thereafter, except that as to 21 persons engaged in the business of operating omnibuses with a carrying 22 capacity of more than seven persons other than omnibuses used exclu- 23 sively for the transportation of children to and from schools operated 24 under contracts made pursuant to the provisions of the education law, 25 and not subject to the jurisdiction of the department of public service, 26 the rate shall be one per centum of its gross operating income until and 27 including December thirty-first, nineteen hundred sixty-five, and one 28 and seventeen hundredths per centum thereafter. Such tax shall be in 29 addition to any and all other taxes, charges and fees imposed by any 30 other provision of law and shall be paid at the time and in the manner 31 provided in this section, but any person to the extent that it is 32 subject to tax pursuant to this section shall not be liable to any tax 33 under any other of the local laws of the preceding municipality as it 34 existed January first, nineteen hundred ninety-four enacted pursuant to 35 chapter ninety-three of the laws of nineteen hundred sixty-five as 36 amended, or the former article two-b of the general city law, with 37 respect to its gross income or gross operating income taxed pursuant to 38 this section, as the case may be. 39 b. So much of the gross income of a utility shall be excluded from the 40 measure of the tax imposed by this chapter, as is derived from sales for 41 resale to vendors of utility services validly subject to the tax imposed 42 by this chapter, except to the extent that such gross income is derived 43 from sales of gas, electricity, steam, water or refrigeration or sales 44 or rendering of gas, electric, steam, water or refrigeration service to 45 a vendor of utility services for resale to its tenants as an incident to 46 such vendor's activity of renting premises to tenants. 47 c. For the purpose of proper administration of this chapter and to 48 prevent evasion of the tax imposed by this section, it shall be presumed 49 that the gross income or gross operating income of any person taxable 50 pursuant to this section is taxable and is derived from business 51 conducted wholly within the territorial limits of the city until the 52 contrary is established, and the burden of proving that any part of its 53 gross income or gross operating income is not so derived shall be upon 54 such person. Notwithstanding anything to the contrary in this subdivi- 55 sion or in any provision of section twenty-b of the general city law or 56 any other provision of law, for taxable periods beginning on or afterS. 8474 788 1 August first, two thousand two, gross income and gross operating income 2 derived from the provision of mobile telecommunications services shall 3 be deemed to be derived from business conducted wholly within the terri- 4 torial limits of the city where the place of primary use of the mobile 5 telecommunications services is within the territorial limits of the 6 city. 7 d. The tax imposed by this chapter shall be inapplicable to the gross 8 income received by a limited fare omnibus company until and including 9 August thirty-first, nineteen hundred eighty. Thereafter, such tax shall 10 be applicable to such gross income received as follows: (1) for gross 11 income received from commuter service from September first, nineteen 12 hundred eighty until and including December thirty-first, nineteen 13 hundred eighty-three, the rate of tax shall be one hundredth of one per 14 centum; (2) for gross income received from commuter service from January 15 first, nineteen hundred eighty-four and thereafter, the rate of tax 16 shall be one tenth of one per centum; and (3) for gross income received 17 from all other sources, the rate of tax shall be as provided in subdivi- 18 sion a of this section. 19 e. The gross operating income of a vendor of utility services derived 20 from sales to its tenants of gas, electricity, steam, water, or refrig- 21 eration or sales or rendering to its tenants of gas, electric, steam, 22 water or refrigeration service, as an incident to such vendor's activity 23 of renting premises to tenants, shall be excluded from the measure of 24 the tax imposed by this chapter, but, with regard to sales to its 25 tenants of gas, electricity, or steam or sales or rendering to its 26 tenants of gas, electric or steam service, only to the extent that the 27 tax imposed by this chapter has been validly paid or accrued with 28 respect to a prior sale of such gas, electricity or steam or sale or 29 rendering of gas, electric or steam service. 30 f. (1) Notwithstanding anything contained in this chapter to the 31 contrary, for taxable periods beginning on or after August first, two 32 thousand two, if a partnership is subject to the tax imposed by this 33 chapter as a utility or as a vendor of utility services, no person who 34 is a partner in such a partnership shall be subject to the tax imposed 35 by this chapter on such partner's distributive share of the gross income 36 or gross operating income of such partnership. 37 (2) If a person is a partner in a partnership subject to the tax 38 imposed by this chapter and that person is separately subject to the 39 supervision of the state department of public service or is a utility or 40 a vendor of utility services based on its activities exclusive of any 41 activities of such partnership, for taxable periods beginning on or 42 after August first, two thousand two, such person shall be subject to 43 the tax imposed by this chapter only on its separate gross income or 44 separate gross operating income, which shall not include such person's 45 distributive share of the gross income or gross operating income of such 46 partnership. 47 (3) For purposes of this subdivision, the term "partner" shall include 48 a person who receives a distributive share of the gross income or gross 49 operating income, directly or indirectly through one or more tiers of 50 partnerships, of a partnership subject to the tax imposed by this chap- 51 ter. 52 g. Notwithstanding anything else contained in this chapter to the 53 contrary, for the taxable periods beginning on or after January first, 54 two thousand six, if a cooperative corporation containing at least 55 fifteen hundred apartments furnishes or sells electricity, steam, 56 refrigeration or water, or furnishes or sells electric, steam, refriger-S. 8474 789 1 ation or water services that are (i) metered, (ii) generated or produced 2 by a cogeneration facility owned or operated by such cooperative corpo- 3 ration, and (iii) such electricity, steam, refrigeration or water and/or 4 electric, steam, refrigeration or water services are distributed to 5 tenants and/or occupants of a cooperative corporation, then such cooper- 6 ative corporation shall pay to the commissioner of finance an excise tax 7 which shall be equal to zero per centum of its gross income or its gross 8 operating income, as the case may be. 9 § 11-1103 Records to be kept. Every person subject to tax pursuant to 10 this chapter shall keep records of its business and in such form as the 11 commissioner of finance may by regulation require. Such records shall 12 be offered for inspection and examination at any time upon demand by 13 such commissioner or his or her duly authorized agent or employee and 14 shall be preserved for a period of three years, except that the commis- 15 sioner of finance may consent to their destruction within that period or 16 may require that they be kept longer. 17 § 11-1104 Returns; requirements as to. a. Except as otherwise 18 provided in subdivision e of this section with respect to taxable peri- 19 ods beginning after nineteen hundred ninety-eight, on or before the 20 twenty-fifth day of September, nineteen hundred sixty-five, and on or 21 before the twenty-fifth day of every month thereafter, every person 22 subject to tax pursuant to this chapter shall file a return with the 23 commissioner of finance on a form to be prescribed by such commissioner. 24 Such return shall state the gross income or gross operating income as 25 the case may be for the preceding calendar month, and shall contain any 26 other data, information or other matter which the commissioner of 27 finance may require to be included therein. The commissioner of finance 28 may require at any further time a supplemental return, which shall 29 contain any data upon such matters as such commissioner may specify. 30 Notwithstanding the provisions of this subdivision and notwithstanding 31 the provisions of subdivision e of this section, a vendor of utility 32 services, all of whose gross operating income is excluded from the meas- 33 ure of the tax imposed by this chapter pursuant to subdivision e of 34 section 11-1102 of this chapter during any taxable period, shall not be 35 required to file a return for such taxable period, provided, however, 36 that on or before the first day of September of each year, any such 37 vendor of utility services who was not required to file a return for any 38 taxable period during the period covered by the statement required to be 39 filed by such date pursuant to subdivision a of section 11-208.1 of this 40 title shall file an information return covering such period in such form 41 and containing such information as the commissioner of finance may spec- 42 ify. 43 b. The commissioner of finance may require amended returns to be filed 44 within twenty days after notice and to contain the information specified 45 in the notice. 46 c. If a return required by this chapter is not filed or if a return 47 when filed is incorrect or insufficient on its face, the commissioner of 48 finance shall take the necessary steps to enforce the filing of such 49 return or of a corrected return. 50 d. Where the state tax commission changes or corrects a taxpayer's 51 sales and compensating use tax liability with respect to the purchase or 52 use of items for which a sales or compensating use tax credit against 53 the tax imposed by this chapter was claimed, the taxpayer shall report 54 such change or correction to the commissioner of finance within ninety 55 days of the final determination of such change or correction, or as 56 required by the commissioner of finance, and shall concede the accuracyS. 8474 790 1 of such determination or state wherein it is erroneous. Any taxpayer 2 filing an amended return or report with the state tax commission relat- 3 ing to the purchase or use of such items shall also file within ninety 4 days thereafter a copy of such amended return or report with the commis- 5 sioner of finance. 6 e. With respect to taxable periods beginning after nineteen hundred 7 ninety-eight, notwithstanding the provisions of subdivision a of this 8 section, if the amount of tax imposed pursuant to this section on any 9 person in the base year does not exceed one hundred thousand dollars, 10 the taxable period for which such person is required to file a return is 11 the semiannual period described in paragraph i of subdivision fourteen 12 of section 11-1101 of this chapter, and such person shall file a return 13 for each semiannual period of the first calendar year beginning after 14 the base year on or before the twenty-fifth day of the month following 15 the end of each such taxable period. Such return shall be filed with the 16 commissioner of finance on a form to be prescribed by such commissioner. 17 Such return shall state the gross income or gross operating income as 18 the case may be for the preceding taxable period and shall contain any 19 other data, information or other matter which the commissioner of 20 finance may require to be included therein. The commissioner of finance 21 may require at any further time a supplemental return, which shall 22 contain any data upon such matters as such commissioner may specify. For 23 the purposes of this subdivision, if the amount of tax imposed pursuant 24 to this chapter on such person in the base year is for a period of less 25 than one year, the amount of tax imposed on such person shall be annual- 26 ized by multiplying the amount of tax imposed by a fraction, the denomi- 27 nator of which is the number of months or parts thereof during which the 28 person was subject to the tax imposed pursuant to this chapter and the 29 numerator of which is twelve. Notwithstanding the provisions of this 30 subdivision, a person that first becomes subject to the tax pursuant to 31 this chapter shall file a return for each month in the calendar year in 32 which such person first becomes subject to such tax in accordance with 33 subdivision a of this section. 34 § 11-1105 Payment of tax; credit for certain sales and compensating 35 use taxes. a. At the time of filing each return, as provided under 36 section 11-1104 of this chapter, each person taxable pursuant to this 37 chapter shall pay to the commissioner of finance the taxes imposed by 38 this chapter upon its gross income or gross operating income, as the 39 case may be, for the taxable period covered by such return, less any 40 credit to which such person may be entitled under subdivision b of this 41 section. Such taxes shall be due and payable on the last day on which 42 the return for such period is required to be filed, regardless of wheth- 43 er a return is filed or whether the return which is filed correctly 44 indicates the amount of tax due. 45 b. (1) A taxpayer shall be allowed a credit against the taxes imposed 46 by this chapter for the amount of sales and compensating use taxes 47 imposed by section eleven hundred seven of the tax law which became 48 legally due on or after, and which were paid on or after, July first, 49 nineteen hundred seventy-seven but within the taxable period for which a 50 credit is claimed, with respect to the purchase or use by the taxpayer 51 of machinery or equipment for use or consumption directly and predomi- 52 nantly in the production of steam for sale, by manufacturing, process- 53 ing, generating, assembling, refining, mining or extracting, or tele- 54 phone central office equipment or station apparatus or comparable 55 telegraph equipment for use directly and predominantly in receiving at 56 destination or initiating and switching telephone or telegraph communi-S. 8474 791 1 cation, but not including parts with a useful life of one year or less 2 or tools or supplies used in connection with such machinery, equipment 3 or apparatus. 4 (2) The amount of the credit provided in paragraph one of this subdi- 5 vision shall be limited to the amount of such sales and compensating use 6 taxes paid during the taxable period covered by the return under this 7 chapter on which the credit is taken less the amount of any credit or 8 refund of such sales and compensating use taxes during such taxable 9 period. If such credit exceeds the amount of tax under this chapter 10 payable for the taxable period in question, such excess amount shall be 11 refunded or credited except in the case of a vendor of utility services 12 who is entitled to a credit and/or refund for such sales and compensat- 13 ing use taxes under chapter five or six of this title. The credit 14 allowed under this subdivision shall be deemed an erroneous payment of 15 tax by the taxpayer to be credited or refunded in accordance with the 16 provisions of section 11-1108 of this chapter, except as otherwise 17 provided in this paragraph. 18 (3) Where the taxpayer receives a refund or credit of any tax imposed 19 under section eleven hundred seven of the tax law for which the taxpayer 20 has claimed a credit under the provisions of this subdivision in a prior 21 taxable period, the amount of such refund or credit shall be added to 22 the tax imposed by section 11-1102 of this chapter of the taxable period 23 in which such refund or credit of tax under section eleven hundred seven 24 of the tax law is received. 25 § 11-1105.1 Credit for rebates of charges for energy. A taxpayer shall 26 be allowed a credit against the amount of taxes imposed by this chapter 27 for the amount of special rebates and discounts made in accordance with 28 the provisions of section 22-602 of the code of the preceding munici- 29 pality and for the amount of special rebates and discounts made in 30 accordance with the provisions of section twenty-five-bb of the general 31 city law. Such credit shall be applied against the amount of tax other- 32 wise required to be paid as provided in subdivision a of section 11-1105 33 of this chapter and shall be claimed for the taxable period immediately 34 succeeding the taxable period in which such rebates or discounts are 35 made. 36 § 11-1105.2 Relocation and employment assistance program credit. (a) A 37 taxpayer that has obtained the certifications required by chapter six-B 38 of title twenty-two of the code of the preceding municipality shall be 39 allowed a credit against the tax imposed by this chapter, provided, 40 however, that a taxpayer that is a vendor of utility services shall not 41 be allowed the credit against the tax imposed by this chapter unless it 42 elects as provided in subdivision (d) of section 22-622 of the code of 43 the preceding municipality to take the credit against the tax imposed by 44 this chapter. The amount of the credit shall be the amount determined by 45 multiplying one thousand dollars or, in the case of an eligible business 46 that has obtained pursuant to chapter six-B of such title twenty-two a 47 certification of eligibility dated on or after July first, two thousand, 48 for a relocation to eligible premises located within a revitalization 49 area defined in subdivision (n) of section 22-621 of the code of the 50 preceding municipality, three thousand dollars, by the number of eligi- 51 ble aggregate employment shares maintained by the taxpayer during the 52 calendar year with respect to particular premises to which the taxpayer 53 has relocated; provided, however, with respect to a relocation for which 54 no application for a certificate of eligibility is submitted prior to 55 July first, two thousand three, to eligible premises that are within a 56 revitalization area, if the date of such relocation as determined pursu-S. 8474 792 1 ant to subdivision (j) of section 22-621 of the code of the preceding 2 municipality is on or after January first, nineteen hundred ninety-nine, 3 and before July first, two thousand, the amount to be multiplied by the 4 number of eligible aggregate employment shares shall be one thousand 5 dollars; provided, however, that no credit shall be allowed for the 6 relocation of any retail activity or hotel services; and provided that 7 in the case of an eligible business that has obtained pursuant to chap- 8 ter six-B of such title twenty-two certifications of eligibility for 9 more than one relocation, the portion of the total amount of eligible 10 aggregate employment shares to be multiplied by the dollar amount speci- 11 fied in this subdivision for each such certification of a relocation 12 shall be the number of total attributed eligible aggregate employment 13 shares determined with respect to such relocation pursuant to subdivi- 14 sion (o) of section 22-621 of the code of the preceding municipality. 15 For purposes of this subdivision, the terms "eligible aggregate employ- 16 ment shares", "relocate", "retail activity" and "hotel services" shall 17 have the meanings ascribed by section 22-621 of the code of the preced- 18 ing municipality. 19 (b) The credit allowed under this subdivision with respect to eligible 20 aggregate employment shares maintained with respect to particular prem- 21 ises to which the taxpayer has relocated shall be allowed for the taxa- 22 ble periods in the first calendar year during which such eligible aggre- 23 gate employment shares are maintained with respect to such premises and 24 for taxable periods in any of the twelve succeeding calendar years 25 during which eligible aggregate employment shares are maintained with 26 respect to such premises, provided that the credit allowed for the taxa- 27 ble periods in the twelfth succeeding calendar year shall be calculated 28 by multiplying the number of eligible aggregate employment shares main- 29 tained with respect to such premises in the twelfth succeeding calendar 30 year by the lesser of one and a fraction the numerator of which is the 31 number of days in the calendar year of relocation less the number of 32 days the eligible business maintained employment shares in the eligible 33 premises in the calendar year of relocation and the denominator of which 34 is the number of days in such twelfth succeeding year during which such 35 eligible aggregate employment shares are maintained with respect to such 36 premises. The credit allowable under this section shall be applied 37 against the amount of tax otherwise required to be paid for the last 38 taxable period of the calendar year as provided in subdivision a of 39 section 11-1105 of this chapter, shall be deducted from the taxpayer's 40 tax prior to the deduction of the credit provided in subdivision b of 41 such section, and shall be claimed on the tax return for the last taxa- 42 ble period of the calendar year. Except as provided in subdivision (c) 43 of this section, if the amount of the credit allowable under this subdi- 44 vision for any calendar year exceeds the tax imposed for such last taxa- 45 ble period in such calendar year, the excess may be carried over, in 46 order, to the immediately succeeding taxable periods in the five imme- 47 diately succeeding calendar years and, to the extent not previously 48 allowable, shall be applied against the tax otherwise required to be 49 paid for such periods. Such carryover credit shall be deducted from the 50 taxpayer's tax prior to the deduction of the credit provided in subdivi- 51 sion b of section 11-1105 of this chapter. With respect to the last 52 taxable period in a calendar year, the credit for such calendar year 53 shall be taken prior to any carryover credit. If in any period there are 54 carryover credits available from more than one year, such credits shall 55 be applied against the tax in the order in which they were earned with 56 the oldest available credit being taken first.S. 8474 793 1 (c) In the case of a taxpayer that has obtained a certification of 2 eligibility pursuant to chapter six-B of title twenty-two of the code of 3 the preceding municipality dated on or after July first, two thousand 4 for a relocation to eligible premises located within the revitalization 5 area defined in subdivision (n) of section 22-621 of the code of the 6 preceding municipality, the credits allowed under this section, or in 7 the case of a taxpayer that has relocated more than once, the portion of 8 such credits attributed to such certification of eligibility pursuant to 9 subdivision (a) of this section, against the tax imposed by this chapter 10 for the calendar year of such relocation and for the four calendar years 11 immediately succeeding the calendar year of such relocation, shall be 12 deemed to be erroneous payments of tax by the taxpayer to be credited or 13 refunded, in accordance with the provisions of section 11-1108 of this 14 chapter. For such calendar years, such credits or portions thereof may 15 not be carried over to any succeeding taxable year; provided, however, 16 that this subdivision shall not apply to any relocation for which an 17 application for a certification of eligibility was not submitted prior 18 to July first, two thousand three unless the date of such relocation is 19 on or after July first, two thousand. 20 § 11-1105.3 Lower Manhattan relocation employment assistance credit. 21 (a) A taxpayer that has obtained the certifications required by chapter 22 six-C of title twenty-two of the code of the preceding municipality 23 shall be allowed a credit against the tax imposed by this chapter, 24 provided, however, that a taxpayer that is a vendor of utility services 25 shall not be allowed the credit against the tax imposed by this chapter 26 unless it elects as provided in subdivision (d) of section 22-624 of the 27 code of the preceding municipality to take the credit against the tax 28 imposed by this chapter. The amount of the credit shall be the amount 29 determined by multiplying three thousand dollars by the number of eligi- 30 ble aggregate employment shares maintained by the taxpayer during the 31 calendar year with respect to eligible premises to which the taxpayer 32 has relocated; provided, however, that no credit shall be allowed for 33 the relocation of any retail activity or hotel services. For purposes of 34 this subdivision, the terms "eligible aggregate employment shares", 35 "eligible premises", "relocate", "retail activity" and "hotel services" 36 shall have the meanings ascribed by section 22-623 of the code of the 37 preceding municipality. 38 (b) The credit allowed under this section with respect to eligible 39 aggregate employment shares maintained with respect to eligible premises 40 to which the taxpayer has relocated shall be allowed for the taxable 41 period in which the relocation to eligible premises takes place and for 42 succeeding taxable periods in the calendar year of the relocation and in 43 any of the twelve succeeding calendar years during which eligible aggre- 44 gate employment shares are maintained with respect to eligible premises, 45 provided that the credit allowed for the taxable periods in the twelfth 46 succeeding calendar year shall be calculated by multiplying the number 47 of eligible aggregate employment shares maintained with respect to 48 eligible premises in the twelfth succeeding calendar year by the lesser 49 of one and a fraction the numerator of which is the number of days in 50 the calendar year of relocation less the number of days the taxpayer 51 maintained employment shares in eligible premises in the calendar year 52 of relocation and the denominator of which is the number of days in such 53 twelfth succeeding calendar year during which such eligible aggregate 54 employment shares are maintained with respect to such premises. The 55 credit allowable under this section shall be applied against the amount 56 of tax otherwise required to be paid for the last taxable period of theS. 8474 794 1 calendar year as provided in subdivision a of section 11-1105 of this 2 chapter, shall be deducted from the taxpayer's tax prior to the 3 deduction of the credit provided in subdivision b of such section but 4 after the credit provided for in section 11-1105.2 of this chapter, and 5 shall be claimed on the tax return for the last taxable period of the 6 calendar year. Except as provided in subdivision (c) of this section, if 7 the amount of the credit allowable under this subdivision for any calen- 8 dar year exceeds the tax imposed for such last taxable period in such 9 calendar year, the excess may be carried over, in order, to the imme- 10 diately succeeding taxable periods in the five immediately succeeding 11 calendar years and, to the extent not previously allowable, shall be 12 applied against the tax otherwise required to be paid for such periods. 13 Such carryover credit shall be deducted from the taxpayer's tax prior to 14 the deduction of the credit provided in subdivision b of section 11-1105 15 of this chapter but after the credit provided for in section 11-1105.2 16 of this chapter. With respect to the last taxable period in a calendar 17 year, the credit for such calendar year shall be taken prior to any 18 carryover credit. If in any period there are carryover credits available 19 from more than one year, such credits shall be applied against the tax 20 in the order in which they were earned with the oldest available credit 21 being taken first. 22 (c) The credits allowed under this section, against the tax imposed by 23 this chapter for the calendar year of the relocation and for the four 24 taxable years immediately succeeding the calendar year of such relo- 25 cation, shall be deemed to be overpayments of tax by the taxpayer to be 26 credited or refunded, without interest, in accordance with the 27 provisions of section 11-1108 of this chapter. For such calendar years, 28 such credits or portions thereof may not be carried over to any succeed- 29 ing calendar year. 30 § 11-1106 Determination of tax. In case the return required by this 31 chapter shall be insufficient or unsatisfactory or if such return is not 32 filed, the commissioner of finance shall determine the amount of the tax 33 due from such information as is obtainable, and if necessary the tax may 34 be estimated upon the basis of external indices. Notice of such determi- 35 nation shall be given to the person liable for the payment of the tax. 36 Such determination shall finally and irrevocably fix such tax unless the 37 person against whom it is assessed, within ninety days after the giving 38 of notice of such determination or, if the commissioner of finance has 39 established a conciliation procedure pursuant to section 11-124 of this 40 title and the taxpayer has requested a conciliation conference in 41 accordance therewith, within ninety days from the mailing of a concil- 42 iation decision or the date of the commissioner's confirmation of the 43 discontinuance of the conciliation proceeding, both (1) serves a peti- 44 tion upon the commissioner of finance and (2) files a petition with the 45 tax appeals tribunal for a hearing, or unless such commissioner of his 46 or her own motion shall redetermine the same. Such hearing and any 47 appeal to the tax appeals tribunal sitting en banc from the decision 48 rendered in such hearing shall be conducted in the manner and subject to 49 the requirements prescribed by the tax appeals tribunal pursuant to 50 sections one hundred sixty-eight through one hundred seventy-two of the 51 charter of the preceding municipality as it existed January first, nine- 52 teen hundred ninety-four. After such hearing the tax appeals tribunal 53 shall give notice of its decision to the person against whom the tax is 54 assessed and to the commissioner of finance. A decision of the tax 55 appeals tribunal sitting en banc shall be reviewable for error, illegal- 56 ity, unconstitutionality or any other reason whatsoever by a proceedingS. 8474 795 1 under article seventy-eight of the civil practice law and rules if 2 instituted by the person against whom the tax was assessed within four 3 months after the giving of the notice of such tax appeals tribunal deci- 4 sion. A proceeding under such article of such law and rules shall not be 5 instituted by a taxpayer unless (a) the amount of any tax sought to be 6 reviewed with penalties and interest thereon, if any, shall first be 7 deposited with the commissioner of finance and there shall be filed with 8 such commissioner an undertaking, issued by a surety company authorized 9 to transact business in this state and approved by the superintendent of 10 insurance of this state as to solvency and responsibility, in such 11 amount and with such sureties as a justice of the supreme court shall 12 approve, to the effect that if such proceeding be dismissed or the tax 13 confirmed, the taxpayer will pay all costs and charges which may accrue 14 in the prosecution of the proceeding, or (b) at the option of the 15 taxpayer such undertaking filed with the commissioner of finance may be 16 in a sum sufficient to cover the taxes, penalties and interest thereon 17 stated in such decision, plus the costs and charges which may accrue 18 against it in the prosecution of the proceeding, in which event the 19 taxpayer shall not be required to deposit such taxes, penalties and 20 interest as a condition precedent to the application. 21 § 11-1107 Assessment of tax where change or correction of sales and 22 compensating use tax liability involved. a. If a taxpayer fails to 23 comply with subdivision d of section 11-1104 of this chapter in not 24 reporting a change or correction of its sales and compensating use tax 25 liability or in not filing a copy of an amended return or report relat- 26 ing to its sales and compensating use tax liability, instead of the mode 27 and time of assessment provided for in section 11-1106 of this chapter, 28 the commissioner of finance may assess a deficiency based upon such 29 changed or corrected sales and compensating use tax liability, as same 30 relates to credits claimed under this chapter, by mailing to the taxpay- 31 er a notice of additional tax due specifying the amount of the deficien- 32 cy, and such deficiency, together with the interest and penalties stated 33 in such notice, shall be deemed assessed on the date such notice is 34 mailed unless within thirty days after the mailing of such notice a 35 report of the state change or correction or a copy of an amended return 36 or report, where such copy was required, is filed accompanied by a 37 statement showing wherein such state determination and such notice of 38 additional tax due are erroneous. Such notice shall not be considered as 39 a notice of determination for the purposes of section 11-1106 of this 40 chapter. 41 b. If a report filed pursuant to subdivision d of section 11-1104 of 42 this chapter concedes the accuracy of a state change or correction of 43 sales and compensating use tax liability, any deficiency in tax result- 44 ing therefor shall be deemed assessed on the date of filing such report. 45 § 11-1108 Refunds. a. In the manner provided in this section the 46 commissioner of finance shall refund or credit, without interest, any 47 tax, penalty or interest erroneously, illegally or unconstitutionally 48 collected or paid, if application for such refund shall be made to the 49 commissioner of finance within three years from the time the return was 50 filed or two years from the time the tax was paid, whichever of such 51 periods expires later, or if no return was filed, within two years from 52 the time the tax was paid. If the claim is filed within the three-year 53 period, the amount of the credit or refund shall not exceed the portion 54 of the tax paid within the three years immediately preceding the filing 55 of the claim plus the period of any extension of time for filing the 56 return. Whenever a refund or credit is made or denied by the commission-S. 8474 796 1 er of finance, he or she shall state his or her reason therefor and give 2 notice thereof to the taxpayer in writing. The commissioner of finance 3 may, in lieu of any refund required to be made, allow credit therefor on 4 payments due from the applicant. 5 b. Any determination of the commissioner of finance denying a refund 6 or credit pursuant to subdivision a of this section shall be final and 7 irrevocable unless the applicant for such refund or credit, within nine- 8 ty days from the mailing of notice of such determination, or, if the 9 commissioner of finance has established a conciliation procedure pursu- 10 ant to section 11-124 of this title and the applicant has requested a 11 conciliation conference in accordance therewith, within ninety days from 12 the mailing of a conciliation decision or the date of the commissioner's 13 confirmation of the discontinuance of the conciliation proceeding, both 14 (1) serves a petition upon the commissioner of finance and (2) files a 15 petition with the tax appeals tribunal for a hearing. Such petition for 16 a refund or credit, made as provided in this section, shall be deemed an 17 application for a revision of any tax, penalty or interest complained 18 of. Such hearing and any appeal to the tax appeals tribunal sitting en 19 banc from the decision rendered in such hearing shall be conducted in 20 the manner and subject to the requirements prescribed by the tax appeals 21 tribunal pursuant to sections one hundred sixty-eight through one 22 hundred seventy-two of the charter of the preceding municipality as it 23 existed January first, nineteen hundred ninety-four. After such hearing, 24 the tax appeals tribunal shall give notice of its decision to the appli- 25 cant and to the commissioner of finance. The applicant shall be entitled 26 to institute a proceeding under article seventy-eight of the civil prac- 27 tice law and rules to review a decision of the tax appeals tribunal 28 sitting en banc if application to the supreme court be made therefor 29 within four months after the giving of notice of such decision, and 30 provided, in the case of an application by a taxpayer, a final determi- 31 nation of tax due was not previously made. 32 c. If a taxpayer is required by subdivision d of section 11-1104 of 33 this chapter to file a report or amended return in respect of a change 34 or correction of its sales and compensating use tax liability, claim for 35 credit or refund of any resulting overpayment of tax shall be filed by 36 the taxpayer within one year from the time such report or amended return 37 was required to be filed with the commissioner of finance. This subdivi- 38 sion shall not affect the time within which or the amount for which a 39 claim for credit or refund may be filed apart from this subdivision. 40 d. A person shall not be entitled to a revision, refund or credit 41 under this section of a tax, interest or penalty which had been deter- 42 mined to be due pursuant to the provisions of section 11-1106 or 11-1107 43 of this chapter where he or she has had a hearing or an opportunity for 44 a hearing, as provided in such sections, or has failed to avail himself 45 or herself of the remedies therein provided. No refund or credit shall 46 be made of a tax, interest or penalty paid after a determination by the 47 commissioner of finance made pursuant to section 11-1106 or 11-1107 of 48 this chapter unless it be found that such determination was erroneous, 49 illegal or unconstitutional or otherwise improper, by the tax appeals 50 tribunal after a hearing or of the commissioner of finance's own motion 51 or, if such tax appeals tribunal affirms in whole or in part the deter- 52 mination of the commissioner of finance, in a proceeding under article 53 seventy-eight of the civil practice law and rules pursuant to the 54 provisions of said section, in which event refund or credit without 55 interest shall be made of the tax, interest or penalty found to have 56 been overpaid.S. 8474 797 1 § 11-1109 Reserves. In cases where the taxpayer has applied for a 2 refund and has instituted a proceeding under article seventy-eight of 3 the civil practice law and rules to review a determination adverse to 4 him or her on his or her application for refund, the comptroller shall 5 set up appropriate reserves to meet any decision adverse to the city. 6 § 11-1110 Remedies exclusive. The remedies provided by this chapter 7 shall be the exclusive remedies available to any person for the review 8 of tax liability imposed by this chapter; and no determination or 9 proposed determination of tax or determination on any application for 10 refund by the commissioner of finance, nor any decision by the tax 11 appeals tribunal or any of its administrative law judges, shall be 12 enjoined or reviewed by an action for declaratory judgment, an action 13 for money had and received or by any action or proceeding other than, in 14 the case of a decision by the tax appeals tribunal sitting en banc, a 15 proceeding under article seventy-eight of the civil practice law and 16 rules; provided, however, that a taxpayer may proceed by a declaratory 17 judgment if he or she institutes suit within thirty days after a defi- 18 ciency assessment is made and pays the amount of the deficiency assess- 19 ment to the commissioner of finance prior to the institution of such 20 suit and posts a bond for costs as provided in section 11-1106 of this 21 chapter. 22 § 11-1111 Proceedings to recover tax. a. Whenever any person shall 23 fail to pay any tax or penalty or interest imposed by this chapter as 24 provided in this section, the corporation counsel shall, upon the 25 request of the commissioner of finance, bring or cause to be brought an 26 action to enforce payment of the same against the person liable for the 27 same on behalf of the city of Staten Island in any court of the state of 28 New York or of any other state or of the United States. If, however, 29 such commissioner in his or her discretion believes that a taxpayer 30 subject to the provisions of this chapter is about to cease business, 31 leave the state or remove or dissipate the assets out of which tax or 32 penalties might be satisfied and that any such tax or penalty will not 33 be paid when due, he or she may declare such tax or penalty to be imme- 34 diately due and payable and may issue a warrant immediately. 35 b. As a further additional or alternate remedy, the commissioner of 36 finance may issue a warrant, directed to the city sheriff, commanding 37 him or her to levy upon and sell the real and personal property of such 38 person which may be found within the city, for the payment of the amount 39 thereof, with any penalties and the cost of executing the warrant and to 40 return such warrant to such commissioner and to pay to him or her the 41 money collected by virtue thereof within sixty days after the receipt of 42 such warrant. The city sheriff shall, within five days after the 43 receipt of the warrant, file with the county clerk a copy thereof and 44 thereupon such clerk shall enter in the judgment docket the name of the 45 person mentioned in the warrant and the amount of the tax and penalties 46 for which the warrant is issued and the date when such copy is filed. 47 Thereupon the amount of such warrant so docketed shall have the full 48 force and effect of a judgment and shall become a lien upon the title to 49 and interest in real and personal property of the person against whom 50 the warrant is issued. The city sheriff shall then proceed upon the 51 warrant in the same manner and with like effect as that provided by law 52 in respect to executions against property upon judgments of a court of 53 record, and for services in executing the warrant he or she shall be 54 entitled to the same fees which he or she may collect in the same 55 manner. In the discretion of the commissioner of finance a warrant of 56 like terms, force and effect may be issued and directed to any officerS. 8474 798 1 or employee of the department of finance and in the execution thereof 2 such officer or employee shall have all the power conferred by law upon 3 sheriffs, but he or she shall be entitled to no fee or compensation in 4 excess of the actual expenses paid in the performance of such duty. If 5 a warrant is returned not satisfied in full, the commissioner of finance 6 may from time to time issue new warrants and shall also have the same 7 remedies to enforce the amount due thereunder as if the city had recov- 8 ered judgment therefor and execution thereon had been returned unsatis- 9 fied. 10 c. Whenever there is made a sale, transfer or assignment in bulk of 11 any part or the whole of a stock of merchandising or of fixtures, or 12 merchandise and of fixtures pertaining to the conducting of the business 13 of the seller, transferor or assignor, otherwise than in the ordinary 14 course of trade and in the regular prosecution of said business, the 15 purchaser, transferee or assignee shall at least ten days before taking 16 possession of such merchandise, fixtures, or merchandise and fixtures, 17 or paying therefor, notify the commissioner of finance by registered 18 mail of the proposed sale and of the price, terms and conditions there- 19 of, whether or not the seller, transferor or assignor, has represented 20 to, or informed the purchaser, transferee or assignee that it owes any 21 tax pursuant to this chapter, whether or not the purchaser, transferee 22 or assignee has knowledge that such taxes are owing, and whether or not 23 any such taxes are in fact owing. 24 Whenever the purchaser, transferee or assignee shall fail to give the 25 notice to the commissioner of finance required by this subdivision, or 26 whenever such commissioner shall inform the purchaser, transferee or 27 assignee that a possible claim for such tax or taxes exists, any sums of 28 money, property or choses in action, or other consideration, which the 29 purchaser, transferee or assignee is required to transfer over to the 30 seller, transferor or assignor shall be subject to a first priority 31 right and lien for any such taxes theretofore or thereafter determined 32 to be due from the seller, transferor or assignor to the city, and the 33 purchaser, transferee or assignee is forbidden to transfer to the sell- 34 er, transferor or assignor any such sums of money, property or choses in 35 action to the extent of the amount of the city's claim. For failure to 36 comply with the provisions of this subdivision the purchaser, transferee 37 or assignee, in addition to being subject to the liabilities and reme- 38 dies imposed under the provisions of former article six of the uniform 39 commercial code shall be personally liable for the payment to the city 40 of any such taxes theretofore or thereafter determined to be due to the 41 city from the seller, transferor or assignor and such liability may be 42 assessed and enforced in the same manner as the liability for tax is 43 imposed under this chapter. 44 d. The commissioner of finance, if he or she finds that the interests 45 of the city will not thereby be jeopardized, and upon such conditions as 46 the commissioner of finance may require, may release any property from 47 the lien of any warrant or vacate such warrant for unpaid taxes, addi- 48 tions to tax, penalties and interest filed pursuant to subdivision b of 49 this section, and such release or vacating of the warrant may be 50 recorded in the office of any recording officer in which such warrant 51 has been filed. The clerk shall thereupon cancel and discharge as of the 52 original date of docketing the vacated warrant. 53 § 11-1112 General powers of the commissioner of finance. In addition 54 to the powers granted to the commissioner of finance in this chapter, he 55 or she is hereby authorized and empowered:S. 8474 799 1 1. To make, adopt and amend rules and regulations appropriate to the 2 carrying out of this chapter and the purposes thereof; and to prescribe 3 the form of blanks, reports and other records relating to the enforce- 4 ment and administration of this chapter; 5 2. To prescribe methods for determining the amount of "gross income" 6 and "gross operating income" received by a person subject to tax pursu- 7 ant to this chapter; 8 3. To request information from the tax commission of the state of New 9 York or treasury department of the United States relative to any person; 10 and to afford returns, reports and other information to such tax commis- 11 sion or such treasury department relative to any person, any other 12 provision in this chapter to the contrary notwithstanding; 13 4. To extend, for cause shown, the time for filing any return for a 14 period not exceeding thirty days; and to compromise disputed claims in 15 connection with the taxes imposed pursuant to this chapter; 16 5. To delegate his or her functions hereunder to a deputy commission- 17 er of finance or other employee or employees of the department of 18 finance of the city; 19 6. To assess, determine, revise and readjust the taxes imposed under 20 this chapter. 21 § 11-1113 Administration of oaths and compelling testimony. a. The 22 commissioner of finance, his or her employees duly designated and 23 authorized by him or her, the tax appeals tribunal and any of its duly 24 designated and authorized employees shall have power to administer oaths 25 and take affidavits in relation to any matter or proceedings in the 26 exercise of their powers and duties under this chapter. Such commis- 27 sioner and the tax appeals tribunal shall have power to subpoena and 28 require the attendance of witnesses and the production of books, papers 29 and documents to secure information pertinent to the performance of the 30 duties of such commissioner or of the tax appeals tribunal hereunder and 31 of the enforcement of this chapter, and to examine them in relation 32 thereto, and to issue commissions for the examination of witnesses who 33 are out of the state or unable to attend before the commissioner or the 34 tax appeals tribunal or excused from attendance. 35 b. A justice of the supreme court either in court or at chambers shall 36 have power summarily to enforce by proper proceedings the attendance and 37 testimony of witnesses and the production and examination of books, 38 papers and documents called for by the subpoena of the commissioner of 39 finance or the tax appeals tribunal under this chapter. 40 c. Cross-reference; criminal penalties. For failure to obey subpoenas 41 or for testifying falsely, see section 11-4007 of this title; for 42 supplying false or fraudulent information, see section 11-4002 of this 43 title. 44 d. The officers who serve the summons or subpoena of the commissioner 45 of finance or the tax appeals tribunal and witnesses attending in 46 response thereto shall be entitled to the same fees as are allowed to 47 officers and witnesses in civil cases in courts of record, except as 48 herein otherwise provided. Such officers shall be the city sheriff, and 49 his or her duly appointed deputies or any officers or employees of the 50 department of finance or the tax appeals tribunal, designated to serve 51 such process. 52 § 11-1114 Interest and penalties. (a) Interest on underpayments. If 53 any amount of tax is not paid on or before the last date prescribed for 54 payment, without regard to any extension of time granted for payment, 55 interest on such amount at the rate set by the commissioner of finance 56 pursuant to subdivision (g) of this section, or, if no rate is set, atS. 8474 800 1 the rate of seven and one-half percent per annum, shall be paid for the 2 period from such last date to the date of payment. In computing the 3 amount of interest to be paid, such interest shall be compounded daily. 4 Interest under this subdivision shall not be paid if the amount thereof 5 is less than one dollar. 6 (b) (1) Failure to file return. (A) In case of failure to file a 7 return under this chapter on or before the prescribed date, determined 8 with regard to any extension of time for filing, unless it is shown that 9 such failure is due to reasonable cause and not due to willful neglect, 10 there shall be added to the amount required to be shown as tax on such 11 return five percent of the amount of such tax if the failure is for not 12 more than one month, with an additional five percent for each additional 13 month or fraction thereof during which such failure continues, not 14 exceeding twenty-five percent in the aggregate. 15 (B) In the case of a failure to file a return of tax within sixty days 16 of the date prescribed for filing of such return, determined with regard 17 to any extension of time for filing, unless it is shown that such fail- 18 ure is due to reasonable cause and not due to willful neglect, the addi- 19 tion to tax under subparagraph (A) of this paragraph shall not be less 20 than the lesser of one hundred dollars or one hundred percent of the 21 amount required to be shown as tax on such return. 22 (C) For purposes of this paragraph, the amount of tax required to be 23 shown on the return shall be reduced by the amount of any part of the 24 tax which is paid on or before the date prescribed for payment of the 25 tax and by the amount of any credit against the tax which may be claimed 26 upon the return. 27 (2) Failure to pay tax shown on return. In case of failure to pay the 28 amount shown as tax on a return required to be filed under this chapter 29 on or before the prescribed date, determined with regard to any exten- 30 sion of time for payment, unless it is shown that such failure is due to 31 reasonable cause and not due to willful neglect, there shall be added 32 to the amount shown as tax on such return one-half of one percent of the 33 amount of such tax if the failure is not for more than one month, with 34 an additional one-half of one percent for each additional month or frac- 35 tion thereof during which such failure continues, not exceeding twenty- 36 five percent in the aggregate. For the purpose of computing the addition 37 for any month the amount of tax shown on the return shall be reduced by 38 the amount of any part of the tax which is paid on or before the begin- 39 ning of such month and by the amount of any credit against the tax which 40 may be claimed upon the return. If the amount of tax required to be 41 shown on a return is less than the amount shown as tax on such return, 42 this paragraph shall be applied by substituting such lower amount. 43 (3) Failure to pay tax required to be shown on return. In case of 44 failure to pay any amount in respect of any tax required to be shown on 45 a return required to be filed under this chapter which is not so shown, 46 including a determination made pursuant to section 11-1106 of this chap- 47 ter, within ten days of the date of a notice and demand therefor, unless 48 it is shown that such failure is due to reasonable cause and not due to 49 willful neglect, there shall be added to the amount of tax stated in 50 such notice and demand one-half of one percent of such tax if the fail- 51 ure is not for more than one month, with an additional one-half of one 52 percent for each additional month or fraction thereof during which such 53 failure continues, not exceeding twenty-five percent in the aggregate. 54 For the purpose of computing the addition for any month, the amount of 55 tax stated in the notice and demand shall be reduced by the amount of 56 any part of the tax which is paid before the beginning of such month.S. 8474 801 1 (4) Limitations on additions. 2 (A) With respect to any return, the amount of the addition under para- 3 graph one of this subdivision shall be reduced by the amount of the 4 addition under paragraph two of this subdivision for any month to which 5 an addition applies under both paragraphs one and two of this subdivi- 6 sion. In any case described in subparagraph (B) of paragraph one of 7 this subdivision, the amount of the addition under such paragraph one 8 shall not be reduced below the amount provided in such subparagraph. 9 (B) With respect to any return, the maximum amount of the addition 10 permitted under paragraph three of this subdivision shall be reduced by 11 the amount of the addition under paragraph one of this subdivision, 12 determined without regard to subparagraph (B) of such paragraph one 13 which is attributable to the tax for which the notice and demand is made 14 and which is not paid within ten days of such notice and demand. 15 (c) Underpayment due to negligence. (1) If any part of an underpayment 16 of tax is due to negligence or intentional disregard of this chapter or 17 any rules or regulations hereunder, but without intent to defraud, there 18 shall be added to the tax a penalty equal to five percent of the under- 19 payment. 20 (2) There shall be added to the tax, in addition to the amount deter- 21 mined under paragraph one of this subdivision, an amount equal to fifty 22 percent of the interest payable under subdivision (a) of this section 23 with respect to the portion of the underpayment described in such para- 24 graph one which is attributable to the negligence or intentional disre- 25 gard referred to in such paragraph one, for the period beginning on the 26 last date prescribed by law for payment of such underpayment, determined 27 without regard to any extension, and ending on the date of the assess- 28 ment of the tax, or, if earlier, the date of the payment of the tax. 29 (3) If any payment is shown on a return made by a payor with respect 30 to dividends, patronage dividends and interest under subsection (a) of 31 section six thousand forty-two, subsection (a) of section six thousand 32 forty-four or subsection (a) of section six thousand forty-nine of the 33 internal revenue code of nineteen hundred fifty-four, respectively, and 34 the payee fails to include any portion of such payment in gross income 35 or gross operating income, when required under this chapter to be so 36 included, any portion of an underpayment attributable to such failure 37 shall be treated, for purposes of this subdivision, as due to negligence 38 in the absence of clear and convincing evidence to the contrary. If any 39 penalty is imposed under this subdivision by reason of this paragraph, 40 the amount of the penalty imposed by paragraph one of this subdivision 41 shall be five percent of the portion of the underpayment which is 42 attributable to the failure described in this paragraph. 43 (d) Underpayment due to fraud. (1) If any part of an underpayment of 44 tax is due to fraud, there shall be added to the tax a penalty equal to 45 two times of the underpayment. 46 (2) The penalty under this subdivision shall be in lieu of any other 47 addition to tax imposed by subdivision (b) or (c) of this section. 48 (e) Additional penalty. Any person who, with fraudulent intent, shall 49 fail to pay any tax imposed by this chapter, or to make, render, sign or 50 certify any return, or to supply any information within the time 51 required by or under this chapter, shall be liable for a penalty of not 52 more than one thousand dollars, in addition to any other amounts 53 required under this chapter to be imposed, assessed and collected by the 54 commissioner of finance. The commissioner of finance shall have the 55 power, in his or her discretion, to waive, reduce or compromise any 56 penalty under this subdivision.S. 8474 802 1 (f) The interest and penalties imposed by this section shall be paid 2 and disposed of in the same manner as other revenues from this chapter. 3 Unpaid interest and penalties may be enforced in the same manner as the 4 tax imposed by this chapter. 5 (g) (1) Authority to set interest rates. The commissioner of finance 6 shall set the rate of interest to be paid pursuant to subdivision (a) of 7 this section, but if no such rate of interest is set, such rate shall be 8 deemed to be set at seven and one-half percent per annum. Such rate 9 shall be the rate prescribed in paragraph two of this subdivision but 10 shall not be less than seven and one-half percent per annum. Any such 11 rate set by the commissioner of finance shall apply to taxes, or any 12 portion thereof, which remain or become due on or after the date on 13 which such rate becomes effective and shall apply only with respect to 14 interest computed or computable for periods or portions of periods 15 occurring in the period in which such rate is in effect. 16 (2) General rule. The rate of interest set under this subdivision 17 shall be the sum of (i) the federal short-term rate as provided under 18 paragraph three of this subdivision, plus (ii) seven percentage points. 19 (3) Federal short-term rate. For purposes of this subdivision: 20 (A) The federal short-term rate for any month shall be the federal 21 short-term rate determined by the United States secretary of the treas- 22 ury during such month in accordance with subsection (d) of section 23 twelve hundred seventy-four of the internal revenue code for use in 24 connection with section six thousand six hundred twenty-one of the 25 internal revenue code. Any such rate shall be rounded to the nearest 26 full percent, or, if a multiple of one-half of one percent, such rate 27 shall be increased to the next highest full percent. 28 (B) Period during which rate applies. 29 (i) In general. Except as provided in clause (ii) of this subpara- 30 graph, the federal short-term rate for the first month in each calendar 31 quarter shall apply during the first calendar quarter beginning after 32 such month. 33 (ii) Special rule for the month of September, nineteen hundred eight- 34 y-nine. The federal short-term rate for the month of April, nineteen 35 hundred eighty-nine shall apply with respect to setting the rate of 36 interest for the month of September, nineteen hundred eighty-nine. 37 (4) Publication of interest rate. The commissioner of finance shall 38 cause to be published in the City Record, and give other appropriate 39 general notice of, the interest rate to be set under this subdivision no 40 later than twenty days preceding the first day of the calendar quarter 41 during which such interest rate applies. The setting and publication of 42 such interest rate shall not be included within paragraph (a) of subdi- 43 vision five of section one thousand forty-one of the city charter of the 44 preceding municipality as it existed January first, nineteen hundred 45 ninety-four relating to the definition of a rule. 46 (h) Miscellaneous. (1) The certificate of the commissioner of finance 47 to the effect that a tax has not been paid, that a return has not been 48 filed, or that information has not been supplied pursuant to the 49 provisions of this chapter shall be prima facie evidence thereof. 50 (2) Cross-reference: For criminal penalties, see chapter forty of this 51 title. 52 (i) Substantial understatement of liability. If there is a substantial 53 understatement of tax for any taxable period, there shall be added to 54 the tax an amount equal to ten percent of the amount of any underpayment 55 attributable to such understatement. For purposes of this subdivision, 56 there is a substantial understatement of tax for any taxable period ifS. 8474 803 1 the amount of the understatement for the taxable period exceeds the 2 greater of ten percent of the tax required to be shown on the return for 3 the taxable period or five thousand dollars. For purposes of this subdi- 4 vision, the term "understatement" means the excess of the amount of the 5 tax required to be shown on the return for the taxable period, over the 6 amount of the tax imposed which is shown on the return, reduced by any 7 rebate. The amount of such understatement shall be reduced by that 8 portion of the understatement which is attributable to the tax treatment 9 of any item by the taxpayer if there is or was substantial authority for 10 such treatment, or any item with respect to which the relevant facts 11 affecting the item's tax treatment are adequately disclosed in the 12 return or in a statement attached to the return. The commissioner of 13 finance may waive all or any part of the addition to tax provided by 14 this subdivision on a showing by the taxpayer that there was reasonable 15 cause for the understatement, or part thereof, and that the taxpayer 16 acted in good faith. 17 (j) Aiding or assisting in the giving of fraudulent returns, reports, 18 statements or other documents. (1) Any person who, with the intent that 19 tax be evaded, shall, for a fee or other compensation or as an incident 20 to the performance of other services for which such person receives 21 compensation, aid or assist in, or procure, counsel, or advise the prep- 22 aration or presentation under, or in connection with any matter arising 23 under this title of any return, report, statement or other document 24 which is fraudulent or false as to any material matter, or supply any 25 false or fraudulent information, whether or not such falsity or fraud is 26 with the knowledge or consent of the person authorized or required to 27 present such return, report, statement or other document shall pay a 28 penalty not exceeding ten thousand dollars. 29 (2) For purposes of paragraph one of this subdivision, the term 30 "procures" includes ordering, or otherwise causing, a subordinate to do 31 an act, and knowing of, and not attempting to prevent, participation by 32 a subordinate in an act. The term "subordinate" means any other person, 33 whether or not a director, officer, employee, or agent of the taxpayer 34 involved, over whose activities the person has direction, supervision, 35 or control. 36 (3) For purposes of paragraph one of this subdivision, a person 37 furnishing typing, reproducing, or other mechanical assistance with 38 respect to a document shall not be treated as having aided or assisted 39 in the preparation of such document by reason of such assistance. 40 (4) The penalty imposed by this subdivision shall be in addition to 41 any other penalty provided by law. 42 (k) Failure to include on return information relating to issuer's 43 allocation percentage. Where a return is filed but does not contain (1) 44 the information necessary to compute the taxpayer's issuer's allocation 45 percentage, as defined in subparagraph one of paragraph (b) of subdivi- 46 sion three of section 11-604 of this title, where the same is called for 47 on the return, or, (2) the taxpayer's issuer's allocation percentage, 48 where the same is called for on the return but where all of the informa- 49 tion necessary for the computation of such percentage is not called for 50 on the return, then unless it is shown that such failure is due to 51 reasonable cause and not due to willful neglect there shall be added to 52 the tax a penalty of five hundred dollars. 53 (l) False or fraudulent document penalty. Any taxpayer that submits a 54 false or fraudulent document to the department shall be subject to a 55 penalty of one hundred dollars per document submitted, or five hundredS. 8474 804 1 dollars per tax return submitted. Such penalty shall be in addition to 2 any other penalty or addition provided by law. 3 § 11-1115 Notices and limitations of time. a. Any notice authorized 4 or required under the provisions of this chapter may be given by mailing 5 the same to the person for whom it is intended in a postpaid envelope 6 addressed to such person at the address given in the last return filed 7 by such person pursuant to the provisions of this chapter or in any 8 application made by him or her, or, if no return has been filed or 9 application made, then to such address as may be obtainable. The mail- 10 ing of such notice shall be presumptive evidence of the receipt of the 11 same by the person to whom addressed. Any period of time which is 12 determined according to the provisions of this chapter by the giving of 13 notice shall commence to run from the date of mailing of such notice. 14 b. The provisions of the civil practice law and rules or any other law 15 relative to limitations of time for the enforcement of a civil remedy 16 shall not apply to any proceeding or action by the city taken to levy, 17 appraise, assess, determine or enforce the collection of any tax or 18 penalty provided by this chapter. However, except in the case of a 19 wilfully false or fraudulent return with intent to evade the tax, no 20 assessment of additional tax imposed under a local law for the preceding 21 municipality enacted subsequent to July first, nineteen hundred thirty- 22 eight, shall be made after the expiration of more than three years from 23 the date of the filing of a return, provided, however, that where no 24 return has been filed, or where the taxpayer fails to file a report or 25 return in respect of a change or correction in the amount of sales and 26 compensating use tax liability as provided by law, the tax may be 27 assessed at any time. Where the taxpayer files a report or return in 28 respect of a change or correction in sales and compensating use tax 29 liability, as required by subdivision d of section 11-1104 of this chap- 30 ter, an assessment may be made at any time within two years after such 31 report or return was filed, provided, however, that this sentence shall 32 not affect the time within which an assessment may otherwise be made. 33 c. Where, before the expiration of the period prescribed herein for 34 the assessment of an additional tax, a taxpayer has consented in writing 35 that such period be extended, the amount of such additional tax due may 36 be determined at any time within such extended period. The period so 37 extended may be further extended by subsequent consents in writing made 38 before the expiration of the extended period. 39 d. If any return, claim, statement, notice, application, or other 40 document required to be filed, or any payment required to be made, with- 41 in a prescribed period or on or before a prescribed date under authority 42 of any provision of this chapter is, after such period or such date, 43 delivered by United States mail to the commissioner of finance, the tax 44 appeals tribunal, bureau, office, officer or person with which or with 45 whom such document is required to be filed, or to which or to whom such 46 payment is required to be made, the date of the United States postmark 47 stamped on the envelope shall be deemed to be the date of delivery. This 48 subdivision shall apply only if the postmark date falls within the 49 prescribed period or on or before the prescribed date for the filing of 50 such document, or for making the payment, including any extension grant- 51 ed for such filing or payment, and only if such document or payment was 52 deposited in the mail, postage prepaid, properly addressed to the 53 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 54 cer or person with which or with whom the document is required to be 55 filed or to which or to whom such payment is required to be made. If any 56 document is sent by United States registered mail, such registrationS. 8474 805 1 shall be prima facie evidence that such document was delivered to the 2 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 3 cer or person to which or to whom addressed, and the date of registra- 4 tion shall be deemed the postmark date. The commissioner of finance or, 5 where relevant, the tax appeals tribunal is authorized to provide by 6 regulation the extent to which the provisions such with respect to prima 7 facie evidence of delivery and the postmark date shall apply to certi- 8 fied mail. Except as provided in subdivision f of this section, this 9 subdivision shall apply in the case of postmarks not made by the United 10 States postal service only if and to the extent provided by regulation 11 of the commissioner of finance or where relevant, the tax appeals tribu- 12 nal. 13 e. When the last day prescribed under authority of this chapter, 14 including any extension of time, for performing any act falls on a 15 Saturday, Sunday or legal holiday in the state, the performance of such 16 act shall be considered timely if it is performed on the next succeeding 17 day which is not a Saturday, Sunday or legal holiday. 18 f. (1) Any reference in subdivision d of this section to the United 19 States mail shall be treated as including a reference to any delivery 20 service designated by the secretary of the treasury of the United States 21 pursuant to section seventy-five hundred two of the internal revenue 22 code and any reference in subdivision d of this section to a United 23 States postmark shall be treated as including a reference to any date 24 recorded or marked in the manner described in section seventy-five 25 hundred two of the internal revenue code by a designated delivery 26 service. If the commissioner of finance finds that any delivery service 27 designated by such secretary is inadequate for the needs of the city, 28 the commissioner of finance may withdraw such designation for purposes 29 of this title. The commissioner of finance may also designate additional 30 delivery services meeting the criteria of section seventy-five hundred 31 two of the internal revenue code for purposes of this title, or may 32 withdraw any such designation if the commissioner of finance finds that 33 a delivery service so designated is inadequate for the needs of the 34 city. Any reference in subdivision d of this section to the United 35 States mail shall be treated as including a reference to any delivery 36 service designated by the commissioner of finance and any reference in 37 subdivision d of this section to a United States postmark shall be 38 treated as including a reference to any date recorded or marked in the 39 manner described in section seventy-five hundred two of the internal 40 revenue code by a delivery service designated by the commissioner of 41 finance; provided, however, any withdrawal of designation or additional 42 designation by the commissioner of finance shall not be effective for 43 purposes of service upon the tax appeals tribunal, unless and until such 44 withdrawal of designation or additional designation is ratified by the 45 president of the tax appeals tribunal. 46 (2) Any equivalent of registered or certified mail designated by the 47 United States secretary of the treasury, or as may be designated by the 48 commissioner of finance pursuant to the same criteria used by such 49 secretary for such designations pursuant to section seventy-five hundred 50 two of the internal revenue code, shall be included within the meaning 51 of registered or certified mail as used in subdivision d of this 52 section. If the commissioner of finance finds that any equivalent of 53 registered or certified mail designated by such secretary or the commis- 54 sioner of finance is inadequate for the needs of the city, the commis- 55 sioner of finance may withdraw such designation for purposes of this 56 title. Notwithstanding the foregoing, any withdrawal of designation orS. 8474 806 1 additional designation by the commissioner of finance shall not be 2 effective for purposes of service upon the tax appeals tribunal, unless 3 and until such withdrawal of designation or additional designation is 4 ratified by the president of the tax appeals tribunal. 5 § 11-1116 Returns to be secret. a. Except in accordance with proper 6 judicial order or as otherwise provided by law, it shall be unlawful for 7 the commissioner of finance, the tax appeals tribunal, or any officer or 8 employee of the department of finance or the tax appeals tribunal to 9 divulge or make known in any manner, the receipts or any other informa- 10 tion relating to the business of a taxpayer contained in any return 11 required under this chapter. The officers charged with the custody of 12 such returns shall not be required to produce any of them or evidence of 13 anything contained in them in any action or proceeding in any court, 14 except on behalf of the city or the commissioner of finance, or on 15 behalf of any party to any action or proceeding under the provisions of 16 this chapter when the returns or facts shown thereby are directly 17 involved in such action or proceeding, in either of which events, the 18 court may require the production of, and may admit in evidence, so much 19 of said returns or of the facts shown thereby, as are pertinent to the 20 action or proceeding and no more. Nothing in this subdivision shall be 21 construed to prohibit the delivery to a taxpayer or his or her duly 22 authorized representative of a certified copy of any return filed in 23 connection with his or her tax, nor to prohibit the publication of 24 statistics so classified as to prevent the identification of particular 25 returns and the items thereof, or the inspection by the corporation 26 counsel of the city or other legal representatives of such city of the 27 return of any taxpayer who shall bring action or proceeding to set aside 28 or review the tax based thereon, or against whom an action or proceeding 29 has been instituted or is contemplated for the collection of a tax, 30 penalty or interest. Returns shall be preserved for three years and 31 thereafter until the commissioner of finance permits them to be 32 destroyed. 33 b. (1) Any officer or employee of the city who willfully violates the 34 provisions of subdivision a of this section shall be dismissed from 35 office and be incapable of holding any public office in this city for a 36 period of five years thereafter. 37 (2) Cross-reference: For criminal penalties, see chapter forty of this 38 title. 39 c. This section shall be deemed a state statute for purposes of para- 40 graph (a) of subdivision two of section eighty-seven of the public offi- 41 cers law. 42 d. Notwithstanding anything in subdivision a of this section to the 43 contrary, if a taxpayer has petitioned the tax appeals tribunal for 44 administrative review as provided in section one hundred seventy of the 45 charter of the preceding municipality as it existed January first, nine- 46 teen hundred ninety-four, the commissioner of finance shall be author- 47 ized to present to the tribunal any report or return of such taxpayer, 48 or any information contained therein or relating thereto, which may be 49 material or relevant to the proceeding before the tribunal. The tax 50 appeals tribunal shall be authorized to publish a copy or a summary of 51 any decision rendered pursuant to section one hundred seventy-one of the 52 charter of the preceding municipality as it existed January first, nine- 53 teen hundred ninety-four. 54 § 11-1117 Construction and enforcement. This chapter shall be 55 construed and enforced in conformity with chapter ninety-three of theS. 8474 807 1 laws of nineteen hundred sixty-five, as amended, pursuant to which it is 2 enacted. 3 § 11-1118 Disposition of revenues. All revenues resulting from the 4 imposition of the tax under this chapter shall be paid into the treasury 5 of the city and shall be credited to and deposited in the general fund 6 of the city, but no part of such revenues may be expended unless appro- 7 priated in the annual budget of the city. 8 § 11-1119 Determinations of place of primary use of wireless telecom- 9 munications services. a. A home service provider shall be responsible 10 for obtaining and maintaining the customer's place of primary use as 11 defined in subdivision twenty of section 11-1101 of this chapter. Except 12 as provided in subdivision b of this section, if the home service 13 provider's reliance on the information provided by its customer is in 14 good faith: (1) the home service provider can rely on the applicable 15 residential or business street address supplied by the home service 16 provider's customer; and (2) the home service provider shall not be held 17 liable for any additional taxes under this chapter based on a different 18 determination of the place of primary use. 19 b. The commissioner of finance, or the commissioner of taxation and 20 finance of the state of New York on behalf of the commissioner of 21 finance, may determine that the address used by a home service provider 22 for purposes of this chapter does not meet the definition of place of 23 primary use as defined in subdivision twenty of section 11-1101 of this 24 chapter and may give binding notice to the home service provider to 25 change the place of primary use on a prospective basis from the date of 26 notice of determination if: 27 (1) where the determination is made by the commissioner of finance, 28 such commissioner obtains the consent of all affected taxing jurisdic- 29 tions within this state before giving such notice of determination; and 30 (2) before the commissioner of finance or the commissioner of taxation 31 and finance of the state of New York gives such notice of determination, 32 the customer is given an opportunity to demonstrate, in accordance with 33 applicable procedures established by the commissioner of finance making 34 the determination, that that address is the customer's place of primary 35 use. 36 c. Except as provided in subdivision b of this section, a home service 37 provider may treat the address used by the home service provider for 38 purposes of this chapter for the last taxable period beginning before 39 August first, two thousand two, for any customer under a service 40 contract or agreement in effect on July twenty-eighth, two thousand two 41 as that customer's place of primary use for the remaining term of such 42 service contract or agreement, excluding any extension or renewal of 43 such service contract or agreement. 44 § 11-1120 Assignment of place of primary use of telecommunications 45 services to the city. a. If an electronic database meeting the require- 46 ments of subsection a of section one hundred nineteen of title four of 47 the United States Code is provided by the state of New York, or by a 48 designated database provider as defined in subsection three of section 49 one hundred twenty-four of such title, and the requirements of 50 subsection b of such section one hundred nineteen are met, a home 51 service provider shall use that database to determine whether the 52 customer's place of primary use is within the territorial limits of the 53 city and shall reflect changes to such database in accordance with 54 subsection c of such section one hundred nineteen. 55 b. A home service provider using the data contained in an electronic 56 database described in subdivision a of this section shall be held harm-S. 8474 808 1 less from any tax liability that otherwise would be due under this chap- 2 ter solely as a result of any error or omission in such database 3 provided the home service provider has properly reflected changes to 4 such database in accordance with subsection c of section one hundred 5 nineteen of title four of the United States Code. 6 c. (1) If no electronic database is provided as described in subdivi- 7 sion a of this section, a home service provider shall be held harmless 8 from any tax liability under this chapter that otherwise would be due 9 solely as a result of an assignment of a street address to an incorrect 10 taxing jurisdiction if, subject to subdivision d of this section, the 11 home service provider employs an enhanced zip code to assign each street 12 address to a specific taxing jurisdiction for each level of taxing 13 jurisdiction and exercises due diligence at each level of taxing juris- 14 diction to ensure that each such street address is assigned to the 15 correct taxing jurisdiction. If an enhanced zip code overlaps boundaries 16 of taxing jurisdictions of the same level, the home service provider 17 must designate one specific jurisdiction within such enhanced zip code 18 for use in taxing the activity for such enhanced zip code for each level 19 of taxing jurisdiction. Any enhanced zip code assignment changed in 20 accordance with subdivision d of this section is deemed to be in compli- 21 ance with this subdivision. For purposes of this subdivision, there is a 22 rebuttable presumption that a home service provider has exercised due 23 diligence if such home service provider demonstrates that it has: (i) 24 expended reasonable resources to implement and maintain an appropriately 25 detailed electronic database of street address assignments to taxing 26 jurisdictions; (ii) implemented and maintained reasonable internal 27 controls to promptly correct misassignments of street addresses to 28 taxing jurisdictions; and (iii) used all reasonably obtainable and 29 usable data pertaining to municipal annexations, incorporations, reor- 30 ganizations and any other changes in jurisdictional boundaries that 31 materially affect the accuracy of such database. 32 (2) Paragraph one of this subdivision applies to a home service 33 provider that is in compliance with the requirements of such paragraph 34 until the later of: (i) eighteen months after the nationwide standard 35 numeric code described in subsection (a) of section one hundred nineteen 36 of title four of the United States Code has been approved by the feder- 37 ation of tax administrators and the multistate tax commission; or (ii) 38 six months after the state of New York or a designated database provider 39 provides a database as prescribed in subdivision a of this section. 40 d. The commissioner of finance, or the commissioner of taxation and 41 finance of the state of New York on behalf of the commissioner of 42 finance, may determine that the assignment of a street address to a 43 taxing jurisdiction by a home service provider under subdivision c of 44 this section does not reflect the correct taxing jurisdiction and give 45 binding notice to the home service provider to change the assignment on 46 a prospective basis from the date of notice of determination if: (1) 47 where the determination is made by the commissioner of finance, such 48 commissioner obtains the consent of all affected taxing jurisdictions 49 within this state before giving such notice of determination; and (2) 50 the home service provider is given an opportunity to demonstrate in 51 accordance with applicable procedures established by the commissioner of 52 finance making the determination that the assignment reflects the 53 correct taxing jurisdiction.S. 8474 809 1 CHAPTER 12 2 HORSE RACE ADMISSIONS TAX 3 § 11-1201 Definitions. When used in this chapter the following terms 4 shall mean or include: 5 1. "Racing corporation or association." A racing corporation or 6 association or other person owning or operating race meeting grounds or 7 enclosures located wholly or partly within the city of Staten Island, 8 and/or a racing corporation or association or other person conducting 9 race meetings at such grounds or enclosures. 10 2. "Person." Includes an individual, partnership, society, associ- 11 ation, joint-stock company, corporation, estate, receiver, trustee, 12 assignee, referee, or any other person acting in a fiduciary or repre- 13 sentative capacity, whether appointed by a court or otherwise, and any 14 combination of individuals. 15 3. "Return." Includes any return filed or required to be filed as 16 herein provided. 17 4. "Comptroller." The comptroller of the city. 18 5. "Commissioner of finance." The commissioner of finance of the 19 city. 20 6. "Admissions." The charge required to be paid by patrons for 21 admission to a running horse race meeting, including any charge required 22 to be paid by such patrons for admission to the clubhouse or other 23 special facilities within the race meeting grounds or enclosure at which 24 the running race meeting is conducted. 25 7. "Tax appeals tribunal." The tax appeals tribunal established by 26 section one hundred sixty-eight of the charter of the preceding munici- 27 pality as it existed January first, nineteen hundred ninety-four. 28 § 11-1202 Imposition of tax. A tax is hereby imposed on all admis- 29 sions to running horse race meetings conducted at race meeting grounds 30 or enclosures located wholly or partly within the city of Staten Island 31 at the rate of three percent of the admission price. The racing associ- 32 ation or corporation conducting a running horse race meeting shall, in 33 addition to the admission price, collect such tax on all tickets sold or 34 otherwise disposed of to patrons for admission with the sole exception 35 of those issued free passes, cards or badges in accordance with the 36 specific authority of the laws of the state of New York. In case of 37 failure to collect such tax the tax shall be imposed on the racing 38 corporation or association conducting such meeting. 39 § 11-1203 Payment of the tax. a. The tax imposed by this chapter 40 shall be paid by the racing corporation or association to the commis- 41 sioner of finance daily after each day of each race meeting, by deposit- 42 ing it to the account of the city in such bank or banks as may be desig- 43 nated by the city in accordance with the provisions of section four 44 hundred twenty-one of the charter of the preceding municipality as it 45 existed January first, nineteen hundred ninety-four or at such regular 46 intervals as the commissioner of finance may require. 47 b. The amount of the tax paid on admissions pursuant to this chapter 48 shall be the property of the city of Staten Island and shall be held by 49 the racing corporation or association as trustee for and on account of 50 the city of Staten Island and the racing corporation or association 51 shall be liable for the tax. Officers of the racing corporation or 52 association shall be personally liable for the tax collected or required 53 to be collected hereunder. 54 c. Every racing corporation or association conducting running horse 55 race meetings at race meeting grounds or enclosures located wholly or 56 partly within the city of Staten Island shall, on or before April first,S. 8474 810 1 nineteen hundred fifty-two and annually thereafter, before the opening 2 of any race meeting in each year, execute and file with the commissioner 3 of finance a bond issued by a surety company authorized to transact 4 business in this state and approved by the superintendent of insurance 5 of this state as to solvency and responsibility in an amount sufficient 6 to secure the payment of the taxes and/or penalties and interest due or 7 which may become due pursuant to this section, to be fixed by the 8 commissioner of finance. 9 § 11-1204 Returns. a. Every racing corporation or association 10 shall file with the commissioner of finance daily after each day of each 11 race meeting or at such regular intervals as the commissioner of finance 12 may require and upon such forms as shall be prescribed by the commis- 13 sioner of finance a return showing the taxes collected pursuant to this 14 chapter and the number of persons admitted to meetings conducted by the 15 racing corporation or association during the periods covered by the 16 return, together with any and all other information which the commis- 17 sioner of finance shall require to be included and reported in such 18 return. The commissioner of finance may require at any time supple- 19 mental or amended returns of such additional information or data as he 20 or she may specify. 21 b. Every return required pursuant to this section shall have annexed 22 thereto an affidavit of an officer of the racing corporation or associ- 23 ation to the effect that the statements contained therein are true. 24 § 11-1205 Records to be kept and audits by commissioner of finance. 25 Every racing corporation or association shall keep such records as may 26 be prescribed by the commissioner of finance, of all admissions and 27 taxes collected pursuant to this chapter. Such records shall be avail- 28 able for inspection and examination at any time upon demand by the 29 commissioner of finance or the commissioner's duly authorized agents or 30 employees, and such records shall be preserved for a period of three 31 years, except that the commissioner of finance may consent to their 32 destruction within that period, and may require that they be kept longer 33 than three years. 34 § 11-1206 Determination of tax. If a return required by this chapter 35 is not filed, or if a return when filed is incorrect or insufficient the 36 amount of tax due shall be determined by the commissioner of finance 37 from such information as may be obtainable and, if necessary, the tax 38 may be estimated on the basis of external indices, such as number of 39 race meetings held, admissions, paid attendance, and/or other factors. 40 Notice of such determination shall be given to the person liable for the 41 collection and/or payment of the tax. Such determination shall finally 42 and irrevocably fix the tax unless the person against whom it is 43 assessed, within ninety days after giving the notice of such determi- 44 nation, or, if the commissioner of finance has established a concil- 45 iation procedure pursuant to section 11-124 of this title and the 46 taxpayer has requested a conciliation conference in accordance there- 47 with, within ninety days from the mailing of a conciliation decision or 48 the date of the commissioner's confirmation of the discontinuance of the 49 conciliation proceeding, both (1) serves a petition upon the commission- 50 er of finance and (2) files a petition with the tax appeals tribunal for 51 a hearing, or unless the commissioner of finance of his or her own 52 motion shall redetermine the same. Such hearing and any appeal to the 53 tax appeals tribunal sitting en banc from the decision rendered in such 54 hearing shall be conducted in the manner and subject to the requirements 55 prescribed by the tax appeals tribunal pursuant to sections one hundred 56 sixty-eight through one hundred seventy-two of the charter of theS. 8474 811 1 preceding municipality as it existed January first, nineteen hundred 2 ninety-four. After such hearing the tax appeals tribunal shall give 3 notice of its decision to the person liable for the tax and to the 4 commissioner of finance. A decision of the tax appeals tribunal sitting 5 en banc shall be reviewable for error, illegality or unconstitutionality 6 or any other reason whatsoever by a proceeding under article seventy- 7 eight of the civil practice law and rules if application therefor is 8 made to the supreme court by the person against whom the tax was 9 assessed within four months after the giving of the notice of such tax 10 appeals tribunal decision. A proceeding under article seventy-eight of 11 the civil practice law and rules shall not be instituted by a person 12 liable for the tax unless the amount of any tax sought to be reviewed 13 with interest and penalties thereon, if any, shall be first deposited 14 with the commissioner of finance and there shall be filed with the 15 commissioner of finance an undertaking, issued by a surety company 16 authorized to transact business in this state and approved by the super- 17 intendent of insurance of this state as to solvency and responsibility, 18 in such amount as a justice of the supreme court shall approve to the 19 effect that if such proceeding be dismissed or the tax confirmed, such 20 person will pay all costs and charges which may accrue in the prose- 21 cution of the proceeding, or at the option of such person such undertak- 22 ing filed with the commissioner of finance may be in a sum sufficient to 23 cover the taxes, penalties and interest thereon stated in such decision 24 plus the costs and charges which may accrue against it in the prose- 25 cution of the proceeding, in which event such person shall not be 26 required to deposit such taxes, penalties and interest as a condition 27 precedent to the application. 28 § 11-1207 Refunds. a. In the manner provided in this section the 29 commissioner of finance shall refund or credit, without interest, any 30 tax, penalty or interest erroneously, illegally, or unconstitutionally 31 collected or paid if application to the commissioner of finance for such 32 refund shall be made within one year from the payment thereof. Whenever 33 a refund or credit is made or denied by the commissioner of finance, he 34 or she shall state his or her reason therefor and give notice thereof to 35 the applicant in writing. The commissioner of finance may, in lieu of 36 any refund required to be made, allow credit therefor on payments due 37 from the applicant. 38 b. Any determination of the commissioner of finance denying a refund 39 or credit pursuant to subdivision a of this section shall be final and 40 irrevocable unless the applicant for such refund or credit, within nine- 41 ty days from the mailing of notice of such determination, or, if the 42 commissioner of finance has established a conciliation procedure, pursu- 43 ant to section 11-124 of this title and the applicant has requested a 44 conciliation conference in accordance therewith, within ninety days of 45 the mailing of a conciliation decision or the date of the commissioner's 46 confirmation of the discontinuance of the conciliation proceeding, both 47 (1) serves a petition upon the commissioner of finance and (2) files a 48 petition with the tax appeals tribunal for a hearing. Such petition for 49 a refund or credit, made as provided under this section, shall be deemed 50 an application for a revision of any tax, penalty or interest complained 51 of. Such hearing and any appeal to the tax appeals tribunal sitting en 52 banc from the decision rendered in such hearing shall be conducted in 53 the manner and subject to the requirements prescribed by the tax appeals 54 tribunal pursuant to section one hundred sixty-eight through one hundred 55 seventy-two of the charter of the preceding municipality as it existed 56 January first, nineteen hundred ninety-four. After such hearing, the taxS. 8474 812 1 appeals tribunal shall give notice of its decision to the applicant and 2 to the commissioner of finance. The applicant shall be entitled to 3 institute a proceeding pursuant to article seventy-eight of the civil 4 practice law and rules to review a decision of the tax appeals tribunal 5 sitting en banc, provided such proceeding is instituted within four 6 months after the giving of the notice of such decision, and provided, in 7 the case of an application by a person liable for the tax, that a final 8 determination of tax due was not previously made. Such a proceeding 9 shall not be instituted by a person liable for the tax unless an under- 10 taking is filed with the commissioner of finance in such amount and with 11 such sureties as a justice of the supreme court shall approve to the 12 effect that if such proceeding be dismissed or the tax confirmed, such 13 person will pay all costs and charges which may accrue in the prose- 14 cution of such proceeding. 15 c. A person shall not be entitled to a revision, refund or credit 16 under this section of a tax, interest or penalty which has been deter- 17 mined to be due pursuant to the provisions of section 11-1206 of this 18 chapter where such person has had a hearing or an opportunity for a 19 hearing, as provided in said section, or has failed to avail himself or 20 herself of the remedies therein provided. No refund or credit shall be 21 made of a tax, interest or penalty paid after a determination by the 22 commissioner of finance made pursuant to section 11-1206 of this chapter 23 unless it be found that such determination was erroneous, illegal or 24 unconstitutional or otherwise improper, by the tax appeals tribunal 25 after a hearing or of the commissioner's own motion, or, if such tax 26 appeals tribunal affirms in whole or in part the determination of the 27 commissioner of finance, in a proceeding under article seventy-eight of 28 the civil practice law and rules, pursuant to the provisions of said 29 section, in which event refund or credit without interest shall be made 30 of the tax, interest or penalty found to have been overpaid. 31 § 11-1208 Reserves. In cases where a person has applied for a 32 refund and has instituted a proceeding under article seventy-eight of 33 the civil practice law and rules to review a determination adverse to 34 such person on his or her application for refund, the comptroller shall 35 set up appropriate reserves to meet any decision adverse to the city. 36 § 11-1209 Remedies exclusive. The remedies provided by sections 37 11-1206 and 11-1207 of this chapter shall be exclusive remedies avail- 38 able to any person for the review of tax liability imposed by this chap- 39 ter, and no determination or proposed determination of tax or determi- 40 nation on any application for refund by the commissioner of finance, nor 41 any decision by the tax appeals tribunal or any of its administrative 42 law judges, shall be enjoined or reviewed by an action for declaratory 43 judgment, an action for money had and received or by any action or 44 proceeding other than, in the case of a decision by the tax appeals 45 tribunal sitting en banc, a proceeding in the nature of a certiorari 46 proceeding under article seventy-eight of the civil practice law and 47 rules; provided, however, that such person may proceed by declaratory 48 judgment if such person institutes suit within ninety days after a defi- 49 ciency assessment is made and pays the amount of the deficiency assess- 50 ment to the commissioner of finance prior to the institution of such 51 suit and posts a bond for costs as provided in section 11-1206 of this 52 chapter. 53 § 11-1210 Proceedings to recover tax. a. Whenever any racing 54 corporation or association or any of its officers or any other person 55 shall fail to collect and pay over any tax or to pay any tax, penalty or 56 interest imposed by this chapter as therein provided, the corporationS. 8474 813 1 counsel shall, upon the request of the commissioner of finance bring or 2 cause to be brought an action to enforce the payment of the same on 3 behalf of the city of Staten Island in any court of the state of New 4 York or of any other state or of the United States. If, however, the 5 commissioner of finance in his or her discretion believes that a person 6 subject to the provisions of this chapter is about to cease business, 7 leave the state or remove or dissipate the assets out of which the tax 8 or penalties might be satisfied, and that any such tax or penalty will 9 not be paid when due, the commissioner of finance may declare such tax 10 or penalty to be immediately due and payable and may issue a warrant 11 immediately. 12 b. As an additional or alternate remedy, the commissioner of finance 13 may issue a warrant, directed to the city sheriff commanding the sheriff 14 to levy upon and sell the real and personal property of the racing 15 corporation or association or its officers or any other person which may 16 be found within the city, for the payment of the amount thereof, with 17 any penalties and interest, and the cost of executing the warrant, and 18 to return such warrant to the commissioner of finance and to pay to the 19 commissioner of finance the money collected by virtue thereof within 20 sixty days after the receipt of such warrant. The city sheriff shall 21 within five days after the receipt of the warrant file with the county 22 clerk a copy thereof, and thereupon such clerk shall enter in the judg- 23 ment docket the name of the person mentioned in the warrant and the 24 amount of the tax, penalties and interest for which the warrant is 25 issued and the date when such copy is filed. Thereupon the amount of 26 such warrant so docketed shall become a lien upon the title to and 27 interest in real and personal property of the person against whom the 28 warrant is issued. The city sheriff shall then proceed upon the warrant 29 in the same manner, and with like effect, as that provided by law in 30 respect to executions issued against property upon judgments of a court 31 of record and for services in executing the warrants the city sheriff 32 shall be entitled to the same fees, which the city sheriff may collect 33 in the same manner. In the discretion of the commissioner of finance a 34 warrant of like terms, force and effect may be issued and directed to 35 any officer or employee of the department of finance, and in the 36 execution thereof such officer or employee shall have all the powers 37 conferred by law upon sheriffs, but shall be entitled to no fee or 38 compensation in excess of the actual expenses paid in the performance of 39 such duty. If a warrant is returned not satisfied in full, the commis- 40 sioner of finance may from time to time issue new warrants and shall 41 also have the same remedies to enforce the amount due thereunder as if 42 the city had recovered judgment therefor and execution thereon had been 43 returned unsatisfied. 44 c. Whenever a corporation or association shall make a sale, transfer 45 or assignment in bulk or any part or the whole of its race meeting 46 grounds or enclosures and the building and structures thereon, or its 47 lease, license or other agreement or right to possess or operate such 48 race meeting grounds or enclosures or of the equipment, machinery, 49 fixtures or supplies, or of the said race meeting grounds or enclosures 50 and the building and structures thereon, or lease, license or other 51 agreement or right to possess or operate such race meeting grounds or 52 enclosures, and the equipment, machinery, fixtures or supplies pertain- 53 ing to the conduct or the operation of the said race meeting grounds or 54 enclosures, otherwise than in the ordinary course of trade and in the 55 regular prosecution of said business, the purchaser, transferee or 56 assignee shall at least ten days before taking possession of such raceS. 8474 814 1 meeting grounds or enclosures and the building and structures thereon, 2 or lease, license or other agreement or right to possess or operate such 3 race meeting grounds or enclosures or the equipment, machinery, fixtures 4 or supplies, or of the said race meeting grounds or enclosures and the 5 building and structures thereon, or lease, license or other agreement or 6 right to possess or operate such race meeting grounds or enclosures, and 7 the equipment, machinery, fixtures or supplies or paying thereof, notify 8 the commissioner of finance by registered mail of the proposed sale and 9 of the price, terms and conditions thereof whether or not the seller, 10 transferor or assignor, has represented to, or informed the purchaser, 11 transferee or assignee that it owes any tax pursuant to this chapter and 12 whether or not the purchaser, transferee or assignee has knowledge that 13 such taxes are owing, and whether any such taxes are in fact owing. 14 Whenever the purchaser, transferee or assignee shall fail to give 15 notice to the commissioner of finance as required by the opening para- 16 graph of this subdivision, or whenever the commissioner of finance shall 17 inform the purchaser, transferee or assignee that a possible claim for 18 such tax or taxes exists, any sums of money, property or choses in 19 action, or other consideration, which the purchaser, transferee or 20 assignee is required to transfer over to the seller, transferor or 21 assignor shall be subject to a first priority right and lien for any 22 such taxes theretofore or thereafter determined to be due from the sell- 23 er, transferor or assignor to the city, and the purchaser, transferee or 24 assignee is forbidden to transfer to the seller, transferor or assignor 25 any such sums of money, property or choses in action to the extent of 26 the amount of the city's claim. For failure to comply with the 27 provisions of this subdivision, the purchaser, transferee or assignee, 28 in addition to being subject to the liabilities and remedies imposed 29 under the provisions of former article six of the uniform commercial 30 code, shall be personally liable for the payment to the city of any such 31 taxes theretofore or thereafter determined to be due to the city from 32 the seller, transferor or assignor, and such liability may be assessed 33 and enforced in the same manner as the liability for tax under this 34 chapter. 35 d. The commissioner of finance, if he or she finds that the interests 36 of the city will not thereby be jeopardized, and upon such conditions as 37 the commissioner of finance may require, may release any property from 38 the lien of any warrant or vacate such warrant for unpaid taxes, addi- 39 tions to tax, penalties and interest filed pursuant to subdivision b of 40 this section, and such release or vacating of the warrant may be 41 recorded in the office of any recording officer in which such warrant 42 has been filed. The clerk shall thereupon cancel and discharge as of the 43 original date of docketing the vacated warrant. 44 § 11-1211 General powers of the commissioner of finance. In addition 45 to the powers granted to the commissioner of finance in this chapter, 46 such commissioner is hereby authorized and empowered: 47 1. To make, adopt and amend rules and regulations appropriate to the 48 carrying out of this chapter and the purposes thereof; 49 2. To extend, for cause shown, the time for filing any return for a 50 period not exceeding thirty days; and to compromise disputed claims in 51 connection with the taxes hereby imposed; 52 3. To request information from the racing commission and the tax 53 commission of the state of New York, or any other state or the treasury 54 department of the United States relative to any person; and to afford 55 information to such commission or such treasury department relative toS. 8474 815 1 any person, any other provision of this chapter to the contrary notwith- 2 standing; 3 4. To delegate his or her functions under this section to a deputy 4 commissioner of finance or any employee or employees of the department 5 of finance; 6 5. To prescribe methods for determining the amount of the admissions 7 and for determining the tax; 8 6. To require racing corporations or associations to keep detailed 9 records of all race meetings and all attendance thereat, and to furnish 10 such information upon request to the commissioner of finance; 11 7. To require that the amount of the tax be printed, separate from 12 the price of admission, on tickets of admission. 13 § 11-1212 Administration of oaths and compelling testimony. a. The 14 commissioner of finance, his or her employees or agents duly designated 15 and authorized by the commissioner of finance, the tax appeals tribunal 16 and any of its duly designated and authorized employees or agents shall 17 have power to administer oaths and take affidavits in relation to any 18 matter or proceeding in the exercise of their powers and duties under 19 this chapter. The commissioner of finance and the tax appeals tribunal 20 shall have power to subpoena and require the attendance of witnesses and 21 the production of books, papers and documents to secure information 22 pertinent to the performance of the duties of the commissioner or of the 23 tax appeals tribunal under this section and of the enforcement of this 24 chapter and to examine them in relation thereto, and to issue commis- 25 sions for the examination of witnesses who are out of the state or 26 unable to attend before the commissioner of finance or the tax appeals 27 tribunal or excused from attendance. 28 b. A justice of the supreme court either in court or at chambers shall 29 have power summarily to enforce by proper proceedings the attendance and 30 testimony of witnesses and the production and examination of books, 31 papers and documents called for by the subpoena of the commissioner of 32 finance or the tax appeals tribunal under this chapter. 33 c. Cross-reference; criminal penalties. For failure to obey subpoenas 34 or for testifying falsely, see section 11-4007 of this title; for 35 supplying false or fraudulent information, see section 11-4009 of this 36 title. 37 d. The officers who serve the summons or subpoena of the commissioner 38 of finance or the tax appeals tribunal and witnesses attending in 39 response thereto shall be entitled to the same fees as are allowed to 40 officers and witnesses in civil cases in courts of record, except as 41 herein otherwise provided. Such officers shall be the city sheriff and 42 his or her duly appointed deputies, or any officers or employees of the 43 department of finance or the tax appeals tribunal, designated to serve 44 such process. 45 § 11-1213 Interest and penalties. (a) Interest on underpayments. If 46 any amount of tax is not paid over or paid on or before the last date 47 prescribed for payment, without regard to any extension of time granted 48 for payment, interest on such amount at the rate set by the commissioner 49 of finance pursuant to subdivision (g) of this section, or, if no rate 50 is set, at the rate of seven and one-half percent per annum, shall be 51 paid for the period from such last date to the date of payment. In 52 computing the amount of interest to be paid, such interest shall be 53 compounded daily. Interest under this subdivision shall not be paid if 54 the amount thereof is less than one dollar. 55 (b) (1) Failure to file return. (A) In case of failure to file a 56 return under this chapter on or before the prescribed date, determinedS. 8474 816 1 with regard to any extension of time for filing, unless it is shown that 2 such failure is due to reasonable cause and not due to willful neglect, 3 there shall be added to the amount required to be shown as tax on such 4 return five percent of the amount of such tax if the failure is for not 5 more than one month, with an additional five percent for each additional 6 month or fraction thereof during which such failure continues, not 7 exceeding twenty-five percent in the aggregate. 8 (B) In the case of a failure to file a return of tax within sixty days 9 of the date prescribed for filing of such return, determined with regard 10 to any extension of time for filing, unless it is shown that such fail- 11 ure is due to reasonable cause and not due to willful neglect, the addi- 12 tion to tax under subparagraph (A) of this paragraph shall not be less 13 than the lesser of one hundred dollars or one hundred percent of the 14 amount required to be shown as tax on such return. 15 (C) For purposes of this paragraph, the amount of tax required to be 16 shown on the return shall be reduced by the amount of any part of the 17 tax which is paid on or before the date prescribed for payment of the 18 tax and by the amount of any credit against the tax which may be claimed 19 upon the return. 20 (2) Failure to pay tax shown on return. In case of failure to pay the 21 amount shown as tax on a return required to be filed under this chapter 22 on or before the prescribed date, determined with regard to any exten- 23 sion of time for payment, unless it is shown that such failure is due to 24 reasonable cause and not due to willful neglect, there shall be added to 25 the amount shown as tax on such return one-half of one percent of the 26 amount of such tax if the failure is not for more than one month, with 27 an additional one-half of one percent for each additional month or frac- 28 tion thereof during which such failure continues, not exceeding twenty- 29 five percent in the aggregate. For the purpose of computing the addition 30 for any month the amount of tax shown on the return shall be reduced by 31 the amount of any part of the tax which is paid on or before the begin- 32 ning of such month and by the amount of any credit against the tax which 33 may be claimed upon the return. If the amount of tax required to be 34 shown on a return is less than the amount shown as tax on such return, 35 this paragraph shall be applied by substituting such lower amount. 36 (3) Failure to pay tax required to be shown on return. In case of 37 failure to pay any amount in respect of any tax required to be shown on 38 a return required to be filed under this chapter which is not so shown, 39 including a determination made pursuant to section 11-1206 of this chap- 40 ter, within ten days of the date of a notice and demand therefor, unless 41 it is shown that such failure is due to reasonable cause and not due to 42 willful neglect, there shall be added to the amount of tax stated in 43 such notice and demand one-half of one percent of such tax if the fail- 44 ure is not for more than one month, with an additional one-half of one 45 percent for each additional month or fraction thereof during which such 46 failure continues, not exceeding twenty-five percent in the aggregate. 47 For the purpose of computing the addition for any month, the amount of 48 tax stated in the notice and demand shall be reduced by the amount of 49 any part of the tax which is paid before the beginning of such month. 50 (4) Limitations on additions. (A) With respect to any return, the 51 amount of the addition under paragraph one of this subdivision shall be 52 reduced by the amount of the addition under paragraph two of this subdi- 53 vision for any month to which an addition applies under both paragraphs 54 one and two. In any case described in subparagraph (B) of paragraph one 55 of this subdivision, the amount of the addition under such paragraph one 56 shall not be reduced below the amount provided in such subparagraph.S. 8474 817 1 (B) With respect to any return, the maximum amount of the addition 2 permitted under paragraph three of this subdivision shall be reduced by 3 the amount of the addition under paragraph one of this subdivision, 4 determined without regard to subparagraph (B) of such paragraph one, 5 which is attributable to the tax for which the notice and demand is made 6 and which is not paid within ten days of such notice and demand. 7 (c) Underpayment due to negligence. (1) If any part of an underpay- 8 ment of tax is due to negligence or intentional disregard of this chap- 9 ter or any rules or regulations hereunder, but without intent to 10 defraud, there shall be added to the tax a penalty equal to five percent 11 of the underpayment. 12 (2) There shall be added to the tax, in addition to the amount deter- 13 mined under paragraph one of this subdivision, an amount equal to fifty 14 percent of the interest payable under subdivision (a) of this section 15 with respect to the portion of the underpayment described in such para- 16 graph one which is attributable to the negligence or intentional disre- 17 gard referred to in such paragraph one, for the period beginning on the 18 last date prescribed by law for payment of such underpayment, determined 19 without regard to any extension, and ending on the date of the assess- 20 ment of the tax, or, if earlier, the date of the payment of the tax. 21 (d) Underpayment due to fraud. (1) If any part of an underpayment of 22 tax is due to fraud, there shall be added to the tax a penalty equal to 23 fifty percent of the underpayment. 24 (2) There shall be added to the tax, in addition to the penalty deter- 25 mined under paragraph one of this subdivision, an amount equal to fifty 26 percent of the interest payable under subdivision (a) of this section 27 with respect to the portion of the underpayment described in such para- 28 graph one which is attributable to fraud, for the period beginning on 29 the last day prescribed by law for payment of such underpayment, deter- 30 mined without regard to any extension, and ending on the date of the 31 assessment of the tax, or, if earlier, the date of the payment of the 32 tax. 33 (3) The penalty under this subdivision shall be in lieu of any other 34 addition to tax imposed by subdivision (b) or (c) of this section. 35 (e) Additional penalty. Any person who, with fraudulent intent, shall 36 fail to pay any tax imposed by this chapter, or to make, render, sign or 37 certify any return, or to supply any information within the time 38 required by or under this chapter, shall be liable for a penalty of not 39 more than one thousand dollars, in addition to any other amounts 40 required under this chapter to be imposed, assessed and collected by the 41 commissioner of finance. The commissioner of finance shall have the 42 power, in his or her discretion, to waive, reduce or compromise any 43 penalty under this subdivision. 44 (f) The interest and penalties imposed by this section shall be paid 45 and disposed of in the same manner as other revenues from this chapter. 46 Unpaid interest and penalties may be enforced in the same manner as the 47 tax imposed by this chapter. 48 (g)(1) Authority to set interest rates. The commissioner of finance 49 shall set the rate of interest to be paid pursuant to subdivision (a) of 50 this section, but if no such rate of interest is set, such rate shall be 51 deemed to be set at seven and one-half percent per annum. Such rate 52 shall be the rate prescribed in paragraph two of this subdivision but 53 shall not be less than seven and one-half percent per annum. Any such 54 rate set by the commissioner of finance shall apply to taxes, or any 55 portion thereof, which remain or become due on or after the date on 56 which such rate becomes effective and shall apply only with respect toS. 8474 818 1 interest computed or computable for periods or portions of periods 2 occurring in the period in which such rate is in effect. 3 (2) General rule. The rate of interest set under this subdivision 4 shall be the sum of (i) the federal short-term rate as provided under 5 paragraph three of this subdivision, plus (ii) seven percentage points. 6 (3) Federal short-term rate. For purposes of this subdivision: 7 (A) The federal short-term rate for any month shall be the federal 8 short-term rate determined by the United States secretary of the treas- 9 ury during such month in accordance with subsection (d) of section 10 twelve hundred seventy-four of the internal revenue code for use in 11 connection with section six thousand six hundred twenty-one of the 12 internal revenue code. Any such rate shall be rounded to the nearest 13 full percent, or, if a multiple of one-half of one percent, such rate 14 shall be increased to the next highest full percent. 15 (B) Period during which rate applies. 16 (i) In general. Except as provided in clause (ii) of this subpara- 17 graph, the federal short-term rate for the first month in each calendar 18 quarter shall apply during the first calendar quarter beginning after 19 such month. 20 (ii) Special rule for the month of September, nineteen hundred eight- 21 y-nine. The federal short-term rate for the month of April, nineteen 22 hundred eighty-nine shall apply with respect to setting the rate of 23 interest for the month of September, nineteen hundred eighty-nine. 24 (4) Publication of interest rate. The commissioner of finance shall 25 cause to be published in the City Record, and give other appropriate 26 general notice of, the interest rate to be set under this subdivision no 27 later than twenty days preceding the first day of the calendar quarter 28 during which such interest rate applies. The setting and publication of 29 such interest rate shall not be included within paragraph (a) of subdi- 30 vision five of section one thousand forty-one of the city charter of the 31 preceding municipality as it existed January first, nineteen hundred 32 ninety-four relating to the definition of a rule. 33 (h) Miscellaneous. (1) Officers of a racing corporation or association 34 shall be personally liable for the tax collected or required to be 35 collected under this chapter, and subject to the penalties imposed by 36 this section. 37 (2) The certificate of the commissioner of finance to the effect that 38 a tax has not been paid, that a return or bond has not been filed, or 39 that information has not been supplied pursuant to the provisions of 40 this chapter, shall be presumptive evidence thereof. 41 (3) Cross-reference: For criminal penalties, see chapter forty of this 42 title. 43 § 11-1214 Returns to be secret. a. Except in accordance with proper 44 judicial order, or as otherwise provided by law, it shall be unlawful 45 for the commissioner of finance or the tax appeals tribunal or any offi- 46 cer or employee of the department of finance to divulge or make known in 47 any manner any of the information relating to the business of any person 48 contained in any return required under this chapter. The officers 49 charged with the custody of such returns shall not be required to 50 produce any of them or evidence of anything contained in them in any 51 action or proceeding in any court, except on behalf of the commissioner 52 of finance in an action or proceeding under the provisions of this chap- 53 ter, or on behalf of any party to any action or proceeding under the 54 provisions of this chapter, when the returns or facts shown thereby are 55 directly involved in such action or proceeding, in either of which 56 events the courts may require the production of, and may admit inS. 8474 819 1 evidence, so much of said returns or of the facts shown thereby, as are 2 pertinent to the action or proceeding and no more. The commissioner of 3 finance may, nevertheless, publish a copy or a summary of any determi- 4 nation or decision rendered after a formal hearing held pursuant to 5 section 11-1206 or 11-1207 of this chapter. Nothing in this section 6 shall be construed to prohibit the delivery to a person or such person's 7 duly authorized representative of a certified copy of any return filed 8 by such person nor to prohibit the publication of statistics so classi- 9 fied as to prevent the identification of particular returns and the 10 items thereof, or the inspection by the corporation counsel or other 11 legal representatives of the city, or by the district attorney of Rich- 12 mond county, of the return of any person who shall bring action to set 13 aside or review the tax based thereon, or against whom an action or 14 proceeding has been instituted for the collection of a tax or penalty. 15 Returns shall be preserved for three years and thereafter until the 16 commissioner of finance permits them to be destroyed. 17 b. (1) Any officer or employee of the city who willfully violates the 18 provisions of subdivision a of this section shall be dismissed from 19 office and be incapable of holding any public office in this city for a 20 period of five years thereafter. 21 (2) Cross-reference: For criminal penalties, see chapter forty of this 22 title. 23 c. This section shall be deemed a state statute for purposes of para- 24 graph (a) of subdivision two of section eighty-seven of the public offi- 25 cers law. 26 d. Notwithstanding anything in subdivision a of this section to the 27 contrary, if a taxpayer has petitioned the tax appeals tribunal for 28 administrative review as provided in section one hundred seventy of the 29 charter of the preceding municipality as it existed January first, nine- 30 teen hundred ninety-four, the commissioner of finance shall be author- 31 ized to present to the tribunal any report or return of such taxpayer, 32 or any information contained therein or relating thereto, which may be 33 material or relevant to the proceeding before the tribunal. The tax 34 appeals tribunal shall be authorized to publish a copy or a summary of 35 any decision rendered pursuant to section one hundred seventy-one of the 36 charter of the preceding municipality as it existed January first, nine- 37 teen hundred ninety-four. 38 § 11-1215 Notices and limitations of time. a. Any notice author- 39 ized or required under the provisions of this chapter may be given by 40 mailing the same to the person for whom it is intended in a postpaid 41 envelope addressed to such person at the address given in the last 42 return filed by such person pursuant to the provisions of this chapter 43 or in any application made by such person or if no return has been filed 44 or application made, then to such address as may be obtainable. The 45 mailing of such notice shall be presumptive evidence of the receipt of 46 the same by the person to whom addressed. Any period of time which is 47 determined according to the provisions of this chapter by the giving of 48 notice shall commence to run from the date of mailing of such notice. 49 b. The provisions of the civil practice law and rules or any other 50 law relative to limitations of time for the enforcement of a civil reme- 51 dy shall not apply to any proceeding or action taken by the city to 52 levy, appraise, assess, determine or enforce the collection of any tax 53 or penalty provided by this chapter. However, except in the case of a 54 wilfully false or fraudulent return with intent to evade the tax, no 55 assessment of additional tax shall be made after the expiration of more 56 than three years from the date of the filing of a return, provided, thatS. 8474 820 1 where no return has been filed as provided by law the tax may be 2 assessed at any time. 3 c. Where, before the expiration of the period prescribed under this 4 section for the assessment of an additional tax, a person has consented 5 in writing that such period be extended, the amount of such additional 6 tax due may be determined at any time within such extended period. The 7 period so extended may be further extended by subsequent consents in 8 writing made before the expiration of the extended period. 9 d. If any return, claim, statement, notice, application, or other 10 document required to be filed, or any payment required to be made, with- 11 in a prescribed period or on or before a prescribed date under authority 12 of any provision of this chapter is, after such period or such date, 13 delivered by United States mail to the commissioner of finance, the tax 14 appeals tribunal, bureau, office, officer or person with which or with 15 whom such document is required to be filed, or to which or to whom such 16 payment is required to be made, the date of the United States postmark 17 stamped on the envelope shall be deemed to be the date of delivery. This 18 subdivision shall apply only if the postmark date falls within the 19 prescribed period or on or before the prescribed date for the filing of 20 such document, or for making the payment, including any extension grant- 21 ed for such filing or payment, and only if such document or payment was 22 deposited in the mail, postage prepaid, properly addressed to the 23 commissioner of finance, bureau, office, officer or person with which or 24 with whom the document is required to be filed or to which or to whom 25 such payment is required to be made. If any document is sent by United 26 States registered mail, such registration shall be prima facie evidence 27 that such document was delivered to the commissioner of finance, the tax 28 appeals tribunal, bureau, office, officer or person to which or to whom 29 addressed, and the date of registration shall be deemed the postmark 30 date. The commissioner of finance or, where relevant, the tax appeals 31 tribunal is authorized to provide by regulation the extent to which the 32 provisions of the preceding sentence with respect to prima facie 33 evidence of delivery and the postmark date shall apply to certified 34 mail. Except as provided in subdivision f of this section, this subdivi- 35 sion shall apply in the case of postmarks not made by the United States 36 postal service only if and to the extent provided by regulation of the 37 commissioner of finance or, where relevant, the tax appeals tribunal. 38 e. When the last day prescribed under authority of this chapter, 39 including any extension of time, for performing any act falls on a 40 Saturday, Sunday or legal holiday in the state, the performance of such 41 act shall be considered timely if it is performed on the next succeeding 42 day which is not a Saturday, Sunday or legal holiday. 43 f. (1) Any reference in subdivision d of this section to the United 44 States mail shall be treated as including a reference to any delivery 45 service designated by the secretary of the treasury of the United States 46 pursuant to section seventy-five hundred two of the internal revenue 47 code and any reference in subdivision d of this section to a United 48 States postmark shall be treated as including a reference to any date 49 recorded or marked in the manner described in section seventy-five 50 hundred two of the internal revenue code by a designated delivery 51 service. If the commissioner of finance finds that any delivery service 52 designated by such secretary is inadequate for the needs of the city, 53 the commissioner of finance may withdraw such designation for purposes 54 of this title. The commissioner of finance may also designate additional 55 delivery services meeting the criteria of section seventy-five hundred 56 two of the internal revenue code for purposes of this title, or mayS. 8474 821 1 withdraw any such designation if the commissioner of finance finds that 2 a delivery service so designated is inadequate for the needs of the 3 city. Any reference in subdivision d of this section to the United 4 States mail shall be treated as including a reference to any delivery 5 service designated by the commissioner of finance and any reference in 6 subdivision d of this section to a United States postmark shall be 7 treated as including a reference to any date recorded or marked in the 8 manner described in section seventy-five hundred two of the internal 9 revenue code by a delivery service designated by the commissioner of 10 finance. Notwithstanding the provisions of this paragraph, any with- 11 drawal of designation or additional designation by the commissioner of 12 finance shall not be effective for purposes of service upon the tax 13 appeals tribunal, unless and until such withdrawal of designation or 14 additional designation is ratified by the president of the tax appeals 15 tribunal. 16 (2) Any equivalent of registered or certified mail designated by the 17 United States secretary of the treasury, or as may be designated by the 18 commissioner of finance pursuant to the same criteria used by such 19 secretary for such designations pursuant to section seventy-five hundred 20 two of the internal revenue code, shall be included within the meaning 21 of registered or certified mail as used in subdivision d of this 22 section. If the commissioner of finance finds that any equivalent of 23 registered or certified mail designated by such secretary or the commis- 24 sioner of finance is inadequate for the needs of the city, the commis- 25 sioner of finance may withdraw such designation for purposes of this 26 title. Notwithstanding the foregoing, any withdrawal of designation or 27 additional designation by the commissioner of finance shall not be 28 effective for purposes of service upon the tax appeals tribunal, unless 29 and until such withdrawal of designation or additional designation is 30 ratified by the president of the tax appeals tribunal. 31 § 11-1216 Disposition of revenues. All revenues resulting from the 32 imposition of the tax under this chapter at race meeting grounds or 33 enclosures located wholly within the city of Staten Island shall be 34 credited and deposited in the general fund of the city. 35 CHAPTER 13 36 CIGARETTE TAX 37 § 11-1301 Definitions. When used in this chapter the following words 38 shall have the meanings herein indicated: 39 1. "Cigarette." (a) Any roll for smoking made wholly or in part of 40 tobacco or any other substance wrapped in paper or in any other 41 substance not containing tobacco, and (b) any roll for smoking made 42 wholly or in part of tobacco wrapped in any substance containing tobacco 43 which, because of its appearance, the type of tobacco used in the 44 filler, or its packaging and labeling, is likely to be offered to, or 45 purchased by, consumers as a cigarette described in paragraph (a) of 46 this subdivision. However, a roll will not be considered to be a ciga- 47 rette for purposes of paragraph (b) of this subdivision if it is not 48 treated as a cigarette for federal excise tax purposes under the appli- 49 cable federal statute in effect on April first, two thousand eight. 50 "Cigarette" shall not include a research tobacco product. 51 2. "Person." Any individual, partnership, society, association, joint- 52 stock company, corporation, estate, receiver, trustee, assignee, referee 53 or any other person acting in a fiduciary or representative capacity,S. 8474 822 1 whether appointed by a court or otherwise, and any combination of indi- 2 viduals. 3 3. "Sale or purchase." Any transfer of title or possession or both, 4 exchange or barter, conditional or otherwise, in any manner or by any 5 means whatsoever or any agreement therefor. 6 4. "Use." Any exercise of a right or power, actual or constructive, 7 and shall include but is not limited to the receipt, storage, or any 8 keeping or retention for any length of time, but shall not include 9 possession for sale by a dealer. 10 5. "Dealer." Any wholesale dealer or retail dealer as defined in 11 subdivisions six and seven of this section. 12 6. "Wholesale dealer." Any person who sells cigarettes or tobacco 13 products to retail dealers or other persons for purposes of resale only, 14 and any person who owns, operates or maintains one or more cigarette 15 vending machines in, at or upon premises owned or occupied by any other 16 person. 17 7. "Retail dealer." Any person other than a wholesale dealer engaged 18 in selling cigarettes or tobacco products. For the purposes of this 19 chapter, the possession or transportation at any one time of five thou- 20 sand or more cigarettes or little cigars, or more than fifty cigars, or 21 more than one pound of loose tobacco, smokeless tobacco, snus or shisha, 22 or any combination thereof, by any person other than a manufacturer, an 23 agent, a licensed wholesale dealer or a person delivering cigarettes or 24 tobacco products in the regular course of business for a manufacturer, 25 an agent or a licensed wholesale or retail dealer, shall be presumptive 26 evidence that such person is a retail dealer. 27 8. "Package." The individual package, box or other container in or 28 from which retail sales of cigarettes are normally made or intended to 29 be made. 30 9. "Agent." Any person authorized to purchase and affix adhesive or 31 meter stamps under this chapter who is designated as an agent by the 32 commissioner of finance. 33 10. "Comptroller." The comptroller of the city. 34 11. "Commissioner of finance." The commissioner of finance of the 35 city. 36 12. "City." The city of Staten Island. 37 13. "Tax appeals tribunal." The tax appeals tribunal established by 38 section one hundred sixty-eight of the charter of the preceding munici- 39 pality as it existed January first, nineteen hundred ninety-four. 40 14. "Cigar." Any roll of tobacco for smoking that is wrapped in leaf 41 tobacco or in any substance containing tobacco, with or without a tip or 42 mouthpiece. Cigar does not include a little cigar as defined in this 43 section. 44 15. "Little cigar." Any roll of tobacco for smoking that is wrapped in 45 leaf tobacco or in any substance containing tobacco and that weighs no 46 more than four pounds per thousand or has a cellulose acetate or other 47 integrated filter. 48 16. "Loose tobacco." Any product that consists of loose leaves or 49 pieces of tobacco that is intended for use by consumers in a pipe, roll- 50 your-own cigarette, or similar product or device. 51 17. "Smokeless tobacco." Any tobacco product that consists of cut, 52 ground, powdered, or leaf tobacco and that is intended to be placed in 53 the oral or nasal cavity. 54 18. "Snus." Any smokeless tobacco product marketed and sold as snus, 55 and sold in ready-to-use pouches or loose as a moist powder.S. 8474 823 1 19. "Tobacco product." Any product which contains tobacco that is 2 intended for human consumption, including any component, part, or acces- 3 sory of such product. Tobacco product shall include, but not be limited 4 to, any cigar, little cigar, chewing tobacco, pipe tobacco, roll-your- 5 own tobacco, snus, bidi, snuff, shisha, or dissolvable tobacco product. 6 Tobacco product shall not include cigarettes or any product that has 7 been approved by the United States food and drug administration for sale 8 as a tobacco use cessation product or for other medical purposes and 9 that is being marketed and sold solely for such purposes. "Tobacco 10 products" shall not include research tobacco products. 11 20. "Shisha." Any product that contains tobacco and is smoked or 12 intended to be smoked in a hookah or water pipe. 13 21. "Research tobacco product." A tobacco product or cigarette that is 14 labeled as a research tobacco product, is manufactured for use in 15 research for health, scientific, or similar experimental purposes, is 16 exclusively used for such purposes by an accredited college, university 17 or hospital, or a researcher affiliated with an accredited college, 18 university or hospital, and is not offered for sale or sold to consumers 19 for any purpose. 20 § 11-1302 Imposition of tax. a. There is hereby imposed and shall 21 be paid a tax on: 22 1. All cigarettes possessed in the city for sale except as provided 23 in this section; 24 2. The use of all cigarettes in the city except as provided in this 25 section; 26 3. It is intended that the ultimate incidence of and liability for the 27 tax shall be upon the consumer, and that any agent, distributor or deal- 28 er who shall pay the tax to the commissioner of finance shall collect 29 the tax from the purchaser or consumer. Such tax shall be at the rate of 30 four cents for each ten cigarettes or fraction thereof, provided, howev- 31 er, that if a package of cigarettes contains more than twenty ciga- 32 rettes, the rate of tax on the cigarettes in such package in excess of 33 twenty shall be two cents for each five cigarettes or fraction thereof. 34 Provided further, however, that on and after July second, two thousand 35 two, such tax shall be at the rate of seventy-five cents for each ten 36 cigarettes or fraction thereof, provided, however, that if a package of 37 cigarettes contains more than twenty cigarettes, the rate of tax on the 38 cigarettes in such package in excess of twenty shall be thirty-eight 39 cents for each five cigarettes or fraction thereof. Such tax shall be 40 imposed only once on the same package of cigarettes. 41 b. The tax imposed by this section shall not apply to: 42 1. The use, otherwise than for sale, of four hundred cigarettes or 43 less brought into the city, on or in possession of, any person; 44 2. Cigarettes sold to the United States; 45 3. Cigarettes sold to or by a voluntary unincorporated organization 46 of the armed forces of the United States operating a place for the sale 47 of goods pursuant to regulations promulgated by the appropriate execu- 48 tive agency of the United States; 49 4. Cigarettes possessed in the city by any agent or wholesale dealer 50 for sale to a dealer outside the city or for sale and shipment to any 51 person in another state for use there, provided such agent or wholesale 52 dealer complies with the regulations relating thereto. 53 c. The tax imposed under this section shall be in addition to any and 54 all other taxes. 55 d. It shall be presumed that all sales or uses mentioned in this 56 section are subject to tax until the contrary is established, and theS. 8474 824 1 burden of proof that a sale or use is not taxable under this section 2 shall be upon the vendor or the purchaser. 3 e. Except as provided in this section, the tax shall be advanced and 4 paid by the agent or distributor. The agent shall be liable for the 5 collection and payment of the tax to the commissioner of finance by 6 purchasing from the commissioner of finance adhesive stamps of such 7 design and denomination as may be prescribed by such commissioner, 8 subject to the approval of the state commissioner of taxation and 9 finance. The tax may also be paid by the use of such metering machines 10 as are prescribed by the commissioner of finance subject to the approval 11 of the state commissioner of taxation and finance. 12 f. Within twenty-four hours after liability for the tax on the use of 13 cigarettes accrues each person liable for the tax shall file with the 14 commissioner of finance a return in such form as the commissioner of 15 finance may prescribe, together with a remittance of the tax shown to be 16 due thereon. 17 g. Agents located within or without the city shall purchase stamps 18 and affix them in the manner prescribed to packages of cigarettes to be 19 sold within the city. 20 h. The amount of taxes advanced and paid by the agent or distributor 21 as provided in this section shall be added to and collected as part of 22 the sales price of the cigarettes. 23 i. The commissioner of finance, notwithstanding any other provision 24 of this chapter, may, subject to the approval of the state commissioner 25 of taxation and finance, provide by regulation that the tax imposed by 26 this section shall be collected without the use of stamps. 27 § 11-1302.1. Imposition of tax on tobacco products. a. In accordance 28 with section one hundred ten of the public housing law, an excise tax on 29 the sale of tobacco products is hereby imposed and shall be paid on all 30 tobacco products possessed in the city for sale, except as provided 31 under this section. It is intended that the ultimate incidence of and 32 liability for the tax shall be upon the consumer. Any dealer or distrib- 33 utor who pays the tax to the commissioner of finance shall collect the 34 tax from the purchaser or consumer. Such tax shall be at the rate of ten 35 percent of the price floor for a package of the specified category of 36 tobacco product, exclusive of sales tax, set forth in the following 37 table, which shall be consistent with the price floors described in 38 subdivision d of section 17-176.1 of the code of the preceding munici- 39 pality: 40 Tobacco Product Price floor Amount of OTP tax 41 (excluding OTP and (excluding sales tax) 42 sales taxes) 43 Cigar $8.00 per cigar sold $0.80 per cigar; for 44 individually; for a a package, $0.80 for 45 package, number of first cigar, plus 46 cigars multiplied by $0.175 for each 47 $1.75 plus $6.25 additional cigar 48 Little cigar $10.95 per pack of 20 $1.09 per pack 49 little cigars 50 Smokeless tobacco $8.00 per 1.2 oz. pack- $0.80 per 1.2 oz. plus 51 age plus $2.00 for each an additional $0.20 for 52 additional 0.3 oz. or each 0.3 oz. or anyS. 8474 825 1 any fraction thereof in fraction thereof in 2 excess of 1.2 oz. excess of 1.2 oz. 3 Snus $8.00 per 0.32 oz. pack- $0.80 per 0.32 oz. 4 age plus $2.00 for each plus an additional 5 additional 0.08 oz. or $0.20 for each 0.08 oz. 6 any fraction thereof in or any fraction thereof 7 excess of 0.32 oz. in excess of 0.32 oz. 8 Shisha $17.00 per 3.5 oz. pack- $1.70 per 3.5 oz. plus 9 age plus $3.40 for each an additional $0.34 for 10 additional 0.7 oz. or for each 0.7 oz. or any 11 any fraction thereof in fraction thereof in 12 excess of 3.5 oz. excess of 3.5 oz. 13 Loose tobacco $2.55 per 1.5 oz. pack- $0.25 per 1.5 oz. pack- 14 age plus $0.51 for each age plus an additional 15 additional 0.3 oz. or $0.05 for each 0.3 oz. 16 any fraction thereof or any fraction thereof 17 in excess of 1.5 oz. in excess of 1.5 oz. 18 b. The tax imposed hereunder shall not apply to: 19 1. The state of New York, or any public corporation, including a 20 public corporation created pursuant to agreement or compact with another 21 state or the Dominion of Canada, improvement district or other political 22 subdivision of the state where it is the purchaser, user or consumer; 23 2. The United States of America, in so far as it is immune from taxa- 24 tion; 25 3. The United Nations or other world-wide international organizations 26 of which the United States of America is a member; 27 4. Any corporation, or association, or trust, or community chest, fund 28 or foundation, organized and operated exclusively for religious, chari- 29 table, or educational purposes, or for the prevention of cruelty to 30 children or animals, no part of the net earnings of which inures to the 31 benefit of any private shareholder or individual, and no substantial 32 part of the activities of which is carrying on propaganda, or otherwise 33 attempting to influence legislation; provided, however, that nothing in 34 this paragraph shall include an organization operated for the primary 35 purpose of carrying on a trade or business for profit, whether or not 36 all of its profits are payable to one or more organizations described in 37 this paragraph; and 38 5. Tobacco products possessed in the city by any dealer for sale 39 outside the city or for sale and shipment to any person in another state 40 for use there, provided such dealer complies with the regulations relat- 41 ing thereto. 42 c. Nothing in subdivision b of this section shall exempt sales by any 43 shop or store operated by any college, university or other public or 44 private institution for higher education from the taxes described in 45 this section. 46 d. The tax imposed under this section shall be in addition to any and 47 all other taxes. 48 e. It shall be presumed that all sales mentioned in this section are 49 subject to tax until the contrary is established, and the burden of 50 proof that a sale is not taxable under this section shall be upon the 51 dealer or the purchaser.S. 8474 826 1 f. 1. Except as provided in this subdivision, the tax shall be 2 advanced and paid by the wholesale dealer. The wholesale dealer shall be 3 liable for the collection and payment of the tax to the commissioner of 4 finance as required under subdivision g of this section. The commission- 5 er may require the wholesale dealer to keep tobacco products for which 6 the tax has not yet been paid separately from tobacco products for which 7 the tax has been paid. For purposes of this chapter, retention by the 8 wholesale dealer of any tobacco products beyond the time prescribed for 9 payment under this section, without having made the requisite payment, 10 or storing any such products in violation of any separation requirements 11 prescribed by the commissioner, shall be presumptive evidence that such 12 tobacco products are possessed in violation of the provisions of this 13 chapter. 14 2. Every retail dealer shall be liable for the tax on all tobacco 15 products in his or her possession at any time, upon which tax has not 16 been paid, and the failure of any retail dealer to produce and exhibit 17 to the commissioner of finance or such commissioner's duly authorized 18 representatives upon demand, an invoice by a licensed wholesale dealer 19 for any tobacco products in his or her possession, shall be presumptive 20 evidence the tax thereon has not been paid, that such retail dealer is 21 liable for the tax thereon, and the tobacco products are possessed in 22 violation of this chapter, unless evidence of such invoice or payment 23 shall later be produced. 24 g. 1. Each wholesale dealer shall file with the commissioner of 25 finance a return, on a form required by such commissioner, indicating 26 the amount of tax due pursuant to this section and any other information 27 the commissioner may require, on a monthly basis, or on such other regu- 28 lar interval as such commissioner may prescribe. Each wholesale dealer 29 shall file the return on the twentieth day of the month following the 30 end of the month or other interval covered by the return, unless the 31 commissioner of finance prescribes a greater number of days following 32 the end of the month or a different reporting interval. Each wholesale 33 dealer shall pay the amount of tax due upon filing the return unless the 34 commissioner prescribes a different date or time for such payment. 35 2. The commissioner of finance may: 36 (A) Authorize another person, including a distributor as defined in 37 subdivision twelve of section four hundred seventy of the tax law, who 38 is not a wholesale dealer, to advance and pay the tax imposed under this 39 section; 40 (B) Exempt wholesale dealers from the requirements of this subdivi- 41 sion, upon such conditions as may be imposed by such commissioner, if he 42 or she is satisfied the tax on the tobacco products has been or is being 43 advanced and paid by another wholesale dealer or a distributor author- 44 ized under this subdivision. 45 h. The amount of taxes advanced and paid by the wholesale dealer 46 pursuant to this section shall be added to and collected as part of the 47 sales price of the tobacco products. 48 § 11-1303 License. a. License required of wholesale and retail deal- 49 ers. 1. It shall be unlawful for a person to engage in business as a 50 wholesale or retail dealer without a license as prescribed in this 51 section or subchapter one of chapter two of title twenty of the code of 52 the preceding municipality, whichever is applicable. 53 2. It shall be unlawful for a person to permit any premises under such 54 person's control to be used by any other person in violation of para- 55 graph one of subdivision a of this section.S. 8474 827 1 b. Application for license. 1. Wholesale tobacco license. In order to 2 obtain a license to engage in business as a wholesale dealer, a person 3 shall file application with the commissioner of finance for one license 4 for each place of business that he or she desires to have for the sale 5 of cigarettes or tobacco products in the city. Every application for a 6 wholesale tobacco license shall be made upon a form prescribed and 7 prepared by the commissioner of finance and shall set forth such infor- 8 mation as the commissioner shall require. The commissioner of finance 9 may, for cause, refuse to issue a wholesale tobacco license. Upon 10 approval of the application, the commissioner of finance shall grant and 11 issue to the applicant a wholesale tobacco license for each place of 12 business within the city set forth in the application. Wholesale tobacco 13 licenses shall not be assignable and shall be valid only for the persons 14 in whose names such licenses have been issued and for the transaction of 15 business in the places designated therein and shall at all times be 16 conspicuously displayed at the places for which issued. 17 2. Retail tobacco license. In order to obtain a license to engage in 18 business as a retail dealer, a person shall file application with the 19 commissioner of consumer affairs and worker protection in accordance 20 with the provisions of section 20-202 of the code of the preceding muni- 21 cipality. 22 c. Duplicate licenses. Whenever any license issued by the commissioner 23 of finance under the provisions of this section is defaced, destroyed or 24 lost, the commissioner of finance shall issue a duplicate license to the 25 holder of the defaced, destroyed or lost license upon the payment of a 26 fee of fifteen dollars. A duplicate retail dealer license may be 27 obtained from the commissioner of consumer and worker protection as 28 provided in section 20-204 of the code of the preceding municipality. 29 d. Suspension or revocation of licenses. (1) After a hearing, the 30 commissioner of finance may suspend or revoke a wholesale tobacco 31 license and the commissioner of consumer and worker protection, upon 32 notice from the commissioner of finance, may suspend or revoke a retail 33 tobacco license whenever the commissioner of finance finds that the 34 holder thereof has failed to comply with any of the provisions of this 35 chapter or any rules of the commissioner of finance prescribed, adopted 36 and promulgated under this chapter. 37 (2) The commissioner of finance may also suspend or revoke a wholesale 38 tobacco license in accordance with the requirements of any other 39 sections of this code or any rules promulgated thereunder which author- 40 izes the suspension or revocation of a wholesale tobacco license. 41 (3) The commissioner of consumer and worker protection may also 42 suspend or revoke a retail tobacco license in accordance with the 43 requirements of any other section of this code or any rules promulgated 44 thereunder which authorize suspension or revocation of a retail tobacco 45 license. 46 (4) Upon suspending or revoking any wholesale tobacco license, the 47 commissioner of finance shall direct the holder thereof to surrender to 48 the commissioner of finance immediately all wholesale tobacco licenses 49 or duplicates thereof issued to such holder and the holder shall surren- 50 der promptly all such licenses to the commissioner of finance as 51 directed. Before the commissioner of finance suspends or revokes a 52 wholesale tobacco license or notifies the commissioner of consumer and 53 worker protection of a finding of a violation of this chapter with 54 respect to a retail tobacco license pursuant to paragraph one of this 55 subdivision, the commissioner of finance shall notify the holder and the 56 holder shall be entitled to a hearing, if desired, if the holder, withinS. 8474 828 1 ninety days from the date of such notification, or, if the commissioner 2 of finance has established a conciliation procedure pursuant to section 3 11-124 of this title and the taxpayer has requested a conciliation 4 conference in accordance therewith, within ninety days from the mailing 5 of a conciliation decision or the date of the commissioner's confirma- 6 tion of the discontinuance of the conciliation proceeding, both (A) 7 serves a petition upon the commissioner of finance and (B) files a peti- 8 tion with the tax appeals tribunal for a hearing. After such hearing, 9 the commissioner of finance, good cause appearing therefor, may suspend 10 or revoke the wholesale tobacco license, and, in the case of a retail 11 tobacco license, notify the commissioner of consumer and worker 12 protection of a violation of this chapter or any rules promulgated ther- 13 eunder. Upon such notification, the commissioner of consumer and worker 14 protection may suspend or revoke a retail cigarette license as provided 15 in subdivision b of section 20-206 of the code of the preceding munici- 16 pality. The commissioner of finance may, by rule, provide for granting a 17 similar hearing to an applicant who has been refused a wholesale ciga- 18 rette license by the commissioner of finance. 19 e. Prohibited sales and purchases. No agent or dealer shall sell ciga- 20 rettes or tobacco products to an unlicensed wholesale or retail dealer, 21 or to a wholesale or retail dealer whose license has been suspended or 22 revoked. 23 No dealer shall purchase cigarettes or tobacco products from any 24 person other than a manufacturer or a licensed wholesale dealer. 25 f. Retail dealers. The commissioner of finance may, after hearing, 26 issue an order prohibiting a retail dealer from selling cigarettes, for 27 such period as the order shall specify, for failure to comply with any 28 of the provisions of this chapter or any rules or regulations of the 29 commissioner of finance prescribed, adopted and promulgated under this 30 chapter. 31 g. License fees; numbering and registering of licenses; term. 1. The 32 annual fee for a wholesale dealer's license shall be six hundred 33 dollars, and the annual fee for a retail dealer's license shall be as 34 provided in subdivision c of section 20-202 of the code of the preceding 35 municipality. 36 2. Wholesale tobacco licenses shall be regularly numbered and duly 37 registered. 38 3. Wholesale tobacco licenses shall expire on January thirty-first 39 next succeeding the date of issuance unless sooner suspended or revoked. 40 § 11-1304 Preparation and sale of stamps; commissions. a. The 41 commissioner of finance shall, subject to the approval of the state tax 42 commission, prescribe, prepare and furnish stamps of such denominations 43 and quantities as may be necessary for the payment of the tax imposed by 44 this chapter, and may, from time to time, provide for the issuance and 45 exclusive use of stamps of a new design and forbid the use of stamps of 46 any other design. Such stamps shall be in the form of a single stamp 47 for the payment of the tax imposed by this chapter or, in lieu thereof, 48 a joint single stamp to be prepared and issued by the state of New York 49 and the city for the payment of the tax imposed by this chapter and the 50 taxes imposed by article twenty of the tax law. The commissioner of 51 finance may make such arrangements with the state tax commission for the 52 method of acquiring and the manner of sharing the costs of such joint 53 single stamps as he or she deems appropriate. The commissioner of 54 finance, subject to the approval of the state commissioner of taxation 55 and finance, shall make provisions for the sale of such stamps at suchS. 8474 829 1 places as he or she may deem necessary, and may appoint fiscal agents 2 for such purpose. 3 b. The commissioner of finance may appoint wholesale dealers of ciga- 4 rettes and any other person within or without the city as agents to 5 affix stamps to be used in paying the tax hereby imposed, but an agent 6 shall at all times have the right to appoint the person in his or her 7 employ who is to affix the stamps to any cigarettes under the agent's 8 control. Whenever the commissioner of finance shall sell, consign or 9 deliver to any such agent any such stamps, such agent shall be entitled 10 to receive as compensation for his or her services and expenses in 11 affixing such stamps, and to retain out of the moneys to be paid by the 12 agent for such stamps, a commission on the par value thereof. The 13 commissioner of finance is hereby authorized to prescribe a schedule of 14 commissions not exceeding five per centum, allowable to such agent for 15 affixing such stamps; provided, however, that the commissioner of 16 finance may authorize commissions to agents and temporary agents not 17 exceeding ten per centum for a special period not exceeding fifteen days 18 immediately following the enactment of this chapter to cover the initial 19 stamping of packages of cigarettes. Such schedule shall be uniform for 20 each type and denomination of stamp used, and may be on a graduated 21 scale with respect to the number of stamps purchased. In the event that 22 a joint stamp is issued, the commissions allowed shall be determined 23 jointly by the state commissioner of taxation and finance and the 24 commissioner of finance and shall be based on the full par value of such 25 stamp. The extent to which the city and the state of New York shall 26 bear the expense of such commissions shall be determined by agreement 27 between the commissioner of taxation and finance and the commissioner 28 of finance. The commissioner of finance may in his or her discretion 29 permit an agent to pay for such stamps within thirty days after the date 30 of sale, consignment or delivery of such stamps to such agents, and may 31 require any such agent to file with the commissioner of finance a bond, 32 issued by a surety company approved by the superintendent of insurance 33 as to solvency and responsibility and authorized to transact business in 34 the state, in such amounts as the commissioner of finance may fix, to 35 secure the payment of any sums from such agent pursuant to this chapter. 36 c. The commissioner of finance may redeem unused stamps lawfully in 37 the possession of any person. No person shall sell or offer for sale 38 any stamp issued under this chapter, except by written permission of the 39 commissioner of finance. The commissioner of finance may prescribe 40 rules and regulations concerning refunds, sales of stamps and redemp- 41 tions under the provisions of this chapter. 42 d. (1) Except as provided in this subdivision, it shall be unlawful 43 for any person to sell, offer for sale, possess or transport any affixed 44 or unaffixed false, altered or counterfeit cigarette tax stamps, 45 imprints or impressions. 46 (2) Paragraph one of this subdivision shall not apply to: 47 (A) a person, other than a retail dealer, in possession of twenty or 48 fewer affixed tax stamps; 49 (B) public officers or employees in the performance of their official 50 duties requiring possession or control of affixed or unaffixed false, 51 altered or counterfeit cigarette tax stamps, imprints or impressions; or 52 (C) any person authorized by the commissioner of finance or the 53 commissioner of the department of taxation and finance of the state of 54 New York to perform law enforcement functions. 55 § 11-1305 Affixation and cancellation of stamps; presumptions. a. 56 Each agent shall affix to each package of cigarettes stamps evidencingS. 8474 830 1 the payment of tax imposed by this chapter and shall cancel such stamps 2 prior to delivery of such cigarettes to any dealer in the city, unless 3 stamps have been affixed to such packages of cigarettes and cancelled 4 before such agent received them. 5 b. Each dealer, other than an agent, in the city shall immediately 6 upon the receipt of any cigarettes at his or her place of business mark 7 in ink on each unopened box, carton or other container of such ciga- 8 rettes the word "received" and the year, month, day and hour of such 9 receipt and shall affix his or her signature thereto or shall mark them 10 in any other manner prescribed by the commissioner of finance. In addi- 11 tion, each retail dealer shall, within twenty-four hours after receipt 12 of any cigarettes at his or her place of business and prior to exposing 13 for sale or sale by such retail dealer of such cigarettes, open such 14 box, carton or other container and, unless such stamps have been previ- 15 ously affixed, immediately notify the dealer from whom he or she 16 purchased such cigarettes and arrange for the replacement by the dealer 17 of such cigarettes by cigarettes with such stamps affixed within twen- 18 ty-four hours. 19 c. Stamps shall be cancelled in the manner prescribed by regulation. 20 d. Whenever any cigarettes are found in the place of business of a 21 dealer without the stamps affixed and cancelled, or not marked as having 22 been received within the preceding twenty-four hours, the prima facie 23 presumption shall arise that such cigarettes are kept therein in 24 violation of the provisions of this chapter. 25 e. Stamps shall be affixed to each package of cigarettes of an aggre- 26 gate denomination not less than the amount of the tax upon the contents 27 therein, and shall be affixed in such manner as to be visible to the 28 purchaser. 29 § 11-1306 Possession and transportation of unstamped cigarettes. 30 Every person who shall possess or transport upon the public highways, 31 roads or streets of this city more than four hundred cigarettes in 32 unstamped packages, shall be required to have in his or her actual 33 possession invoices or delivery tickets for such cigarettes. All such 34 invoices or delivery tickets shall show the true name and address of the 35 consignor or seller, the true name and address of the consignee or 36 purchaser and the quantity and brands of the cigarettes transported. 37 The absence of such invoices or delivery tickets shall be prima facie 38 evidence that such person is a dealer in cigarettes in the city and 39 subject to the provisions of this chapter. 40 § 11-1307 Records to be kept; examination. a. 1. At the time of 41 delivering cigarettes to any person in the city, each agent or wholesale 42 dealer shall make a true duplicate invoice showing the date of delivery, 43 the number of packages and the number of cigarettes contained therein in 44 each shipment of cigarettes delivered, and the name of the purchaser to 45 whom delivery is made, and shall retain the same for a period of three 46 years subject to the use and inspection of the commissioner of finance. 47 Each dealer shall procure and retain invoices showing the number of 48 packages and the number of cigarettes contained therein in each shipment 49 of cigarettes received by such dealer, the date thereof, and the name of 50 the shipper, and shall retain the same for a period of three years 51 subject to the use and inspection of the commissioner of finance. 52 2. At the time of delivering tobacco products to any person in the 53 city, each wholesale dealer shall make a true duplicate invoice showing 54 the date of delivery, the number of packages and the number of tobacco 55 products contained therein as well as any tobacco products not in pack- 56 ages in each shipment of tobacco products delivered, and the name of theS. 8474 831 1 purchaser to whom delivery is made and shall retain the same for a peri- 2 od of three years subject to the use and inspection of the commissioner 3 of finance. Each dealer shall procure and retain invoices showing the 4 number of packages and the number of tobacco products contained therein 5 as well as any tobacco products not in packages in each shipment of 6 tobacco products received by such dealer, the date thereof, and the name 7 of the shipper, and shall retain the same for a period of three years 8 subject to the use and inspection of the commissioner of finance. 9 3. Each dealer shall retain any other records and in such form as may 10 be required by the commissioner of finance indicating proof of the 11 payment of the tax imposed under section 11-1302.1 of this chapter. Any 12 failure to provide such records upon request by the commissioner of 13 finance or such commissioner's duly authorized representatives shall be 14 presumptive evidence that the dealer has violated the provisions of this 15 chapter. 16 b. The commissioner of finance by regulation may provide that whenever 17 cigarettes or tobacco products are shipped into the city, the railroad 18 company, express company, trucking company, or carrier transporting any 19 shipment thereof shall file with the commissioner of finance a copy of 20 the freight bill within ten days after the delivery in the city of each 21 shipment. 22 c. All dealers shall maintain and keep for a period of three years 23 such other records of cigarettes or tobacco products received or sold 24 within the city as may be required by the commissioner of finance. All 25 wholesale dealers shall maintain and keep for a period of three years 26 such other records of cigarettes or tobacco products delivered within 27 the city. 28 d. Without limiting the powers granted the commissioner of consumer 29 and worker protection pursuant to title twenty of the code of the 30 preceding municipality and any rules promulgated thereunder, the commis- 31 sioner of finance or the commissioner's duly authorized representatives 32 are hereby authorized to examine the books, papers, invoices and other 33 records, and stock of cigarettes or tobacco products in and upon any 34 premises where the same are placed, stored and sold, and equipment of 35 any such agent or dealer pertaining to the sale and delivery of ciga- 36 rettes or tobacco products taxable under this chapter. To verify the 37 accuracy of the tax imposed and assessed by this chapter, each such 38 person is hereby directed and required to give to the commissioner of 39 finance or the commissioner's duly authorized representatives, the 40 means, facilities and opportunity for such examinations as are herein 41 provided for and required. 42 e. The commissioner of finance shall investigate any failure to pay 43 the tax required by this chapter or any other failure to comply with 44 this chapter or the rules or regulations promulgated thereunder, and 45 shall take the necessary steps to enforce compliance therewith. 46 § 11-1308 General powers of the commissioner of finance. In addition 47 to the powers granted to the commissioner of finance in this chapter, he 48 or she is hereby authorized and empowered: 49 1. To make, adopt and amend rules and regulations appropriate to the 50 carrying out of this chapter and the purposes thereof; and to require 51 the filing of reports by agents and/or dealers; 52 2. To prescribe the method and the means to be used in the cancella- 53 tion of stamps; 54 3. To fix the denominations and the method of sale of stamps; 55 4. To delegate his or her powers to a deputy or other employee or 56 employees of the department of finance;S. 8474 832 1 5. To extend, for cause shown, the time for filing any return or 2 reports for a period not exceeding thirty days; and to compromise 3 disputed claims in connection with the taxes hereby imposed; 4 6. To assess, determine, revise and adjust the taxes imposed under 5 this chapter; 6 7. To request information from the state commissioner of taxation and 7 finance, the treasury department of the United States or the taxing 8 officials of any other state or city that imposes a similar tax to any 9 tax imposed by this chapter, and to afford information to such commis- 10 sion, department or other taxing official, any other provision of this 11 chapter to the contrary notwithstanding; 12 8. To enter into an arrangement with the state commissioner of taxa- 13 tion and finance with respect to cooperative collection, auditing or 14 administration of the taxes imposed by this chapter and the taxes 15 imposed by article twenty of the tax law of the state of New York. 16 9. To prescribe forms to be filled out by the vendor or purchaser, or 17 both, in each instance in which a sale is made by an agent or wholesale 18 dealer to a person outside the state or the city or to a dealer in the 19 city for purposes of resale outside the state or the city. 20 10. To appoint any dealer as a temporary agent to buy and affix 21 stamps for a period not in excess of fifteen days. 22 11. In furtherance of the purposes of paragraph three of subdivision 23 a of section 11-1302 of this chapter, to provide by appropriate regu- 24 lation for the maintenance of such differentials in wholesale and retail 25 prices of cigarettes sold by any vendor, other than the manufacturer, so 26 as to reflect the amounts of tax attributable to the tar and nicotine 27 content of cigarettes sold. In so doing he or she may use and consider 28 the factory price of various brands of cigarettes. In addition, the 29 commissioner may consider the mode or method by which retail sales are 30 effected and limit his or her regulations so as to affect any one or 31 more or all of such modes or methods. 32 § 11-1309 Notifying taxpayers of assessments. a. The owner of any 33 lot, piece or parcel of land in the city of Staten Island or any person 34 interested in such lot, piece or parcel, may file with the bureau of 35 city collections a statement containing a brief description of such 36 land, together with the section, block and lot number thereof, or such 37 other designation as at the time is established by the department of 38 finance, and a statement of the applicant's interest therein, together 39 with a written request that such lot, piece or parcel of land be regis- 40 tered in such bureau, in the name of the applicant. In such statement 41 the applicant shall designate a post office address to which notifica- 42 tions addressed to such applicant shall be sent. A brief description of 43 such lot, piece or parcel of land corresponding to the description ther- 44 eof in the statement so filed, together with the name of the applicant 45 and his or her post office address and the date of such application, 46 shall thereupon be registered in the offices of such bureau as herein- 47 after provided. 48 b. As soon as any assessment for a local improvement shall have been 49 confirmed, including assessments confirmed by a court of record, and the 50 list thereof shall have been entered and filed in the bureau of city 51 collections, such assessment list shall be examined and thereupon, with- 52 in twenty days after such entry there shall be mailed a notice addressed 53 to each person in whose name any lot, piece or parcel of land, affected 54 by such assessment, is registered, at the post office address registered 55 in the records of such bureau, which notice shall contain the brief 56 description of the lot, piece or parcel of land registered in the nameS. 8474 833 1 of the person to whom such notice is addressed, together with the amount 2 assessed thereon, date of entry, and title of the improvement for which 3 such assessment is made, and a statement of the rate of interest or 4 penalty imposed for the nonpayment of such assessment, and the date from 5 which the interest or penalty will be computed. Failure to comply with 6 the provisions of this section, however, shall in no manner affect the 7 validity or collectibility of any assessment heretofore or hereafter 8 confirmed, nor shall any claim arise or exist against the comptroller, 9 the commissioner of finance, the city collector or any officer of the 10 city by reason of such failure. 11 c. The city collector shall for the purpose of this section provide 12 appropriate records for each section of the city as the same shall 13 appear upon the tax maps of the city. 14 § 11-1310 Determination of tax. If any person fails to pay the tax, or 15 to file a return required by this chapter or if a return, when filed, is 16 insufficient and the maker fails to file a corrected or sufficient 17 return within ten days after the same may be required by notice from the 18 commissioner of finance, the commissioner of finance shall determine the 19 amount of tax due from such information as may be obtainable or on the 20 basis of external indices, such as number of cigarettes purchased or 21 sold, number of tobacco products purchased or sold, stock on hand, 22 volume of sales by similar dealers or other factors. Notice of such 23 determination shall be given to the person liable for the payment of the 24 tax. Such determination shall finally and irrevocably fix the tax unless 25 the person against whom it is assessed shall, within ninety days of the 26 giving of such notice, or, if the commissioner of finance has estab- 27 lished a conciliation procedure pursuant to section 11-124 of this title 28 and the person liable for the tax has requested a conciliation confer- 29 ence in accordance therewith, within ninety days from the mailing of a 30 conciliation decision or the date of the commissioner's confirmation of 31 the discontinuance of the conciliation proceeding, both (1) serves a 32 petition upon the commissioner of finance and (2) files a petition with 33 the tax appeals tribunal for a hearing, or unless the commissioner of 34 finance shall of his or her own motion redetermine such tax. Such hear- 35 ing and any appeal to the tax appeals tribunal sitting en banc from the 36 decision rendered in such hearing shall be conducted in the manner and 37 subject to the requirements prescribed by the tax appeals tribunal 38 pursuant to sections one hundred sixty-eight through one hundred seven- 39 ty-two of the charter of the preceding municipality as it existed Janu- 40 ary first, nineteen hundred ninety-four. After such hearing the tax 41 appeals tribunal shall give notice of its decision to the person liable 42 for the tax and to the commissioner of finance. A decision of the tax 43 appeals tribunal sitting en banc shall be reviewable for error, illegal- 44 ity, unconstitutionality or any other reason whatsoever by a proceeding 45 under article seventy-eight of the civil practice law and rules if 46 instituted by the person against whom the tax was assessed within four 47 months after the giving of the notice of such tax appeals tribunal deci- 48 sion; provided however, that if such decision regards the tax imposed 49 under section 11-1302.1 of this chapter, such proceeding must be insti- 50 tuted by the person against whom the tax was assessed within thirty days 51 after the giving of the notice of such tax appeals tribunal decision. 52 Such proceeding shall not be instituted by a person liable for the tax 53 unless the amount of any tax sought to be reviewed with interest and 54 penalties thereon, if any, shall have first been deposited with the 55 commissioner of finance and an undertaking filed with the commissioner 56 of finance in such amount and with such sureties as a justice of theS. 8474 834 1 supreme court shall approve, to the effect that if such proceeding be 2 dismissed or the tax confirmed, such person will pay all costs and 3 charges which may accrue in the prosecution of the proceeding. 4 § 11-1311 Refunds. a. In the manner provided in this subdivision the 5 commissioner of finance shall refund, without interest, any tax, inter- 6 est or penalty erroneously, illegally or unconstitutionally collected or 7 paid. In addition, whenever any cigarettes upon which stamps have been 8 affixed have been sold and shipped to a dealer outside the city for sale 9 there or to any person in another state for use there, or have become 10 unfit for use and consumption or unsalable, or have been destroyed, the 11 dealer shall be entitled to a refund of the amount of tax paid, less the 12 applicable commission, with respect to such cigarettes. 13 In any event no refund shall be granted unless application to the 14 commissioner of finance therefor is made within two years after the 15 stamps were affixed to such cigarettes or the tax was paid, except if a 16 person has consented in writing to an extension of the period for 17 assessment of additional tax pursuant to subdivision c of section 18 11-1315 of this chapter, and such consent is given within the two-year 19 period for making a refund application provided in this subdivision, the 20 period for making a refund application shall not expire prior to six 21 months after the expiration of the period within which an assessment 22 could be made pursuant to such consent or any extension thereof. 23 Whenever a refund is made or denied by the commissioner of finance, 24 the commissioner shall state his or her reasons therefor and give notice 25 thereof to the applicant in writing. A person shall not be entitled to a 26 hearing in connection with such application for a refund if such person 27 has already had a hearing or had been given the opportunity of a hearing 28 as provided in section 11-1310 of this chapter or has failed to avail 29 himself or herself of the remedies therein provided. No refund shall be 30 made of a tax, interest or penalty paid pursuant to a determination of 31 the commissioner of finance as provided in section 11-1310 of this chap- 32 ter, unless the tax appeals tribunal, after a hearing as in said section 33 provided or the commissioner of finance, of his or her own motion, shall 34 have reduced the tax or penalty, or it shall have been established in a 35 proceeding, pursuant to article seventy-eight of the civil practice law 36 and rules that such determination was erroneous, illegal, unconstitu- 37 tional or otherwise improper, in which event a refund without interest 38 shall be made as provided upon the determination of such proceeding. Any 39 determination of the commissioner of finance denying a refund pursuant 40 to this subdivision shall be final and irrevocable unless the applicant 41 for such refund, within ninety days from the mailing of notice of such 42 determination, or, if the commissioner of finance has established a 43 conciliation procedure pursuant to section 11-124 of this title and the 44 applicant has requested a conciliation conference in accordance there- 45 with, within ninety days from the mailing of a conciliation decision or 46 the date of the commissioner's confirmation of the discontinuance of the 47 conciliation proceeding, both (1) serves a petition upon the commission- 48 er of finance and (2) files a petition with the tax appeals tribunal for 49 a hearing. 50 Such petition for a refund made as provided in this subdivision shall 51 be deemed an application for a revision of any tax, penalty or interest 52 complained of. Such hearing and any appeal to the tax appeals tribunal 53 sitting en banc from the decision rendered in such hearing shall be 54 conducted in the manner and subject to the requirements prescribed by 55 the tax appeals tribunal pursuant to sections one hundred sixty-eight 56 through one hundred seventy-two of the charter of the preceding munici-S. 8474 835 1 pality. After such hearing, the tax appeals tribunal shall give notice 2 of its decision to the applicant and to the commissioner of finance. 3 The applicant shall be entitled to maintain a proceeding under article 4 seventy-eight of the civil practice law and rules to review a decision 5 of the tax appeals tribunal sitting en banc, provided, however, that 6 such proceeding is instituted within four months after such decision, 7 provided however, that if such decision regards the tax imposed under 8 section 11-1302.1 of this chapter, such proceeding must be instituted 9 within thirty days after such decision, and provided, further, in the 10 case of an application by a person liable for the tax, that a final 11 determination of tax due was not previously made, and that an undertak- 12 ing shall first be filed by such person with the commissioner of finance 13 in such amount and with such sureties as a justice of the supreme court 14 shall approve, to the effect that if such proceeding be dismissed or the 15 tax confirmed such person will pay all costs and charges which may 16 accrue in the prosecution of such proceeding. 17 b. If the commissioner of finance is satisfied that any dealer is 18 entitled to a refund the commissioner shall issue to such dealer stamps 19 of sufficient value to cover the refund or to make such refund. 20 § 11-1312 Reserves. In cases where the taxpayer has applied for a 21 refund and has instituted proceedings under article seventy-eight of the 22 civil practice law and rules to review a determination adverse to the 23 taxpayer on his or her application for refund or has deposited the 24 amount of tax assessed in connection with proceedings under section 25 11-1310 of this chapter, the comptroller shall set up appropriate 26 reserves to meet any decision adverse to the city. 27 § 11-1313 Remedies exclusive. The remedies provided by sections 28 11-1310 and 11-1311 of this chapter shall be the exclusive remedies 29 available to any person for the review of tax liability imposed by this 30 chapter; and no determination or proposed determination of tax or deter- 31 mination on an application for refund by the commissioner of finance, 32 nor any decision by the tax appeals tribunal or any of its administra- 33 tive law judges, shall be enjoined or reviewed by an action for declara- 34 tory judgment, an action for money had and received, or by any legal or 35 equitable action or proceeding other than, in the case of a decision by 36 the tax appeals tribunal sitting en banc, a proceeding under article 37 seventy-eight of the civil practice law and rules; provided, however, 38 that a taxpayer may proceed by declaratory judgment if the taxpayer 39 institutes suit within thirty days after a deficiency assessment is made 40 and pays the amount of the deficiency assessment to the commissioner of 41 finance prior to the institution of such suit and posts a bond for costs 42 as provided in section 11-1310 of this chapter. 43 § 11-1314 Proceedings to recover tax. a. Whenever any person shall 44 fail to pay any tax, penalty or interest imposed by this chapter as 45 herein provided, the corporation counsel shall, upon the request of the 46 commissioner of finance, bring or cause to be brought an action to 47 enforce the payment of the same on behalf of the city in any court of 48 the state of New York or of any other state or of the United States. 49 If, however, the commissioner of finance in his or her discretion 50 believes that a taxpayer subject to the provisions of this chapter is 51 about to cease business, leave the state or remove or dissipate the 52 assets out of which the tax, interest or penalties might be satisfied 53 and that any such tax, interest or penalty will not be paid when due, he 54 or she may declare such tax, interest or penalty to be immediately due 55 and payable and may issue a warrant immediately.S. 8474 836 1 b. In addition to all other remedies for the collection of any taxes, 2 penalties or interest due under the provisions of this chapter, the 3 commissioner of finance may with respect to any tax imposed under 4 section 11-1302 of this chapter or any penalties or interest related 5 thereto issue a warrant, directed to the city sheriff commanding the 6 sheriff to levy upon and sell the real and personal property of the 7 person liable for the tax which may be found within the city, for the 8 payment of the amount thereof, with any penalties and interest and the 9 cost of executing the warrant, and to return such warrant to the commis- 10 sioner of finance and to pay to the commissioner the money collected by 11 virtue thereof within sixty days after the receipt of such warrant. The 12 city sheriff shall within five days after the receipt of the warrant 13 file with the county clerk a copy thereof, and thereupon such clerk 14 shall enter in the judgment docket the name of the person mentioned in 15 the warrant and the amount of the taxes, penalty and interest for which 16 the warrant is issued and the date when such copy is filed. Thereupon 17 the amount of such warrant shall become a lien upon the title to and 18 interest in real and personal property of the person against whom the 19 warrant is issued. The city sheriff shall then proceed upon the warrant 20 in the same manner and with like effect as that provided by law in 21 respect to executions issued against property upon judgments of a court 22 of record, and for services in executing the warrant the city sheriff 23 shall be entitled to the same fees which he or she may collect in the 24 same manner. In the discretion of the commissioner of finance a warrant 25 of like terms, force and effect may be issued and directed to any offi- 26 cer or employee of the department of finance, and in the execution ther- 27 eof such officer or employee shall have all the powers conferred by law 28 upon sheriffs, but shall be entitled to no fee or compensation in excess 29 of the actual expenses paid in the performance of such duty. If a 30 warrant is returned not satisfied in full, the commissioner of finance 31 may from time to time issue new warrants and shall have the same reme- 32 dies to enforce the amount due thereunder as if the city had recovered 33 judgment therefor and execution thereon had been returned unsatisfied. 34 c. The commissioner of finance, if he or she finds that the interests 35 of the city will not thereby be jeopardized, and upon such conditions as 36 the commissioner of finance may require, may release any property from 37 the lien of any warrant or vacate such warrant for unpaid taxes, addi- 38 tions to tax, penalties and interest filed pursuant to subdivision b of 39 this section, and such release or vacating of the warrant may be 40 recorded in the office of any recording officer in which such warrant 41 has been filed. The clerk shall thereupon cancel and discharge as of the 42 original date of docketing the vacated warrant. 43 § 11-1315 Notices and limitations of time. a. Any notice author- 44 ized or required under the provisions of this chapter may be given by 45 mailing the same to the person for whom it is intended in a postpaid 46 envelope addressed to such person at the address given in the last 47 return filed by such person pursuant to the provisions of this chapter 48 or in any application made by such person or, if no return has been 49 filed or application made, then to such address as may be obtainable. 50 The mailing of such notice shall be presumptive evidence of the receipt 51 of the same by the person to whom addressed. Any period of time which 52 is determined according to the provisions of this chapter by the giving 53 of notice shall commence to run from the date of mailing of such notice. 54 b. The provisions of the civil practice law and rules or any other 55 law relative to limitations of time for the enforcement of a civil reme- 56 dy shall not apply to any proceeding or action taken by the city toS. 8474 837 1 levy, appraise, assess, determine or enforce the collection of any tax, 2 interest or penalty provided by this chapter. However, except in the 3 case of a wilfully false or fraudulent return with intent to evade the 4 tax, no assessment of additional tax shall be made after the expiration 5 of more than three years from the date of the filing of a return, 6 provided, that where no return has been filed as provided by law the tax 7 may be assessed at any time. 8 c. Where, before the expiration of the period prescribed herein for 9 the assessment of an additional tax, a person has consented in writing 10 that such period be extended, the amount of such additional tax due may 11 be determined at any time within such extended period. The period so 12 extended may be further extended by subsequent consents in writing made 13 before the expiration of the extended period. 14 d. If any return, claim, statement, notice, application, or other 15 document required to be filed, or any payment required to be made, with- 16 in a prescribed period or on or before a prescribed date under authority 17 of any provision of this chapter is, after such period or such date, 18 delivered by United States mail to the commissioner of finance, the tax 19 appeals tribunal, bureau, office, officer or person with which or with 20 whom such document is required to be filed, or to which or to whom such 21 payment is required to be made, the date of the United States postmark 22 stamped on the envelope shall be deemed to be the date of delivery. This 23 subdivision shall apply only if the postmark date falls within the 24 prescribed period or on or before the prescribed date for the filing of 25 such document, or for making the payment, including any extension grant- 26 ed for such filing or payment, and only if such document or payment was 27 deposited in the mail, postage prepaid, properly addressed to the 28 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 29 cer or person with which or with whom the document is required to be 30 filed or to which or to whom such payment is required to be made. If any 31 document is sent by United States registered mail, such registration 32 shall be prima facie evidence that such document was delivered to the 33 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 34 cer or person to which or to whom addressed, and the date of registra- 35 tion shall be deemed the postmark date. The commissioner of finance or, 36 where relevant, the tax appeals tribunal is authorized to provide by 37 regulation the extent to which the provisions of this subdivision with 38 respect to prima facie evidence of delivery and the postmark date shall 39 apply to certified mail. Except as provided in subdivision f of this 40 section, this subdivision shall apply in the case of postmarks not made 41 by the United States postal service only if and to the extent provided 42 by regulation of the commissioner of finance or, where relevant, the tax 43 appeals tribunal. 44 e. When the last day prescribed under authority of this chapter, 45 including any extension of time, for performing any act falls on a 46 Saturday, Sunday or legal holiday in the state, the performance of such 47 act shall be considered timely if it is performed on the next succeeding 48 day which is not a Saturday, Sunday or legal holiday. 49 f. (1) Any reference in subdivision d of this section to the United 50 States mail shall be treated as including a reference to any delivery 51 service designated by the secretary of the treasury of the United States 52 pursuant to section seventy-five hundred two of the internal revenue 53 code and any reference in subdivision d of this section to a United 54 States postmark shall be treated as including a reference to any date 55 recorded or marked in the manner described in section seventy-five 56 hundred two of the internal revenue code by a designated deliveryS. 8474 838 1 service. If the commissioner of finance finds that any delivery service 2 designated by such secretary is inadequate for the needs of the city, 3 the commissioner of finance may withdraw such designation for purposes 4 of this title. The commissioner of finance may also designate additional 5 delivery services meeting the criteria of section seventy-five hundred 6 two of the internal revenue code for purposes of this title, or may 7 withdraw any such designation if the commissioner of finance finds that 8 a delivery service so designated is inadequate for the needs of the 9 city. Any reference in subdivision d of this section to the United 10 States mail shall be treated as including a reference to any delivery 11 service designated by the commissioner of finance and any reference in 12 subdivision d of this section to a United States postmark shall be 13 treated as including a reference to any date recorded or marked in the 14 manner described in section seventy-five hundred two of the internal 15 revenue code by a delivery service designated by the commissioner of 16 finance, provided, however, any withdrawal of designation or additional 17 designation by the commissioner of finance shall not be effective for 18 purposes of service upon the tax appeals tribunal, unless and until such 19 withdrawal of designation or additional designation is ratified by the 20 president of the tax appeals tribunal. 21 (2) Any equivalent of registered or certified mail designated by the 22 United States secretary of the treasury, or as may be designated by the 23 commissioner of finance pursuant to the same criteria used by such 24 secretary for such designations pursuant to section seventy-five hundred 25 two of the internal revenue code, shall be included within the meaning 26 of registered or certified mail as used in subdivision d of this 27 section. If the commissioner of finance finds that any equivalent of 28 registered or certified mail designated by such secretary or the commis- 29 sioner of finance is inadequate for the needs of the city, the commis- 30 sioner of finance may withdraw such designation for purposes of this 31 title, provided, however, any withdrawal of designation or additional 32 designation by the commissioner of finance shall not be effective for 33 purposes of service upon the tax appeals tribunal, unless and until such 34 withdrawal of designation or additional designation is ratified by the 35 president of the tax appeals tribunal. 36 § 11-1317 Penalties and interest. a. (1) Any person failing to pay a 37 tax payable under section 11-1302 of this chapter when due shall be 38 subject to a penalty of fifty per centum of the amount of tax due, but 39 the commissioner of finance, if satisfied that the delay was excusable, 40 may remit all or any part of such penalty. Such penalty shall be paid 41 and disposed of in the same manner as other revenues under this chapter. 42 Unpaid penalties may be enforced in the same manner as the tax imposed 43 by section 11-1302 of this chapter. 44 (2) Any person failing to pay a tax payable under section 11-1302.1 of 45 this chapter when due shall be subject to a penalty of three hundred per 46 centum of the amount of tax due, but the commissioner of finance, if 47 satisfied that the delay was excusable, may remit all or any part of 48 such penalty. Such penalty shall be paid and disposed of in the same 49 manner as other revenues from the tax imposed under section 11-1302.1 of 50 this chapter. Unpaid penalties may be enforced in the same manner as the 51 tax imposed by section 11-1302.1 of this chapter. 52 b. (1) In addition to any other penalty imposed by this section, the 53 commissioner of finance may (a) impose a penalty of not more than one 54 hundred dollars for each two hundred cigarettes or fraction thereof in 55 excess of one thousand cigarettes in unstamped or unlawfully stamped 56 packages in the possession or under the control of any person and (b)S. 8474 839 1 impose a penalty of not more than two hundred dollars for each ten 2 affixed or unaffixed false, altered or counterfeit cigarette tax stamps, 3 imprints or impressions, or fraction thereof, in excess of one hundred 4 affixed or unaffixed false, altered or counterfeit cigarette tax stamps, 5 imprints or impressions in the possession or under the control of any 6 person. Such penalty shall be determined as provided in section 11-1310 7 of this chapter, and may be reviewed only pursuant to such section. Such 8 penalty may be enforced in the same manner as the tax imposed by this 9 chapter. The commissioner of finance, in his or her discretion, may 10 remit all or part of such penalty. Such penalty shall be paid and 11 disposed of in the same manner as other revenues under this chapter. 12 (2) The penalties imposed by this paragraph may be imposed by the 13 commissioner of finance in addition to any other penalty imposed by this 14 section, but in lieu of the penalties imposed by subparagraph (a) of 15 paragraph one of this subdivision: (a) not less than thirty dollars but 16 not more than two hundred dollars for each two hundred cigarettes, or 17 fraction thereof, in excess of one thousand cigarettes but less than or 18 equal to five thousand cigarettes in unstamped or unlawfully stamped 19 packages knowingly in the possession or knowingly under the control of 20 any person; (b) not less than seventy-five dollars but not more than two 21 hundred dollars for each two hundred cigarettes, or fraction thereof, in 22 excess of five thousand cigarettes but less than or equal to twenty 23 thousand cigarettes in unstamped or unlawfully stamped packages knowing- 24 ly in the possession or knowingly under the control of any person; and 25 (c) not less than one hundred dollars but not more than two hundred 26 dollars for each two hundred cigarettes, or fraction thereof, in excess 27 of twenty thousand cigarettes in unstamped or unlawfully stamped pack- 28 ages, knowingly in the possession or knowingly under the control of any 29 person. Such penalty shall be determined as provided in section 11-1310 30 of this chapter, and may be reviewed only pursuant to such section. Such 31 penalty may be enforced in the same manner as the tax imposed by this 32 chapter. The commissioner of finance, in his or her discretion, may 33 remit all or part of such penalty. Such penalty shall be paid and 34 disposed of in the same manner as other revenues under this chapter. 35 c. (1) The possession within the city of more than four hundred ciga- 36 rettes in unstamped or unlawfully stamped packages shall be presumptive 37 evidence that such cigarettes are subject to tax as provided by this 38 chapter. 39 (2) Nothing in this section shall apply to common or contract carriers 40 or warehousemen while engaged in lawfully transporting or storing 41 unstamped packages of cigarettes as merchandise, nor to any employee of 42 such carrier or warehouseman acting within the scope of his or her 43 employment, nor to public officers or employees in the performance of 44 their official duties requiring possession or control of unstamped or 45 unlawfully stamped packages of cigarettes, nor to temporary incidental 46 possession by employees or agents of persons lawfully entitled to 47 possession, nor to persons whose possession is for the purpose of aiding 48 police officers in performing their duties. 49 d. (1) If any amount of tax is not paid on or before the last date 50 prescribed for payment, without regard to any extension of time granted 51 for payment, interest on such amount at the rate set by the commissioner 52 of finance pursuant to paragraph two of this subdivision, or, if no rate 53 is set, at the rate of seven and one-half percent per annum, shall be 54 paid for the period from such last date to the date of payment. In 55 computing the amount of interest to be paid, such interest shall be 56 compounded daily. Interest under this subdivision shall not be paid ifS. 8474 840 1 the amount thereof is less than one dollar. The interest imposed by this 2 subdivision shall be paid and disposed of in the same manner as other 3 revenues from this chapter. Unpaid interest may be enforced in the same 4 manner as the tax imposed by this chapter. 5 (2) (A) The commissioner of finance shall set the rate of interest to 6 be paid pursuant to paragraph one of this subdivision, but if no such 7 rate of interest is set, such rate shall be deemed to be set at seven 8 and one-half percent per annum. Such rate shall be the rate prescribed 9 in subparagraph (B) of this paragraph but shall not be less than seven 10 and one-half percent per annum. Any such rate set by the commissioner of 11 finance shall apply to taxes, or any portion thereof, which remain or 12 become due on or after the date on which such rate becomes effective and 13 shall apply only with respect to interest computed or computable for 14 periods or portions of periods occurring in the period in which such 15 rate is in effect. 16 (B) General rule. The rate of interest set under this subdivision 17 shall be the sum of (i) the federal short-term rate as provided under 18 paragraph three of this subdivision, plus (ii) seven percentage points. 19 (3) Federal short-term rate. For purposes of this subdivision: 20 (A) The federal short-term rate for any month shall be the federal 21 short-term rate determined by the United States secretary of the treas- 22 ury during such month in accordance with subsection (d) of section 23 twelve hundred seventy-four of the internal revenue code for use in 24 connection with section six thousand six hundred twenty-one of the 25 internal revenue code. Any such rate shall be rounded to the nearest 26 full percent, or, if a multiple of one-half of one percent, such rate 27 shall be increased to the next highest full percent. 28 (B) Period during which rate applies. 29 (i) In general. Except as provided in clause (ii) of this subpara- 30 graph, the federal short-term rate for the first month in each calendar 31 quarter shall apply during the first calendar quarter beginning after 32 such month. 33 (ii) Special rule for the month of September, nineteen hundred eight- 34 y-nine. The federal short-term rate for the month of April, nineteen 35 hundred eighty-nine shall apply with respect to setting the rate of 36 interest for the month of September, nineteen hundred eighty-nine. 37 (4) Publication of interest rate. The commissioner of finance shall 38 cause to be published in the City Record, and give other appropriate 39 general notice of, the interest rate to be set under this subdivision no 40 later than twenty days preceding the first day of the calendar quarter 41 during which such interest rate applies. The setting and publication of 42 such interest rate shall not be included within paragraph (a) of subdi- 43 vision five of section one thousand forty-one of the charter of the 44 preceding municipality as it existed January first, nineteen hundred 45 ninety-four relating to the definition of a rule. 46 e. Cross-reference: For criminal penalties, see chapter forty of this 47 title. 48 § 11-1318 Disposition of revenues. a. All revenues resulting from the 49 imposition of the tax under section 11-1302 of this chapter shall be 50 paid into the treasury of the city and shall be credited to and deposit- 51 ed in the general fund of the city, except that, after the payment of 52 refunds with respect to such tax, effective on and after July second, 53 two thousand two, forty-six and one-half percent and, effective on and 54 after April first, two thousand three, forty-six percent of such reven- 55 ues, including taxes, interest and penalties, collected or received 56 shall be paid to the state comptroller.S. 8474 841 1 (b) All revenues resulting from the imposition of the tax under 2 section 11-1302.1 of this chapter during a fiscal year, including any 3 interest and penalties, shall be paid into the treasury of the city in 4 accordance with section one hundred twelve of the public housing law, 5 and shall be payable from the city to the New York city housing authori- 6 ty in such fiscal year. 7 § 11-1319 Construction and enforcement. Section 11-1302 and the 8 provisions of this chapter related thereto shall be construed and 9 enforced in conformity with chapter two hundred thirty-five of the laws 10 of nineteen hundred fifty-two. Section 11-1302.1 and the provisions of 11 this chapter related thereto shall be construed and enforced in conform- 12 ity with subdivision e of section one hundred ten and sections one 13 hundred eleven, one hundred twelve and one hundred thirteen of the 14 public housing law. 15 CHAPTER 14 16 TAX ON TRANSFER OF TAXICAB LICENSES 17 § 11-1401 Definitions. When used in this chapter the following terms 18 shall mean or include: 19 1. "City." The city of Staten Island. 20 2. "Commissioner of finance." The commissioner of finance of the 21 city of Staten Island. 22 3. "Comptroller." The comptroller of the city of Staten Island. 23 4. "Consideration." The total price paid or agreed to be paid for 24 the transfer of a taxicab license or interest therein, whether paid or 25 agreed to be paid in money, property, or any other thing of value, 26 including the cancellation or discharge of an indebtedness or obli- 27 gation, without any deduction whatsoever. 28 5. "Person." An individual, partnership, society, association, 29 joint-stock company, corporation, estate, receiver, trustee, assignee, 30 referee or any other person acting in a fiduciary or representative 31 capacity, whether appointed by a court or otherwise, any combination of 32 individuals, and any other form of unincorporated enterprise owned or 33 conducted by two or more persons. 34 6. "Taxi and limousine commission." The city of Staten Island taxi 35 and limousine commission. 36 7. "Taxicab." Any motor vehicle carrying passengers for hire in the 37 city, duly licensed as a taxicab by the taxi and limousine commission, 38 and permitted to accept hails from passengers in the street. 39 8. "Taxicab license." A license issued by the taxi and limousine 40 commission to operate a taxicab. 41 9. "Taxpayer." Any person subject to tax under this chapter. 42 10. "Transfer." Any transfer of interest, whether or not such inter- 43 est constitutes title, or possession, or both, exchange or barter, 44 rental, lease, or license to use, conditional or otherwise, in any 45 manner or by any means whatsoever for a consideration, or any agreement 46 therefor. 47 11. "Transferee." The person to whom a taxicab license or interest 48 therein is transferred, in a transfer as defined in subdivision ten of 49 this section. 50 12. "Transferor." The person who transfers a taxicab license or 51 interest pursuant to this chapter, in a transfer as defined in subdivi- 52 sion ten of this section. 53 13. "Tax appeals tribunal." The tax appeals tribunal established by 54 section one hundred sixty-eight of the charter of the preceding munici- 55 pality as it existed January first, nineteen hundred ninety-four.S. 8474 842 1 § 11-1402 Imposition of tax. a. On and after March twenty-first, 2 two thousand seventeen, there is hereby imposed and there shall be paid 3 a tax on each transfer of a taxicab license or interest therein, at the 4 rate of one-half percent of the consideration given for such transfer. 5 b. Where there is a transfer of the economic interest in a taxicab 6 license or interest therein, effected by the transfer of shares of stock 7 of a corporation which hold such taxicab license or interest therein or 8 by the transfer of an interest or interests in a partnership or associ- 9 ation which holds such taxicab license or interest therein, such trans- 10 fer of shares of stock or of an interest or interests in a partnership 11 or association shall be treated as a transfer of the taxicab license or 12 interest therein, and shall be subject to the tax imposed by subdivision 13 a of this section. 14 c. Notwithstanding any other provision of this chapter, the tax 15 imposed hereby shall not apply to a transfer made pursuant to a bona 16 fide written contract or agreement made and executed prior to July 17 first, nineteen hundred eighty, provided such contract or agreement is 18 registered with the taxi and limousine commission prior to July first, 19 nineteen hundred eighty, and provided further that one or more payments 20 were made pursuant to such contract or agreement on or before June twen- 21 tieth, nineteen hundred eighty. 22 d. Where a taxicab or any other property is transferred to a trans- 23 feree in conjunction with the transfer of a taxicab license or interest 24 therein, the tax imposed by this section shall be computed on the total 25 consideration for the transfer of such license or interest therein and 26 the taxicab or other property so transferred, less the fair market value 27 of such taxicab or other property. 28 e. The tax imposed by this chapter shall be in addition to any and 29 all other taxes. 30 § 11-1403 Payment of tax. The tax imposed by this chapter shall be 31 paid by the transferee to the taxi and limousine commission, as agent of 32 the commissioner of finance, at the time of approval of such transfer by 33 the taxi and limousine commission, but in no event later than thirty 34 days following the transfer. The transferor shall also be liable for the 35 payment of such tax at such time in the event that the amount of tax due 36 is not paid by the transferee. Notwithstanding any other provision of 37 law to the contrary, no transfer of a taxicab license or interest there- 38 in shall be approved or effective until the tax imposed by this chapter 39 has been paid. All moneys received as such payments by the taxi and 40 limousine commission during any day shall be transmitted to the commis- 41 sioner of finance at the close of business on such day or at such other 42 time as the commissioner of finance may require. 43 § 11-1404 Returns. a. A joint return shall be filed by both the 44 transferee and the transferor. Such return shall be filed at the time of 45 payment of any tax imposed pursuant to this chapter, and such filing 46 shall be accomplished by delivering the return to the taxi and limousine 47 commission for transmittal to the commissioner of finance. The commis- 48 sioner of finance shall prescribe the form of the return and the infor- 49 mation which it shall contain. The return shall be signed under oath by 50 both the transferee and the transferor. Where either the transferee or 51 the transferor has failed to sign the return, it shall be accepted as a 52 return, but the party who has failed to sign the return or file a sepa- 53 rate return shall be subject to the penalties applicable to a person who 54 has failed to file a return, and the period of limitations for assess- 55 ment of tax or of additional tax shall not apply to such party.S. 8474 843 1 b. Returns shall be preserved for three years and thereafter until the 2 commissioner of finance permits them to be destroyed. 3 c. The commissioner of finance may require amended returns to be filed 4 within twenty days after notice and to contain the information specified 5 in the notice. 6 d. If a return required by this chapter is not filed, or if a return, 7 when filed, is incorrect or insufficient on its face, the commissioner 8 of finance shall take the necessary steps to enforce the filing of such 9 a return or of a corrected return. 10 § 11-1405 Exemptions. a. The tax imposed under this chapter shall not 11 be imposed on any transaction by or with the following: 12 1. The state of New York, or any of its agencies, instrumentalities, 13 public corporations, including a public corporation created pursuant to 14 agreement or compact with another state or Canada, or political subdivi- 15 sions where it is the purchaser, user or consumer; 16 2. The United States of America, and any of its agencies and instru- 17 mentalities insofar as it is immune from taxation where it is the 18 purchaser, user or consumer; 19 3. The United Nations or other international organizations of which 20 the United States of America is a member; and 21 4. Any corporation, or association, or trust, or community chest, fund 22 or foundation, organized and operated exclusively for religious, chari- 23 table, or educational purposes, or for the prevention of cruelty to 24 children or animals, and no part of the net earnings of which inures to 25 the benefit of any private shareholder or individual, and no substantial 26 part of the activities of which is carrying on propaganda, or otherwise 27 attempting to influence legislation; provided, however, that nothing in 28 this paragraph shall include an organization operated for the primary 29 purpose of carrying on a trade or business for profit, whether or not 30 all of its profits are payable to one or more organizations described in 31 this subdivision. 32 b. The tax imposed by this chapter shall not apply to the transfer of 33 a taxicab license or interest therein by means of a lease, license or 34 other rental arrangement, where the term of such lease, license or other 35 rental arrangement, including the maximum period for which it can be 36 extended or renewed, does not exceed six months. 37 § 11-1406 Determination of tax. If a return required by this chapter 38 is not filed, or if a return when filed is incorrect or insufficient, 39 the amount of tax due shall be determined by the commissioner of finance 40 from external indices and such other information as may be obtainable. 41 Notice of such determination shall be given to the person liable for the 42 tax. Such determination shall finally and irrevocably fix the tax unless 43 the person against whom it is assessed, within ninety days after the 44 giving of notice of such determination, or, if the commissioner of 45 finance has established a conciliation procedure pursuant to section 46 11-124 of this title and the taxpayer has requested a conciliation 47 conference in accordance therewith, within ninety days from the mailing 48 of a conciliation decision or the date of the commissioner's confirma- 49 tion of the discontinuance of the conciliation proceeding, both (1) 50 serves a petition upon the commissioner of finance and (2) files a peti- 51 tion with the tax appeals tribunal for a hearing, or unless the commis- 52 sioner of finance of his or her own motion shall redetermine the same. 53 Such hearing and any appeal to the tax appeals tribunal sitting en banc 54 from the decision rendered in such hearing shall be conducted in the 55 manner and subject to the requirements prescribed by the tax appeals 56 tribunal pursuant to sections one hundred sixty-eight through oneS. 8474 844 1 hundred seventy-two of the charter of the preceding municipality as it 2 existed January first, nineteen hundred ninety-four. After such hearing 3 the tax appeals tribunal shall give notice of its decision to the person 4 against whom the tax is assessed and to the commissioner of finance. A 5 decision of the tax appeals tribunal sitting en banc shall be reviewable 6 for error, illegality or unconstitutionality or any other reason whatso- 7 ever by a proceeding under article seventy-eight of the civil practice 8 law and rules if application therefor is made to the supreme court by 9 the person against whom the tax was assessed within four months after 10 the giving of the notice of such tax appeals tribunal decision. A 11 proceeding under article seventy-eight of the civil practice law and 12 rules shall not be instituted by a taxpayer unless: (a) the amount of 13 any tax sought to be reviewed, with penalties and interest thereon, if 14 any, shall be first deposited with the commissioner of finance and there 15 shall be filed with the commissioner of finance an undertaking, issued 16 by a surety company authorized to transact business in this state and 17 approved by the superintendent of insurance of this state as to solvency 18 and responsibility, in such amount and with such sureties as a justice 19 of the supreme court shall approve, to the effect that if such proceed- 20 ing be dismissed or the tax confirmed, the taxpayer will pay all costs 21 and charges which may accrue in the prosecution of the proceeding; or 22 (b) at the option of the taxpayer such undertaking filed with the 23 commissioner of finance may be in a sum sufficient to cover the taxes, 24 penalties and interest thereon stated in such decision plus the costs 25 and charges which may accrue against it in the prosecution of the 26 proceeding, in which event the taxpayer shall not be required to deposit 27 such taxes, penalties and interest as a condition precedent to the 28 application. 29 § 11-1407 Refunds. a. In the manner provided in this section the 30 commissioner of finance shall refund or credit, without interest, any 31 tax, penalty or interest erroneously, illegally or unconstitutionally 32 collected or paid if application to the commissioner of finance for such 33 refund shall be made within one year from the payment thereof. Whenever 34 a refund is made or denied by the commissioner of finance, the commis- 35 sioner shall state his or her reason therefor and give notice thereof to 36 the taxpayer in writing. Such application may be made by the transferee 37 or transferor who has actually paid the tax. The commissioner of 38 finance may, in lieu of any refund required to be made, allow credit 39 therefor on payments due from the applicant. 40 b. Any determination of the commissioner of finance denying a refund 41 or credit pursuant to subdivision a of this section shall be final and 42 irrevocable unless the applicant for such refund or credit, within nine- 43 ty days from the mailing of notice of such determination, or, if the 44 commissioner of finance has established a conciliation procedure pursu- 45 ant to section 11-124 of this title and the applicant has requested a 46 conciliation conference in accordance therewith, within ninety days from 47 the mailing of a conciliation decision or the date of the commissioner's 48 confirmation of the discontinuance of the conciliation proceeding, both 49 (1) serves a petition upon the commissioner of finance and (2) files a 50 petition with the tax appeals tribunal for a hearing. Such petition for 51 a refund or credit, made pursuant to this section, shall be deemed an 52 application for a revision of any tax, penalty or interest complained 53 of. Such hearing and any appeal to the tax appeals tribunal sitting en 54 banc from the decision rendered in such hearing shall be conducted in 55 the manner and subject to the requirements prescribed by the tax appeals 56 tribunal pursuant to sections one hundred sixty-eight through oneS. 8474 845 1 hundred seventy-two of the charter of the preceding municipality as it 2 existed January first, nineteen hundred ninety-four. After such hearing, 3 the tax appeals tribunal shall give notice of its decision to the appli- 4 cant and to the commissioner of finance. The applicant shall be entitled 5 to review a decision of the tax appeals tribunal sitting en banc by a 6 proceeding pursuant to article seventy-eight of the civil practice law 7 and rules, provided such proceeding is instituted within four months 8 after the giving of notice of such decision, and provided, in the case 9 of an application by a taxpayer, that a final determination of tax due 10 was not previously made. Such a proceeding shall not be instituted by a 11 taxpayer unless an undertaking is filed with the commissioner of finance 12 in such amount and with such sureties as a justice of the supreme court 13 shall approve to the effect that if such proceeding be dismissed or the 14 tax confirmed, the taxpayer will pay all costs and charges which may 15 accrue in the prosecution of such proceeding. 16 c. A person shall not be entitled to a revision, refund or credit 17 under this section of a tax, or penalty which had been determined to be 18 due pursuant to the provisions of section 11-1406 of this chapter where 19 such person has had a hearing or an opportunity for a hearing, as 20 provided in said section, or has failed to avail himself or herself of 21 the remedies therein provided. No refund or credit shall be made of a 22 tax, interest or penalty paid after a determination by the commissioner 23 of finance made pursuant to section 11-1406 of this chapter unless it be 24 found that such determination was erroneous, illegal or unconstitutional 25 or otherwise improper, by the tax appeals tribunal after a hearing, or 26 on the commissioner's own motion, or, is such tax appeals tribunal 27 affirms in whole or in part the determination of the commissioner of 28 finance, in a proceeding under article seventy-eight of the civil prac- 29 tice law and rules, pursuant to the provisions of said section, in which 30 event refund or credit without interest shall be made of the tax, inter- 31 est or penalty found to be overpaid. 32 § 11-1408 Reserves. In cases where the transferee or transferor has 33 applied for a refund and has instituted a proceeding under article 34 seventy-eight of the civil practice law and rules to review a determi- 35 nation adverse to the transferee or transferor on his or her application 36 for refund, the comptroller shall set up appropriate reserves to meet 37 any decisions adverse to the city. 38 § 11-1409 Remedies exclusive. The remedies provided by sections 39 11-1406 and 11-1407 of this chapter shall be the exclusive remedies 40 available to any person for the review of tax liability imposed by this 41 chapter; and no determination or proposed determination of tax or deter- 42 mination on any application for refund by the commissioner of finance, 43 nor any decision by the tax appeals tribunal or any of its administra- 44 tive law judges shall be enjoined or reviewed by an action for declara- 45 tory judgment, an action for money had and received or by any action or 46 proceeding other than, in the case of a decision by the tax appeals 47 tribunal sitting en banc, a proceeding in the nature of a certiorari 48 proceeding under article seventy-eight of the civil practice law and 49 rules; provided, however, that a taxpayer may proceed by declaratory 50 judgment if the taxpayer institutes suit within thirty days after a 51 deficiency assessment is made and pays the amount of the deficiency 52 assessment to the commissioner of finance prior to the institution of 53 such suit and posts a bond for costs as provided in section 11-1406 of 54 this chapter. 55 § 11-1410 Proceedings to recover tax. a. Whenever any transferee or 56 transferor shall fail to pay any tax, penalty or interest imposed byS. 8474 846 1 this chapter as herein provided, the corporation counsel shall, upon the 2 request of the commissioner of finance bring or cause to be brought an 3 action to enforce the payment of the same on behalf of the city of 4 Staten Island in any court of the state of New York or of any other 5 state or of the United States. If, however, the commissioner of finance 6 in his or her discretion believes that any such transferee or transferor 7 subject to the provisions of this chapter is about to cease business, 8 leave the state or remove or dissipate the assets out of which the tax 9 or penalty might be satisfied, and that any such tax or penalty will not 10 be paid when due, the commissioner may declare such tax or penalty to be 11 immediately due and payable and may issue a warrant immediately. 12 b. As an additional or alternate remedy, the commissioner of finance 13 may issue a warrant, directed to the city sheriff commanding the sheriff 14 to levy upon and sell the real and personal property of the transferee 15 or transferor or other person liable for the tax which may be found 16 within the city, for the payment of the amount thereof, with any penalty 17 and interest, and the cost of executing the warrant, and to return such 18 warrant to the commissioner of finance and to pay to the commissioner 19 the money collected by virtue thereof within sixty days after the 20 receipt of such warrant. The city sheriff shall within five days after 21 the receipt of the warrant file with the county clerk a copy thereof, 22 and thereupon such clerk shall enter in the judgment docket the name of 23 the person mentioned in the warrant and the amount of the tax, penalty 24 and interest for which the warrant is issued and the date when such copy 25 is filed. Thereupon the amount of such warrant so docketed shall become 26 a lien upon the title to and the interest in real and personal property 27 of the person against whom the warrant is issued. The city sheriff shall 28 then proceed upon the warrant in the same manner, and with like effect, 29 as that provided by law in respect to executions issued against property 30 upon judgments of a court of record and for services in executing the 31 warrant the sheriff shall be entitled to the same fees, which he or she 32 may collect in the same manner. In the discretion of the commissioner of 33 finance a warrant of like terms, force and effect may be issued and 34 directed to an officer or employee of the department of finance, and in 35 the execution thereof such officer or employee shall have all the powers 36 conferred by law upon sheriffs, but shall be entitled to no fee or 37 compensation in excess of the actual expenses paid in the performance of 38 such duty. If a warrant is returned not satisfied in full, the commis- 39 sioner of finance may from time to time issue new warrants and shall 40 also have the same remedies to enforce the amount due thereunder as if 41 the city had recovered judgment therefor and execution thereon had been 42 returned unsatisfied. 43 c. Whenever there is made a sale, transfer or assignment in bulk or 44 any part of the whole of a stock of merchandise or of fixtures, or 45 merchandise and of fixtures pertaining to the conducting of the business 46 of the seller, transferor or assignor, otherwise than in the ordinary 47 course of trade and in the regular prosecution of said business, the 48 purchaser, transferee or assignee shall at least ten days before taking 49 possession of such merchandise, fixtures, or merchandise and fixtures, 50 or paying therefor, notify the commissioner of finance by registered 51 mail of the proposed sale and of the price, terms and conditions thereof 52 whether or not the seller, transferor or assignor, has represented to, 53 or informed the purchaser, transferee or assignee that it owes any tax 54 pursuant to this chapter and whether or not the purchaser, transferee or 55 assignee has knowledge that such taxes are owing, and whether any such 56 taxes are in fact owing.S. 8474 847 1 d. Whenever, the purchaser, transferee or assignee shall fail to give 2 notice to the commissioner of finance as required by subdivision c of 3 this section, or whenever the commissioner of finance shall inform the 4 purchaser, transferee or assignee that a possible claim for such tax or 5 taxes exists, any sums of money, property or choses in action, or other 6 consideration, which the purchaser, transferee or assignee is required 7 to transfer over to the seller or assignor shall be subject to a first 8 priority right and lien for any such taxes theretofore or thereafter 9 determined to be due from the seller, transferor or assignor to the 10 city, and the purchaser, transferee or assignee is forbidden to transfer 11 to the seller, transferor or assignor any such sums of money, property 12 or choses in action to the extent of the amount of the city's claim. For 13 failure to comply with the provisions of this subdivision, the purchas- 14 er, transferee or assignee shall be personally liable for the payment to 15 the city of any such taxes theretofore or thereafter determined to be 16 due to the city from the seller, transferor or assignor, and such 17 liability may be assessed and enforced in the same manner as the liabil- 18 ity for tax under this chapter. 19 e. The commissioner of finance, if he or she finds that the interests 20 of the city will not thereby be jeopardized, and upon such conditions as 21 the commissioner of finance may require, may release any property from 22 the lien of any warrant or vacate such warrant for unpaid taxes, addi- 23 tions to tax, penalties and interest filed pursuant to subdivision b of 24 this section, and such release or vacating of the warrant may be 25 recorded in the office of any recording officer in which such warrant 26 has been filed. The clerk shall thereupon cancel and discharge as of the 27 original date of docketing the vacated warrant. 28 § 11-1411 General powers of the commissioner of finance. In addition 29 to the powers granted to the commissioner of finance in this chapter, he 30 or she is hereby authorized and empowered: 31 1. To make, adopt and amend rules and regulations appropriate to the 32 carrying out of this chapter and the purposes thereof; 33 2. To extend, for cause shown, the time for filing any return for a 34 period not exceeding ninety days; and to compromise disputed claims in 35 connection with the taxes imposed under this chapter; 36 3. To request information from the taxi and limousine commission, the 37 tax commission of the state of New York or the treasury department of 38 the United States relative to any person; and to afford returns, reports 39 and other information to such taxi and limousine commission, tax commis- 40 sion or treasury department relative to any person, any other provision 41 of this chapter to the contrary notwithstanding; 42 4. To delegate his or her functions hereunder to a deputy commissioner 43 of finance or any employee or employees of the department of finance; 44 5. To prescribe the methods for determining the consideration subject 45 to the tax, and if there is a transfer of a taxicab or other property in 46 conjunction with the transfer of a taxicab license or interest therein, 47 to prescribe rules and methods for determining the fair market value of 48 such taxicab or other property; 49 6. To require any transferee or transferor to keep such records, and 50 for such lengths of time as may be required for the proper adminis- 51 tration of this chapter and to furnish such records to the commissioner 52 of finance or the taxi and limousine commission upon request; 53 7. To assess, determine, revise and adjust the taxes imposed under 54 this chapter. 55 § 11-1412 Administration of oaths and compelling testimony. a. The 56 commissioner of finance, the employees or agents duly designated by himS. 8474 848 1 or her, the tax appeals tribunal and any of its duly designated and 2 authorized employees or agents shall have power to administer oaths and 3 take affidavits in relation to any matter or proceeding in the exercise 4 of their powers and duties under this chapter. The commissioner of 5 finance and the tax appeals tribunal shall have power to subpoena and 6 require the attendance of witnesses and the production of books, papers 7 and documents to secure information pertinent to the performance of the 8 duties of the commissioner or of the tax appeals tribunal hereunder and 9 of the enforcement of this chapter and to examine them in relation ther- 10 eto, and to issue commissions for the examination of witnesses who are 11 out of the state or unable to attend before the commissioner or the tax 12 appeals tribunal or excused from attendance. 13 b. A justice of the supreme court either in court or at chambers shall 14 have power summarily to enforce by proper proceedings the attendance and 15 testimony of witnesses and the production and examination of books, 16 papers and documents called for by the subpoena of the commissioner of 17 finance or the tax appeals tribunal under this chapter. 18 c. Cross-reference; criminal penalties. For failure to obey subpoenas 19 or for testifying falsely, see section 11-4007 of this title; for 20 supplying false or fraudulent information, see section 11-4009 of this 21 title. 22 d. The officers who serve the summons or subpoena of the commissioner 23 of finance or the tax appeals tribunal and witnesses attending in 24 response thereto shall be entitled to the same fees as are allowed to 25 officers and witnesses in civil cases in courts of record, except as 26 herein otherwise provided. Such officers shall be the city sheriff and 27 his or her duly appointed deputies or any officers or employees of the 28 department of finance or the tax appeals tribunal, designated to serve 29 such process. 30 § 11-1413 Interest and penalties. (a) Interest on underpayments. If 31 any amount of tax is not paid on or before the last date prescribed for 32 payment, without regard to any extension of time granted for payment, 33 interest on such amount at the rate set by the commissioner of finance 34 pursuant to subdivision (g) of this section, or, if no rate is set, at 35 the rate of seven and one-half percent per annum, shall be paid for the 36 period from such last date to the date of payment. In computing the 37 amount of interest to be paid, such interest shall be compounded daily. 38 Interest under this subdivision shall not be paid if the amount thereof 39 is less than one dollar. 40 (b) (1) Failure to file return. (A) In case of failure to file a 41 return under this chapter on or before the prescribed date, determined 42 with regard to any extension of time for filing, unless it is shown that 43 such failure is due to reasonable cause and not due to willful neglect, 44 there shall be added to the amount required to be shown as tax on such 45 return five percent of the amount of such tax if the failure is for not 46 more than one month, with an additional five percent for each additional 47 month or fraction thereof during which such failure continues, not 48 exceeding twenty-five percent in the aggregate. 49 (B) In the case of a failure to file a return of tax within sixty days 50 of the date prescribed for filing of such return, determined with regard 51 to any extension of time for filing, unless it is shown that such fail- 52 ure is due to reasonable cause and not due to willful neglect, the addi- 53 tion to tax under subparagraph (A) of this paragraph shall not be less 54 than the lesser of one hundred dollars or one hundred percent of the 55 amount required to be shown as tax on such return.S. 8474 849 1 (C) For purposes of this paragraph, the amount of tax required to be 2 shown on the return shall be reduced by the amount of any part of the 3 tax which is paid on or before the date prescribed for payment of the 4 tax and by the amount of any credit against the tax which may be claimed 5 upon the return. 6 (2) Failure to pay tax shown on return. In case of failure to pay the 7 amount shown as tax on a return required to be filed under this chapter 8 on or before the prescribed date, determined with regard to any exten- 9 sion of time for payment, unless it is shown that such failure is due to 10 reasonable cause and not due to willful neglect, there shall be added to 11 the amount shown as tax on such return one-half of one percent of the 12 amount of such tax if the failure is not for more than one month, with 13 an additional one-half of one percent for each additional month or frac- 14 tion thereof during which such failure continues, not exceeding twenty- 15 five percent in the aggregate. For the purpose of computing the addition 16 for any month the amount of tax shown on the return shall be reduced by 17 the amount of any part of the tax which is paid on or before the begin- 18 ning of such month and by the amount of any credit against the tax which 19 may be claimed upon the return. If the amount of tax required to be 20 shown on a return is less than the amount shown as tax on such return, 21 this paragraph shall be applied by substituting such lower amount. 22 (3) Failure to pay tax required to be shown on return. In case of 23 failure to pay any amount in respect of any tax required to be shown on 24 a return required to be filed under this chapter which is not so shown, 25 including a determination made pursuant to section 11-1406 of this chap- 26 ter, within ten days of the date of a notice and demand therefor, unless 27 it is shown that such failure is due to reasonable cause and not due to 28 willful neglect, there shall be added to the amount of tax stated in 29 such notice and demand one-half of one percent of such tax if the fail- 30 ure is not for more than one month, with an additional one-half of one 31 percent for each additional month or fraction thereof during which such 32 failure continues, not exceeding twenty-five percent in the aggregate. 33 For the purpose of computing the addition for any month, the amount of 34 tax stated in the notice and demand shall be reduced by the amount of 35 any part of the tax which is paid before the beginning of such month. 36 (4) Limitations on additions. 37 (A) With respect to any return, the amount of the addition under para- 38 graph one of this subdivision shall be reduced by the amount of the 39 addition under paragraph two of this subdivision for any month to which 40 an addition applies under both paragraphs one and two. In any case 41 described in subparagraph (B) of paragraph one of this subdivision, the 42 amount of the addition under such paragraph one shall not be reduced 43 below the amount provided in such subparagraph. 44 (B) With respect to any return, the maximum amount of the addition 45 permitted under paragraph three of this subdivision shall be reduced by 46 the amount of the addition under paragraph one of this subdivision, 47 determined without regard to subparagraph (B) of such paragraph one, 48 which is attributable to the tax for which the notice and demand is made 49 and which is not paid within ten days of such notice and demand. 50 (c) Underpayment due to negligence. (1) If any part of an underpay- 51 ment of tax is due to negligence or intentional disregard of this chap- 52 ter or any rules or regulations hereunder, but without intent to 53 defraud, there shall be added to the tax a penalty equal to five percent 54 of the underpayment. 55 (2) There shall be added to the tax, in addition to the amount deter- 56 mined under paragraph one of this subdivision, an amount equal to fiftyS. 8474 850 1 percent of the interest payable under subdivision (a) of this section 2 with respect to the portion of the underpayment described in such para- 3 graph one which is attributable to the negligence or intentional disre- 4 gard referred to in such paragraph one, for the period beginning on the 5 last date prescribed by law for payment of such underpayment, determined 6 without regard to any extension, and ending on the date of the assess- 7 ment of the tax, or, if earlier, the date of the payment of the tax. 8 (d) Underpayment due to fraud. (1) If any part of an underpayment of 9 tax is due to fraud, there shall be added to the tax a penalty equal to 10 fifty percent of the underpayment. 11 (2) There shall be added to the tax, in addition to the penalty deter- 12 mined under paragraph one of this subdivision, an amount equal to fifty 13 percent of the interest payable under subdivision (a) of this section 14 with respect to the portion of the underpayment described in such para- 15 graph one which is attributable to fraud, for the period beginning on 16 the last day prescribed by law for payment of such underpayment, deter- 17 mined without regard to any extension, and ending on the date of the 18 assessment of the tax, or, if earlier, the date of the payment of the 19 tax. 20 (3) The penalty under this subdivision shall be in lieu of any other 21 addition to tax imposed by subdivision (b) or (c) of this section. 22 (e) Additional penalty. Any person who, with fraudulent intent, shall 23 fail to pay any tax imposed by this chapter, or to make, render, sign or 24 certify any return, or to supply any information within the time 25 required by or under this chapter, shall be liable for a penalty of not 26 more than one thousand dollars, in addition to any other amounts 27 required under this chapter to be imposed, assessed and collected by the 28 commissioner of finance. The commissioner of finance shall have the 29 power, in his or her discretion, to waive, reduce or compromise any 30 penalty under this subdivision. 31 (f) The interest and penalties imposed by this section shall be paid 32 and disposed of in the same manner as other revenues from this chapter. 33 Unpaid interest and penalties may be enforced in the same manner as the 34 tax imposed by this chapter. 35 (g)(1) Authority to set interest rates. The commissioner of finance 36 shall set the rate of interest to be paid pursuant to subdivision (a) of 37 this section, but if no such rate of interest is set, such rate shall be 38 deemed to be set at seven and one-half percent per annum. Such rate 39 shall be the rate prescribed in paragraph two of this subdivision but 40 shall not be less than seven and one-half percent per annum. Any such 41 rate set by the commissioner of finance shall apply to taxes, or any 42 portion thereof, which remain or become due on or after the date on 43 which such rate becomes effective and shall apply only with respect to 44 interest computed or computable for periods or portions of periods 45 occurring in the period in which such rate is in effect. 46 (2) General rule. The rate of interest set under this subdivision 47 shall be the sum of (i) the federal short-term rate as provided under 48 paragraph three of this subdivision, plus (ii) seven percentage points. 49 (3) Federal short-term rate. For purposes of this subdivision: 50 (A) The federal short-term rate for any month shall be the federal 51 short-term rate determined by the United States secretary of the treas- 52 ury during such month in accordance with subsection (d) of section 53 twelve hundred seventy-four of the internal revenue code for use in 54 connection with section six thousand six hundred twenty-one of the 55 internal revenue code. Any such rate shall be rounded to the nearestS. 8474 851 1 full percent, or, if a multiple of one-half of one percent, such rate 2 shall be increased to the next highest full percent. 3 (B) Period during which rate applies. 4 (i) In general. Except as provided in clause (ii) of this subpara- 5 graph, the federal short-term rate for the first month in each calendar 6 quarter shall apply during the first calendar quarter beginning after 7 such month. 8 (ii) Special rule for the month of September, nineteen hundred eight- 9 y-nine. The federal short-term rate for the month of April, nineteen 10 hundred eighty-nine shall apply with respect to setting the rate of 11 interest for the month of September, nineteen hundred eighty-nine. 12 (4) Publication of interest rate. The commissioner of finance shall 13 cause to be published in the City Record, and give other appropriate 14 general notice of, the interest rate to be set under this subdivision no 15 later than twenty days preceding the first day of the calendar quarter 16 during which such interest rate applies. The setting and publication of 17 such interest rate shall not be included within paragraph (a) of subdi- 18 vision five of section one thousand forty-one of the charter of the 19 preceding municipality as it existed January first, nineteen hundred 20 ninety-four relating to the definition of a rule. 21 (h) Miscellaneous. (1) The certificate of the commissioner of finance 22 to the effect that a tax has not been paid or that information has not 23 been supplied pursuant to the provisions of this chapter shall be 24 presumptive evidence thereof. 25 (2) Cross-reference: For criminal penalties, see chapter forty of this 26 title. 27 § 11-1414 Returns to be secret. a. Except in accordance with proper 28 judicial order or as otherwise provided by law, it shall be unlawful for 29 the commissioner of finance, the chairperson of the taxi and limousine 30 commission, the tax appeals tribunal or any officer or employee of the 31 department of finance or taxi and limousine commission or the tax 32 appeals tribunal, to divulge or make known in any manner any information 33 contained in or relating to any return provided for by this chapter. The 34 officers charged with the custody of such returns shall not be required 35 to produce any of them or evidence of anything contained in them in any 36 action or proceeding in any court, except on behalf of the commissioner 37 of finance in an action or proceeding under the provisions of this chap- 38 ter, or on behalf of any party to an action or proceeding under the 39 provisions of this chapter when the returns or facts shown thereby are 40 directly involved in such action or proceeding, in either of which 41 events the court may require the production of, and may admit in 42 evidence, so much of said returns or of the facts shown thereby, as are 43 pertinent to the action or proceeding and no more. Nothing in this 44 section shall be construed to prohibit the delivery to a transferee or 45 transferor or to the duly authorized representative of either of them of 46 a certified copy of any return filed in connection with the tax imposed 47 by this chapter; nor to prohibit the delivery of such a certified copy 48 of such return or of any information contained in or relating thereto to 49 the United States of America or any department thereof, the state of New 50 York or any department thereof, the city of Staten Island or any depart- 51 ment thereof provided the same is required for official business; nor to 52 prohibit the inspection for official business of such returns by the 53 chairperson of the taxi and limousine commission, the corporation coun- 54 sel or other legal representatives of the city or by the district attor- 55 ney of Richmond county; nor to prohibit the publication of statistics soS. 8474 852 1 classified as to prevent the identification of particular returns or 2 items thereof. 3 b. (1) Any officer or employee of the city who willfully violates the 4 provisions of subdivision a of this section shall be dismissed from 5 office and be incapable of holding any public office in this city for a 6 period of five years thereafter. 7 (2) Cross-reference: For criminal penalties, see chapter forty of this 8 title. 9 c. This section shall be deemed a state statute for purposes of para- 10 graph (a) of subdivision two of section eighty-seven of the public offi- 11 cers law. 12 d. Notwithstanding anything in subdivision a of this section to the 13 contrary, if a taxpayer has petitioned the tax appeals tribunal for 14 administrative review as provided in section one hundred seventy of the 15 charter of the preceding municipality as it existed January first, nine- 16 teen hundred ninety-four, the commissioner of finance shall be author- 17 ized to present to the tribunal any report or return of such taxpayer, 18 or any information contained therein or relating thereto, which may be 19 material or relevant to the proceeding before the tribunal. The tax 20 appeals tribunal shall be authorized to publish a copy or a summary of 21 any decision rendered pursuant to section one hundred seventy-one of the 22 charter of the preceding municipality as it existed January first, nine- 23 teen hundred ninety-four. 24 § 11-1415 Notices and limitations of time. a. Any notice authorized 25 or required under the provisions of this chapter may be given by mailing 26 the same to the person for whom it is intended in a postpaid envelope 27 addressed to such person at the address given in the last return filed 28 by such person pursuant to the provisions of this chapter, in any appli- 29 cation made by such person, or in the records maintained by the taxi and 30 limousine commission, or, if no return has been filed or application 31 made or address found in the records of the taxi and limousine commis- 32 sion, then to such address as may be obtainable. The mailing of such 33 notice shall be presumptive evidence of the receipt of the same by the 34 person to whom addressed. Any period of time which is determined accord- 35 ing to the provisions of this chapter by the giving of notice shall 36 commence to run from the date of mailing of such notice. 37 b. The provisions of the civil practice law and rules or any other law 38 relative to limitations of time for the enforcement of a civil remedy 39 shall not apply to any proceeding or action taken by the city to levy, 40 appraise, assess, determine or enforce the collection of any tax or 41 penalty provided by this chapter. However, except in the case of a 42 wilfully false or fraudulent return with intent to evade the tax, no 43 assessment of additional tax shall be made after the expiration of more 44 than three years from the date of the filing of a return; provided, 45 however, that where no return has been filed as provided by law the tax 46 may be assessed at any time. 47 c. Where, before the expiration of the period prescribed herein for 48 the assessment of an additional tax, a taxpayer has consented in writing 49 that such period be extended, the amount of such additional tax due may 50 be determined at any time within such extended period. The period so 51 extended may be further extended by subsequent consents in writing made 52 before the expiration of the extended period. 53 d. If any return, claim, statement, notice, application, or other 54 document required to be filed, or any payment required to be made, with- 55 in a prescribed period or on or before a prescribed date under authority 56 of any provision of this chapter is, after such period or such date,S. 8474 853 1 delivered by United States mail to the commissioner of finance, the tax 2 appeals tribunal, bureau, office, officer or person with which or with 3 whom such document is required to be filed, or to which or to whom such 4 payment is required to be made, the date of the United States postmark 5 stamped on the envelope shall be deemed to be the date of delivery. This 6 subdivision shall apply only if the postmark date falls within the 7 prescribed period or on or before the prescribed date for the filing of 8 such document, or for making the payment, including any extension grant- 9 ed for such filing or payment, and only if such document or payment was 10 deposited in the mail, postage prepaid, properly addressed to the 11 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 12 cer or person with which or with whom the document is required to be 13 filed or to which or to whom such payment is required to be made. If any 14 document is sent by United States registered mail, such registration 15 shall be prima facie evidence that such document was delivered to the 16 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 17 cer or person to which or to whom addressed, and the date of registra- 18 tion shall be deemed the postmark date. The commissioner of finance and, 19 where relevant, the tax appeals tribunal are authorized to provide by 20 regulation the extent to which such provisions with respect to prima 21 facie evidence of delivery and the postmark date shall apply to certi- 22 fied mail. Except as provided in subdivision f of this section, this 23 subdivision shall apply in the case of postmarks not made by the United 24 States postal service only if and to the extent provided by regulation 25 of the commissioner of finance or, where relevant, the tax appeals 26 tribunal. 27 e. When the last day prescribed under authority of this chapter, 28 including any extension of time, for performing any act falls on a 29 Saturday, Sunday or legal holiday in the state, the performance of such 30 act shall be considered timely if it is performed on the next succeeding 31 day which is not a Saturday, Sunday or legal holiday. 32 f. (1) Any reference in subdivision d of this section to the United 33 States mail shall be treated as including a reference to any delivery 34 service designated by the secretary of the treasury of the United States 35 pursuant to section seventy-five hundred two of the internal revenue 36 code and any reference in subdivision d of this section to a United 37 States postmark shall be treated as including a reference to any date 38 recorded or marked in the manner described in section seventy-five 39 hundred two of the internal revenue code by a designated delivery 40 service. If the commissioner of finance finds that any delivery service 41 designated by such secretary is inadequate for the needs of the city, 42 the commissioner of finance may withdraw such designation for purposes 43 of this title. The commissioner of finance may also designate additional 44 delivery services meeting the criteria of section seventy-five hundred 45 two of the internal revenue code for purposes of this title, or may 46 withdraw any such designation if the commissioner of finance finds that 47 a delivery service so designated is inadequate for the needs of the 48 city. Any reference in subdivision d of this section to the United 49 States mail shall be treated as including a reference to any delivery 50 service designated by the commissioner of finance and any reference in 51 subdivision d of this section to a United States postmark shall be 52 treated as including a reference to any date recorded or marked in the 53 manner described in section seventy-five hundred two of the internal 54 revenue code by a delivery service designated by the commissioner of 55 finance, provided, however, any withdrawal of designation or additional 56 designation by the commissioner of finance shall not be effective forS. 8474 854 1 purposes of service upon the tax appeals tribunal, unless and until such 2 withdrawal of designation or additional designation is ratified by the 3 president of the tax appeals tribunal. 4 (2) Any equivalent of registered or certified mail designated by the 5 United States secretary of the treasury, or as may be designated by the 6 commissioner of finance pursuant to the same criteria used by such 7 secretary for such designations pursuant to section seventy-five hundred 8 two of the internal revenue code, shall be included within the meaning 9 of registered or certified mail as used in subdivision d of this 10 section. If the commissioner of finance finds that any equivalent of 11 registered or certified mail designated by such secretary or the commis- 12 sioner of finance is inadequate for the needs of the city, the commis- 13 sioner of finance may withdraw such designation for purposes of this 14 title, provided, however, any withdrawal of designation or additional 15 designation by the commissioner of finance shall not be effective for 16 purposes of service upon the tax appeals tribunal, unless and until such 17 withdrawal of designation or additional designation is ratified by the 18 president of the tax appeals tribunal. 19 § 11-1416 Construction and enforcement. This chapter shall be 20 construed and enforced in conformity with subdivision (j) of section 21 twelve hundred one of the tax law. 22 § 11-1417 Disposition of revenues. All revenues resulting from the 23 imposition of the tax under this chapter shall be paid into the treasury 24 of the city and shall be credited to and deposited in the general fund 25 of the city, but no part of such revenue may be expended unless appro- 26 priated in the annual budget of the city. 27 CHAPTER 16 28 TAX ON CONTAINERS 29 § 11-1601 Definitions. When used in this chapter, the following terms 30 shall mean and include: 31 1. "Person." An individual, partnership, society, association, joint- 32 stock company, corporation, estate, receiver, trustee, assignee, refer- 33 ee, or any other person acting in a fiduciary or representative capaci- 34 ty, whether appointed by a court or otherwise and any combination 35 thereof. 36 2. "Container." Any article, thing or contrivance made in whole or in 37 part of rigid or semi-rigid plastic, including, but not limited to, 38 barrels, baskets, bottles, boxes, cartons, carrying cases, crates, cups, 39 cylinders, drums, jars, jugs, pails, pots, trays, tubs, tubes, tumblers, 40 and vessels, intended for use in packing or packaging any product 41 intended for sale: 42 (a) Metal containers and paperboard or fiber containers which have 43 been impregnated, lined or coated with plastic or other materials shall 44 be considered to be classified as metal containers and paperboard 45 containers, respectively; 46 (b) Paperboard or fiber containers with fastenings, tops or bottoms 47 made of plastic shall be classified as paperboard or fiber containers; 48 (c) Plastic caps that are easily, readily, usually, and customarily 49 separated from the container before disposal shall not be considered 50 part of the container. 51 3. "Recycled material." Component materials which have been derived 52 from previously used material or from new or old scrap material. 53 4. "Taxable period." Such calendar period prescribed for filing 54 returns by this chapter or by the commissioner of finance.S. 8474 855 1 5. "Retail sale" or "sale at retail." A sale to any person for any 2 purpose other than for resale as such or as a physical component part of 3 tangible personal property. 4 6. "Sale." The sale or furnishing of a container by a seller or 5 supplier to a retailer. 6 7. "Seller or supplier." Any person who sells containers to a retail- 7 er. 8 8. "Retailer." Any person who purchases containers, whether filled or 9 unfilled, for the purpose of using them in connection with and as part 10 of sales at retail or who receives them as containers of products 11 intended for sale at retail. 12 9. "City." The city of Staten Island. 13 10. "Commissioner of finance." The commissioner of finance of the 14 city. 15 11. "Comptroller." The comptroller of the city. 16 § 11-1602 General powers of the commissioner of finance. In addi- 17 tion to the powers granted to the commissioner of finance in this chap- 18 ter, the commissioner is hereby authorized and empowered: 19 1. To make, adopt and amend rules and regulations appropriate to the 20 carrying chapter and the purposes thereof; 21 2. To extend, for cause shown, the time of filing any return for a 22 period not exceeding thirty days; and for cause shown, to remit penal- 23 ties but not interest computed at the rate of six per cent per annum; 24 and to compromise disputed claims in connection with the taxes hereby 25 imposed; 26 3. To request information from the tax commission of the state of New 27 York or the treasury department of the United States relative to any 28 person; and to afford information to such tax commission or such treas- 29 ury department relative to any person, any other provision of this chap- 30 ter to the contrary notwithstanding; 31 4. To delegate the commissioner's functions under this section to an 32 assistant commissioner or deputy commissioner in the department of 33 finance or to any employee or employees of the commissioner of finance; 34 5. To prescribe methods for determining the containers sold or 35 supplied or purchased and to determine which are taxable and nontaxable; 36 6. To require sellers and suppliers and retailers within the city to 37 keep detailed records with respect to containers bought, sold, used, 38 manufactured or produced, and stock and production records with respect 39 to such containers whether or not subject to the tax imposed by this 40 chapter, and to furnish any information with respect thereto upon 41 request to the commissioner of finance; 42 7. To assess, determine, revise and readjust the taxes imposed under 43 this chapter. 44 § 11-1603 Administration of oaths and compelling testimony. a. The 45 commissioner of finance or the commissioner's employees or agents duly 46 designated and authorized by the commissioner shall have power to admin- 47 ister oaths and take affidavits in relation to any matter or proceeding 48 in the exercise of their powers and duties under this chapter. The 49 commissioner of finance shall have power to subpoena and require the 50 attendance of witnesses and the production of books, papers and docu- 51 ments to secure information pertinent to the performance of the commis- 52 sioner's duties hereunder and of the enforcement of this chapter and to 53 examine them in relation thereto, and to issue commissions for the exam- 54 ination of witnesses who are out of the state or unable to attend before 55 the commissioner or excused from attendance.S. 8474 856 1 b. A justice of the supreme court either in court or at chambers shall 2 have power summarily to enforce by proper proceedings the attendance and 3 testimony of witnesses and the production and examination of books, 4 papers and documents called for by the subpoena of the commissioner of 5 finance under this chapter. 6 c. Any person who shall refuse to testify or to produce books or 7 records or who shall testify falsely in any material matter pending 8 before the commissioner of finance under this chapter shall be guilty of 9 a misdemeanor, punishment for which shall be a fine of not more than one 10 thousand dollars or imprisonment for not more than one year, or both 11 such fine and imprisonment. 12 d. The officers who serve the summons or subpoena of the commissioner 13 of finance and witnesses attending in response thereto shall be entitled 14 to the same fees as are allowed to officers and witnesses in civil cases 15 in courts of record, except as otherwise provided. Such officers shall 16 be the city sheriff and the city sheriff's duly appointed deputies or 17 any officers or employees of the commissioner of finance, designated to 18 serve such process. 19 § 11-1604 Imposition of tax. 1. On and after July first, nineteen 20 hundred seventy-one, there is hereby imposed within the city and there 21 shall be paid a tax upon every sale of a plastic container at the rate 22 of two cents for each container sold. 23 2. A credit shall be allowed against the taxes imposed by this chap- 24 ter of one cent for each taxable container if manufactured with a mini- 25 mum of thirty percent of recycled material. 26 § 11-1605 Presumptions and burden of proof. For the purpose of 27 proper administration of this chapter and to prevent evasion of the tax 28 hereby imposed, it shall be presumed that all sales of plastic contain- 29 ers are taxable, and not entitled to any credit allowed against the 30 taxes imposed. Such presumptions shall prevail until the contrary is 31 established and the burden of proving the contrary shall be upon the 32 taxpayer. 33 § 11-1606 Payment of the tax. The tax imposed pursuant to this 34 chapter shall be paid by the seller or supplier. However, where the tax 35 has not been paid on a sale by such seller or supplier, the retailer 36 shall be liable for tax thereon upon purchasing the container. Should 37 sellers and suppliers having no business situs in the city, who sell 38 containers to retailers within the city, pay the tax, the retailer 39 purchasing the containers shall not be liable for the tax. 40 § 11-1607 Records to be kept. Every seller or supplier and every 41 retailer shall keep records of all plastic containers taxed pursuant to 42 this chapter and of all purchases and sales thereof and of the taxes due 43 and payable on the sale or on the purchase thereof, in such form as the 44 commissioner of finance may by regulation require. Such records shall 45 be available for inspection and examination at any time upon demand by 46 the commissioner of finance or the commissioner's duly authorized agent 47 or employee and shall be preserved for a period of three years, except 48 that the commissioner of finance may consent to their destruction within 49 that period or may require that they be kept longer. 50 § 11-1608 Exemptions. 1. The following shall be exempt from the 51 payment of the tax imposed by this chapter: 52 (a) The state of New York, or any of its agencies, instrumentalities, 53 public corporations, including a public corporation created pursuant to 54 agreement or compact with another state or Canada, or political subdivi- 55 sions where it is the purchaser, user or consumer;S. 8474 857 1 (b) The United States of America, and any of its agencies and instru- 2 mentalities insofar as it is immune from taxation where it is the 3 purchaser, user or consumer; 4 (c) The United Nations or other international organizations of which 5 the United States of America is a member; and 6 (d) Any corporation, or association, or trust, or community chest, 7 fund or foundation, organized and operated exclusively for religious, 8 charitable, or educational purposes, or for the prevention of cruelty to 9 children or animals, and no part of the net earnings of which inures to 10 the benefit of any private shareholder or individual, and no substantial 11 part of the activities of which is carrying on propaganda, or otherwise 12 attempting to influence legislation; provided, however, that nothing in 13 this paragraph shall include an organization operated for the primary 14 purpose of carrying on a trade or business for profit, whether or not 15 all of its profits are payable to one or more organizations described in 16 this paragraph. 17 2. The following containers shall be exempt from the tax imposed by 18 this chapter: a. Containers sold or furnished containing products 19 intended for use in manufacturing processes and not for final retail 20 sale. 21 b. Containers used as receptacles for food, food products, beverages, 22 dietary foods and health supplements, sold for human consumption but not 23 including: (i) candy and confectionery, (ii) fruit drinks which contain 24 less than seventy percent of natural fruit juice, (iii) soft drinks, 25 sodas and beverages such as are ordinarily dispensed at soda fountains 26 or in connection therewith, other than coffee, tea and cocoa, and (iv) 27 beer, wine or other alcoholic beverages. 28 § 11-1609 Returns. 1. Every seller or supplier shall file with the 29 commissioner of finance a return of containers sold and of the taxes due 30 and payable thereon for the period from July first, nineteen hundred 31 seventy-one until the last day of September, nineteen hundred seventy- 32 one and thereafter for each of the four-monthly periods ending on the 33 last day of January, May and September of each year. 34 2. Every retailer shall file with the commissioner of finance a 35 return of containers purchased by such retailer from sellers or suppli- 36 ers having no situs within the city and of the taxes due thereon for the 37 same periods provided in subdivision one of this section. 38 3. The returns shall be filed within twenty days after the end of the 39 periods covered thereby. The commissioner of finance may permit or 40 require returns to be made for other periods and upon such dates as the 41 commissioner may specify. If the commissioner of finance deems it 42 necessary in order to insure the payment of the tax imposed by this 43 chapter, the commissioner may require returns to be made for shorter 44 periods than those prescribed pursuant to the provisions of this subdi- 45 vision and upon such dates as he or she may specify. 46 4. The forms of returns shall be prescribed by the commissioner of 47 finance and shall contain such information as the commissioner may deem 48 necessary for the proper administration of this chapter. The commis- 49 sioner of finance may require amended returns to be filed within twenty 50 days after notice and to contain the information specified in the 51 notice. 52 5. If a return required by this chapter is not filed or if a return 53 when filed is incorrect or insufficient on its face the commissioner of 54 finance shall take the necessary steps to enforce the filing of such a 55 return or a corrected return.S. 8474 858 1 § 11-1610 Determination of tax. If a return required by this chapter 2 is not filed, or if a return when filed is incorrect or insufficient, 3 the amount of tax due shall be determined by the commissioner of finance 4 from such information as may be obtainable and, if necessary, the tax 5 may be estimated on the basis of external indices, such as volume of 6 sales, inventories, purchases of containers, or of raw materials, 7 production figures, or other factors. Notice of such determination shall 8 be given to the person liable for the collection or payment of the tax. 9 Such determination shall finally and irrevocably fix the tax unless the 10 person against whom it is assessed, within thirty days after giving 11 notice of such determination, shall apply to the commissioner of finance 12 for a hearing, or unless the commissioner of finance of his or her own 13 motion shall redetermine the same. After such hearing the commissioner 14 of finance shall give notice of his or her determination to the person 15 against whom the tax is assessed. The determination of the commissioner 16 of finance shall be reviewable for error, illegality or unconstitution- 17 ality or any other reason whatsoever by a proceeding under article 18 seventy-eight of the civil practice law and rules if application there- 19 for is made to the supreme court within four months after the giving of 20 the notice of such determination. A proceeding under article seventy- 21 eight of the civil practice law and rules shall not be instituted 22 unless: (a) the amount of any tax sought to be reviewed, with penalties 23 and interest thereon, if any, shall be first deposited with the commis- 24 sioner of finance and there shall be filed with the commissioner of 25 finance an undertaking, issued by a surety company authorized to trans- 26 act business in this state and approved by the superintendent of insur- 27 ance of this state as to solvency and responsibility, in such amount as 28 a justice of the supreme court shall approve to the effect that if such 29 proceeding be dismissed or the tax confirmed, the petitioner will pay 30 all costs and charges which may accrue in the prosecution of the 31 proceeding; or (b) at the option of the applicant such undertaking filed 32 with the commissioner of finance may be in a sum sufficient to cover the 33 taxes, penalties and interest thereon stated in such determination plus 34 the costs and charges which may accrue against it in the prosecution of 35 the proceeding, in which event the applicant shall not be required to 36 deposit such taxes, penalties and interest as a condition precedent to 37 the application. 38 § 11-1611 Refunds. a. In the manner provided in this section the 39 commissioner of finance shall refund or credit, without interest, any 40 tax, penalty or interest erroneously, illegally or unconstitutionally 41 collected or paid if application to the commissioner of finance for such 42 refund shall be made within one year from the payment thereof. Whenever 43 a refund is made by the commissioner of finance, the commissioner shall 44 state his or her reasons therefor in writing. Such application may be 45 made by the seller or supplier or the retailer or other person who has 46 actually paid the tax. The commissioner of finance may, in lieu of any 47 refund required to be made, allow credit therefor on payments due from 48 the applicant. 49 b. An application for a refund or credit made as herein provided shall 50 be deemed an application for revision of any tax, penalty or interest 51 complained of. If the commissioner of finance, prior to any hearing 52 held, initially denies the application for refund, the commissioner 53 shall give notice of such determination of denial to the applicant. Such 54 determination shall be final and irrevocable unless the applicant, with- 55 in thirty days after the giving of notice of such determination, shall 56 apply to the commissioner of finance for a hearing, or unless theS. 8474 859 1 commissioner of finance of his or her own motion shall redetermine the 2 same. After such hearing the commissioner of finance shall give notice 3 of his or her determination to the applicant, who shall be entitled to 4 review such determination by a proceeding pursuant to article seventy- 5 eight of the civil practice law and rules, provided such proceeding is 6 instituted within four months after the giving of the notice of such 7 determination, and provided that a final determination of tax was not 8 previously made. Such a proceeding shall not be instituted unless an 9 undertaking is filed with the commissioner of finance in such amount and 10 with such sureties as a justice of the supreme court shall approve to 11 the effect that if such proceeding be dismissed or the tax confirmed, 12 the petitioner shall pay all costs and charges which may accrue in the 13 prosecution of such proceeding. 14 c. A person shall not be entitled to a revision, refund or credit 15 under this section of a tax, interest or penalty which had been deter- 16 mined to be due pursuant to the provisions of section 11-1610 of this 17 chapter where such person has had a hearing or an opportunity for a 18 hearing, as provided in said section, or has failed to avail himself or 19 herself of the remedies therein provided. No refund or credit shall be 20 made of a tax, interest or penalty paid after a determination by the 21 commissioner of finance made pursuant to section 11-1609 of this chapter 22 unless it be found that such determination was erroneous, illegal or 23 unconstitutional or otherwise improper, by the commissioner of finance 24 after a hearing or of the commissioner's own motion, or in a proceeding 25 under article seventy-eight of the civil practice law and rules, pursu- 26 ant to the provisions of said section, in which event refund or credit 27 without interest shall be made of the tax, interest or penalty found to 28 have been overpaid. 29 § 11-1612 Reserves. In cases where the seller or supplier or the 30 retailer has applied for a refund and has instituted a proceeding under 31 article seventy-eight of the civil practice law and rules to review a 32 determination adverse to him or her on his or her application for 33 refund, the comptroller shall set up appropriate reserves to meet any 34 decision adverse to the city. 35 § 11-1613 Remedies exclusive. The remedies provided by sections 36 11-1610 and 11-1611 of this chapter shall be the exclusive remedies 37 available to any person for the review of tax liability imposed by this 38 chapter; and no determination or proposed determination of tax or deter- 39 mination on any application for refund shall be enjoined or reviewed by 40 an action for declaratory judgment, an action for money had and received 41 or by any action or proceeding other than a proceeding in the nature of 42 a certiorari proceeding under article seventy-eight of the civil prac- 43 tice law and rules; provided, however, that a taxpayer may proceed by 44 declaratory judgment if such taxpayer institutes suit within thirty days 45 after a deficiency assessment is made and pays the amount of the defi- 46 ciency assessment to the commissioner of finance prior to the institu- 47 tion of such suit and posts a bond for costs as provided in section 48 11-1610 of this chapter. 49 § 11-1614 Proceedings to recover tax. a. Whenever any seller or 50 supplier or retailer or other person shall fail to pay any tax, penalty 51 or interest imposed by this chapter, the corporation counsel shall, upon 52 the request of the commissioner of finance bring or cause to be brought 53 an action to enforce the payment of the same on behalf of the city of 54 Staten Island in any court of the state of New York or of any other 55 state or of the United States. If, however, the commissioner of finance 56 in his or her discretion believes that any such seller or supplier orS. 8474 860 1 retailer or other person is about to cease business, leave the state or 2 remove or dissipate the assets out of which the tax, penalties or inter- 3 est might be satisfied, and that any such tax, penalty or interest will 4 not be paid when due, the commissioner of finance may declare such tax, 5 penalty or interest to be immediately due and payable and may issue a 6 warrant immediately. 7 b. As an additional or alternate remedy, the commissioner of finance 8 may issue a warrant, directed to the city sheriff commanding the city 9 sheriff to levy upon and sell the real and personal property of the 10 seller or supplier or retailer or other person liable for the tax, which 11 may be found within the city, for the payment of the amount thereof, 12 with any penalties and interest, and the cost of executing the warrant, 13 and to return such warrant to the commissioner of finance and to pay to 14 the commissioner of finance the money collected by virtue thereof within 15 sixty days after the receipt of such warrant. The city sheriff shall 16 within five days after the receipt of the warrant file with the county 17 clerk a copy thereof, and thereupon such clerk shall enter in the judg- 18 ment docket the name of the person mentioned in the warrant and the 19 amount of the tax, penalties and interest for which the warrant is 20 issued and the date when such copy is filed. Thereupon the amount of 21 such warrant so docketed shall become a lien upon the title to and 22 interest in real and personal property of the person against whom the 23 warrant is issued. The city sheriff shall then proceed upon the warrant, 24 in the same manner, and with like effect, as that provided by law in 25 respect to executions issued against property upon judgments of a court 26 of record, and for services in executing the warrant the city sheriff 27 shall be entitled to the same fees, which he or she may collect in the 28 same manner. In the discretion of the commissioner of finance a warrant 29 of like terms, force and effect may be issued and directed to any offi- 30 cer or employee of the department of finance, and in the execution ther- 31 eof such officer or employee shall have all the powers conferred by law 32 upon sheriffs, but shall be entitled to no fee or compensation in excess 33 of the actual expenses paid in the performance of such duty. If a 34 warrant is returned not satisfied in full, the commissioner of finance 35 may from time to time issue new warrants and shall also have the same 36 remedies to enforce the amount due thereunder as if the city had recov- 37 ered judgment therefor and execution thereon had been returned unsatis- 38 fied. 39 c. Whenever a seller or supplier or the retailer shall make a sale, 40 transfer, or assignment in bulk of any part of the whole of his or her 41 fixtures, or of his or her stock of merchandise, or of stock or merchan- 42 dise and of fixtures pertaining to the conduct or operation of business 43 of the seller or supplier or the retailer, otherwise than in the ordi- 44 nary course of trade and regular prosecution of business, the purchaser, 45 transferee or assignee shall at least ten days before taking possession 46 of the subject of said sale, transfer or assignment, or paying therefor, 47 notify the commissioner of finance by registered mail of the proposed 48 sale and of the price, terms and conditions thereof whether or not the 49 seller, transferor or assignor, has represented to, or informed the 50 purchaser, transferee or assignee that it owes any tax pursuant to this 51 chapter, and whether or not the purchaser, transferee or assignee has 52 knowledge that such taxes are owing, and whether any such taxes are in 53 fact owing. 54 Whenever the purchaser, transferee or assignee shall fail to give 55 notice to the commissioner of finance as required by the opening para- 56 graph of this subdivision, or whenever the commissioner of finance shallS. 8474 861 1 inform the purchaser, transferee or assignee that a possible claim for 2 such tax or taxes exists, any sums of money, property or chooses in 3 action, or other consideration, which the purchaser, transferee or 4 assignee is required to transfer over to the seller, transferor or 5 assignor shall be subject to a first priority right and lien for any 6 such taxes theretofore or thereafter determined to be due from the sell- 7 er, transferor or assignor to the city, and the purchaser, transferee or 8 assignee is forbidden to transfer to the seller, transferor or assignor 9 any such sums of money, property or chooses in action to the extent of 10 the amount of the city's claim. For failure to comply with the 11 provisions of this subdivision, the purchaser, transferee or assignee, 12 in addition to being subject to the liabilities and remedies imposed 13 under the provisions of article six of the uniform commercial code, 14 shall be personally liable for the payment to the city of any such taxes 15 theretofore or thereafter determined to be due to the city from the 16 seller, transferor or assignor, and such liability may be assessed and 17 enforced in the same manner as the liability for tax under this chapter. 18 d. The commissioner of finance, if he or she finds that the interests 19 of the city will not thereby be jeopardized, and upon such conditions as 20 the commissioner of finance may require, may release any property from 21 the lien of any warrant or vacate such warrant for unpaid taxes, addi- 22 tions to tax, penalties and interest filed pursuant to subdivision b of 23 this section, and such release or vacating of the warrant may be 24 recorded in the office of any recording officer in which such warrant 25 has been filed. The clerk shall thereupon cancel and discharge as of the 26 original date of docketing the vacated warrant. 27 § 11-1615 Penalties and interest. a. Any person failing to file a 28 return or to pay any tax to the commissioner of finance within the time 29 required by this chapter shall be subject to a penalty of five percent 30 of the amount of tax due; plus interest at the rate of one percent of 31 such tax for each month of delay excepting the first month after such 32 return was required to be filed or such tax became due; but the commis- 33 sioner of finance if satisfied that the delay was excusable, may remit 34 all or any part of such penalty, but not interest at the rate of six 35 percent per year. Such penalties and interest shall be paid and disposed 36 of in the same manner as other revenues from this chapter. Unpaid penal- 37 ties and interest may be enforced in the same manner as the tax imposed 38 by this chapter. 39 b. Any seller or supplier or any retailer or any officer of a corpo- 40 rate seller or supplier or retailer, failing to file a return as 41 required by this chapter, or filing or causing to be filed or making or 42 causing to be made or given or causing to be given any return, certif- 43 icate, affidavit, representation, information, testimony or statement 44 required or authorized by this chapter which is willfully false, and any 45 seller or supplier or any retailer or any officer of a corporate seller 46 or supplier or retailer failing to keep the records required by subdivi- 47 sion six of section 11-1602 of this chapter, shall, in addition to the 48 penalties under this subdivision or elsewhere prescribed, be guilty of a 49 misdemeanor, punishment for which shall be a fine of not more than one 50 thousand dollars or imprisonment for not more than one year, or both 51 such fine and imprisonment. It shall not be any defense to a prosecution 52 under this subdivision that the failure to file a return or that the 53 actions or failures to act mentioned in this subdivision was uninten- 54 tional or not willful. 55 c. The certificate of the commissioner of finance to the effect that a 56 tax has not been paid, that a return has not been filed, or that infor-S. 8474 862 1 mation has not been supplied pursuant to the provisions of this chapter, 2 shall be presumptive evidence thereof. 3 § 11-1616 Return to be secret. a. Except in accordance with proper 4 judicial order, or as otherwise provided by law, it shall be unlawful 5 for the commissioner of finance, any officer or employee of the depart- 6 ment of finance, any person engaged or retained on an independent 7 contract basis or any person who, pursuant to this section is permitted 8 to inspect any return or to whom a copy, an abstract or a portion of any 9 return is furnished, or to whom any information contained in any return 10 is furnished, to divulge or make known in any manner any information 11 contained in or relating to any return required under this chapter. The 12 officers charged with the custody of such returns shall not be required 13 to produce any of them or evidence of anything contained in them in any 14 action or proceeding in any court, except on behalf of the commissioner 15 of finance in an action or proceeding under the provisions of this chap- 16 ter, or on behalf of any party to any action or proceeding under the 17 provisions of this chapter, when the returns or facts shown thereby are 18 directly involved in such action or proceeding, in either of which 19 events the court may require the production of, and may admit in 20 evidence, so much of said returns or of the facts shown thereby, as are 21 pertinent to the action or proceeding and no more. Nothing under this 22 subdivision shall be construed to prohibit the delivery to a taxpayer or 23 such taxpayer's duly authorized representative of a certified copy of 24 any return filed in connection with such taxpayer's tax; nor to prohibit 25 the delivery of such a certified copy of such return or of any informa- 26 tion contained in or relating thereto, the United States of America or 27 any department thereof, to the state of New York or any department ther- 28 eof, or to any agency or department of the city of Staten Island, 29 provided the same is requested for official business; nor to prohibit 30 the inspection for official business of such returns by the corporation 31 counsel or other legal representatives of the city or by the district 32 attorney of Richmond county; nor to prohibit the publication of statis- 33 tics so classified as to prevent the identification of particular 34 returns and the items thereof. Returns shall be preserved for three 35 years and thereafter until the commissioner of finance permits them to 36 be destroyed. 37 b. Any violation of subdivision a of this section shall be punishable 38 by a fine not exceeding one thousand dollars, or by imprisonment not 39 exceeding one year, or both, in the discretion of the court, and if the 40 offender be an officer or employee of the city he or she shall be 41 dismissed from office and be incapable of holding any public office for 42 a period of five years thereafter. 43 § 11-1617 Notices and limitations of time. a. Any notice author- 44 ized or required under the provisions of this chapter may be given by 45 mailing the same to the person for whom it is intended in a postpaid 46 envelope addressed to such person at the address given in the last 47 return filed by such person pursuant to the provisions of this chapter 48 or in any application made by such person or, if no return has been 49 filed or application made, then to such address as may be obtainable. 50 The mailing of such notice shall be presumptive evidence of the receipt 51 of the same by the person to whom addressed. Any period of time which 52 is determined according to the provisions of this chapter by the giving 53 of notice shall commence to run from the date of mailing of such notice. 54 b. The provisions of the civil practice law and rules or any other 55 law relative to limitations of time for the enforcement of a civil reme- 56 dy shall not apply to any proceeding or action taken by the city toS. 8474 863 1 levy, appraise, assess, determine or enforce the collection of any tax 2 or penalty provided by this chapter. However, except in the case of a 3 willfully false or fraudulent return with intent to evade the tax, no 4 assessment of additional tax shall be made after the expiration of more 5 than three years from the date of the filing of a return; provided, 6 however, that where no return has been filed as provided by law the tax 7 may be assessed at any time. 8 c. Where, before the expiration of the period prescribed under this 9 section for assessment of an additional tax, a taxpayer has consented in 10 writing that such period be extended, the amount of such additional tax 11 due may be determined at any time within such extended period. The 12 period so extended may be further extended by subsequent consents in 13 writing made before the expiration of the extended period. 14 § 11-1618 Construction and enforcement. This chapter shall be 15 construed and enforced in conformity with chapter three hundred ninety- 16 nine of the laws of nineteen hundred seventy-one, pursuant to which it 17 is enacted. 18 CHAPTER 17 19 CITY PERSONAL INCOME TAX ON RESIDENTS 20 SUBCHAPTER 1 21 GENERAL 22 § 11-1701 Imposition of tax. General. A tax is hereby imposed on the 23 city taxable income of every city resident individual, estate and trust 24 determined in accordance with the rates set forth in subdivision (a) of 25 this section for taxable years beginning before two thousand twenty-sev- 26 en, and in accordance with the rates set forth in subdivision (b) of 27 this section for taxable years beginning after two thousand twenty-six. 28 Provided, however, that if, for any taxable year beginning after two 29 thousand twenty-six, the rates set forth in such subdivision (b) are 30 rendered inapplicable and the rates set forth in such subdivision (a) 31 are rendered applicable, then the tax for such taxable year shall be at 32 the rates provided under subparagraph (A) of paragraphs one, two and 33 three of such subdivision (a). 34 Notwithstanding the opening paragraph of this section, for taxable 35 years beginning after two thousand two and before two thousand six, a 36 tax is hereby imposed on the city taxable income of every city resident 37 individual, estate and trust determined in accordance with the rates set 38 forth in subdivision (g) of this section and in accordance with the 39 provisions of subdivision (h) of this section. During any taxable year 40 beginning after two thousand two and before two thousand six, in which 41 the tax imposed pursuant to this section is determined in accordance 42 with subdivisions (g) and (h) of this section, the rates set forth in 43 subdivisions (a) and (b) of this section shall be inapplicable, and the 44 tax imposed pursuant to section 11-1704.1 of this chapter shall be 45 suspended. 46 (a) Rate of tax. A tax imposed pursuant to this section shall be 47 determined as follows: 48 (1) Resident married individuals filing joint returns and resident 49 surviving spouses. The tax under this section for each taxable year on 50 the city taxable income of every city resident married individual who 51 makes a single return jointly with his or her spouse under subdivision 52 (b) of section 11-1751 of this chapter and on the city taxable income ofS. 8474 864 1 every city resident surviving spouse shall be determined in accordance 2 with the following tables: 3 (A) For taxable years beginning after two thousand sixteen: 4 If the city taxable income is: The tax is: 5 Not over $21,600 2.7% of the city taxable income 6 Over $21,600 but not $583 plus 3.3% of excess 7 over $45,000 over $21,600 8 Over $45,000 but not $1,355 plus 3.35% of excess 9 over $90,000 over $45,000 10 Over $90,000 $2,863 plus 3.4% of excess 11 over $90,000 12 (B) For taxable years beginning after two thousand fourteen and before 13 two thousand seventeen: 14 If the city taxable income is: The tax is: 15 Not over $21,600 2.55% of the city taxable income 16 Over $21,600 but not $551 plus 3.1% of excess 17 over $45,000 over $21,600 18 Over $45,000 but not $1,276 plus 3.15% of excess 19 over $90,000 over $45,000 20 Over $90,000 but not $2,694 plus 3.2% of excess 21 over $500,000 over $90,000 22 Over $500,000 $16,803 plus 3.4% of excess 23 over $500,000 24 (C) For taxable years beginning after two thousand nine and before two 25 thousand fifteen: 26 If the city taxable income is: The tax is: 27 Not over $21,600 2.55% of the city taxable income 28 Over $21,600 but not $551 plus 3.1% of excess 29 over $45,000 over $21,600 30 Over $45,000 but not $1,276 plus 3.15% of excess 31 over $90,000 over $45,000 32 Over $90,000 but not $2,694 plus 3.2% of excess 33 over $500,000 over $90,000 34 Over $500,000 $15,814 plus 3.4% of excess 35 over $500,000 36 (2) Resident heads of households. The tax under this section for each 37 taxable year on the city taxable income of every city resident head of a 38 household shall be determined in accordance with the following tables: 39 (A) For taxable years beginning after two thousand sixteen: 40 If the city taxable income is: The tax is: 41 Not over $14,400 2.7% of the city taxable income 42 Over $14,400 but not $389 plus 3.3% of excess 43 over $30,000 over $14,400 44 Over $30,000 but not $904 plus 3.35% of excess 45 over $60,000 over $30,000 46 Over $60,000 $1,909 plus 3.4% of excess 47 over $60,000S. 8474 865 1 (B) For taxable years beginning after two thousand fourteen and before 2 two thousand seventeen: 3 If the city taxable income is: The tax is: 4 Not over $14,400 2.55% of the city taxable income 5 Over $14,400 but not $367 plus 3.1% of excess 6 over $30,000 over $14,400 7 Over $30,000 but not $851 plus 3.15% of excess 8 over $60,000 over $30,000 9 Over $60,000 but not $1,796 plus 3.2% of excess 10 over $500,000 over $60,000 11 Over $500,000 $16,869 plus 3.4% of excess 12 over $500,000 13 (C) For taxable years beginning after two thousand nine and before two 14 thousand fifteen: 15 If the city taxable income is: The tax is: 16 Not over $14,400 2.55% of the city taxable income 17 Over $14,400 but not $367 plus 3.1% of excess 18 over $30,000 over $14,400 19 Over $30,000 but not $851 plus 3.15% of excess 20 over $60,000 over $30,000 21 Over $60,000 but not $1,796 plus 3.2% of excess 22 over $500,000 over $60,000 23 Over $500,000 $15,876 plus 3.4% of excess 24 over $500,000 25 (3) Resident unmarried individuals, resident married individuals 26 filing separate returns and resident estates and trusts. The tax under 27 this section for each taxable year on the city taxable income of every 28 city resident individual who is not a married individual who makes a 29 single return jointly with his or her spouse under subdivision (b) of 30 section 11-1751 of this chapter or a city resident head of a household 31 or a city resident surviving spouse, and on the city taxable income of 32 every city resident estate and trust shall be determined in accordance 33 with the following tables: 34 (A) For taxable years beginning after two thousand sixteen: 35 If the city taxable income is: The tax is: 36 Not over $12,000 2.7% of the city taxable income 37 Over $12,000 but not $324 plus 3.3% of excess 38 over $25,000 over $12,000 39 Over $25,000 but not $753 plus 3.35% of excess 40 over $50,000 over $25,000 41 Over $50,000 $1,591 plus 3.4% of excess 42 over $50,000 43 (B) For taxable years beginning after two thousand fourteen and before 44 two thousand seventeen: 45 If the city taxable income is: The tax is: 46 Not over $12,000 2.55% of the city taxable income 47 Over $12,000 but not $306 plus 3.1% of excess 48 over $25,000 over $12,000 49 Over $25,000 but not $709 plus 3.15% of excessS. 8474 866 1 over $50,000 over $25,000 2 Over $50,000 but not $1,497 plus 3.2% of excess 3 over $500,000 over $50,000 4 Over $500,000 $16,891 plus 3.4% of excess 5 over $500,000 6 (C) For taxable years beginning after two thousand nine and before two 7 thousand fifteen: 8 If the city taxable income is: The tax is: 9 Not over $12,000 2.55% of the city taxable income 10 Over $12,000 but not $306 plus 3.1% of excess 11 over $25,000 over $12,000 12 Over $25,000 but not $709 plus 3.15% of excess 13 over $50,000 over $25,000 14 Over $50,000 but not $1,497 plus 3.2% of excess 15 over $500,000 over $50,000 16 Over $500,000 $15,897 plus 3.4% of excess 17 over $500,000 18 (b) Rate of tax. A tax imposed pursuant to this section shall be 19 determined as follows: 20 (1) Resident married individuals filing joint returns and resident 21 surviving spouses. The tax under this section for each taxable year on 22 the city taxable income of every city resident married individual who 23 makes a single return jointly with his or her spouse under subdivision 24 (b) of section 11-1751 of this chapter and on the city taxable income of 25 every city resident surviving spouse shall be determined in accordance 26 with the following table: 27 For taxable years beginning after two thousand twenty-six: 28 If the city taxable income is: The tax is: 29 Not over $21,600 1.18% of the city taxable income 30 Over $21,600 but not $255 plus 1.435% of excess 31 over $45,000 over $21,600 32 Over $45,000 but not $591 plus 1.455% of excess 33 over $90,000 over $45,000 34 Over $90,000 $1,245 plus 1.48% of excess 35 over $90,000 36 (2) Resident heads of households. The tax under this section for each 37 taxable year on the city taxable income of every city resident head of a 38 household shall be determined in accordance with the following table: 39 For taxable years beginning after two thousand twenty-six: 40 If the city taxable income is: The tax is: 41 Not over $14,400 1.18% of the city taxable income 42 Over $14,400 but not $170 plus 1.435% of excess 43 over $30,000 over $14,400 44 Over $30,000 but not $394 plus 1.455% of excess 45 over $60,000 over $30,000 46 Over $60,000 $830 plus 1.48% of excess 47 over $60,000 48 (3) Resident unmarried individuals, resident married individuals 49 filing separate returns and resident estates and trusts. The tax under 50 this section for each taxable year on the city taxable income of everyS. 8474 867 1 city resident individual who is not a married individual who makes a 2 single return jointly with his or her spouse under subdivision (b) of 3 section 11-1751 of this chapter or a city resident head of a household 4 or a city resident surviving spouse, and on the city taxable income of 5 every city resident estate and trust shall be determined in accordance 6 with the following table: 7 For taxable years beginning after two thousand twenty-six: 8 If the city taxable income is: The tax is: 9 Not over $12,000 1.18% of the city taxable income 10 Over $12,000 but not $142 plus 1.435% of excess 11 over $25,000 over $12,000 12 Over $25,000 but not $328 plus 1.455% of excess 13 over $50,000 over $25,000 14 Over $50,000 $692 plus 1.48% of excess 15 over $50,000 16 (c) Partners and partnerships. A partnership as such shall not be 17 subject to tax under this chapter. Persons carrying on business as part- 18 ners shall be liable for tax under this chapter only in their separate 19 or individual capacities. As used in this chapter, the term "partner- 20 ship" shall include, unless a different meaning is clearly required, a 21 subchapter K limited liability company. The term "subchapter K limited 22 liability company" shall mean a limited liability company classified as 23 a partnership for federal income tax purposes. The term "limited liabil- 24 ity company" means a domestic limited liability company or a foreign 25 limited liability company, as defined in section one hundred two of the 26 limited liability company law, a limited liability investment company 27 formed pursuant to section five hundred seven of the banking law, or a 28 limited liability company formed pursuant to section one hundred two-a 29 of the banking law. 30 (d) Associations taxable as corporations. An association, trust or 31 other unincorporated organization which is taxable as a corporation for 32 federal income tax purposes shall not be subject to tax under this chap- 33 ter. 34 (e) Exempt trusts and organizations. A trust or other unincorporated 35 organization which by reason of its purposes or activities is exempt 36 from federal income tax shall be exempt from tax under this chapter, 37 regardless of whether subject to federal and state income tax on unre- 38 lated business taxable income. 39 (f) Cross references. For definitions of city taxable income of: 40 (1) City resident individual, see section 11-1711 of this chapter. 41 (2) City resident estate or trust, see section 11-1718 of this chap- 42 ter. 43 (g) Rate of tax. For taxable years beginning after two thousand two 44 and before two thousand six, the tax imposed pursuant to this section 45 shall be determined as follows: 46 (1) Resident married individuals filing joint returns and resident 47 surviving spouses. The tax under this section for each taxable year on 48 the city taxable income of every city resident married individual who 49 makes a single return jointly with his or her spouse under subdivision 50 (b) of section 11-1751 of this chapter and on the city taxable income of 51 every city resident surviving spouse shall be determined in accordance 52 with the following tables: 53 (A) For taxable years beginning in two thousand five:S. 8474 868 1 If the city taxable income is: The tax is: 2 Not over $21,600 2.907% of the city taxable income 3 Over $21,600 but not over $45,000 $628 plus 3.534% of excess over 4 $21,600 5 Over $45,000 but not over $90,000 $1,455 plus 3.591% of excess over 6 $45,000 7 Over $90,000 but not over $150,000 $3,071 plus 3.648% of excess over 8 $90,000 9 Over $150,000 but not over $500,000 $5,260 plus 4.05% of excess over 10 $150,000 11 Over $500,000 $19,435 plus 4.45% of excess over 12 $500,000 13 (B) For taxable years beginning in two thousand four: 14 If the city taxable income is: The tax is: 15 Not over $21,600 2.907% of the city taxable income 16 Over $21,600 but not over $45,000 $628 plus 3.534% of excess over 17 $21,600 18 Over $45,000 but not over $90,000 $1,455 plus 3.591% of excess over 19 $45,000 20 Over $90,000 but not over $150,000 $3,071 plus 3.648% of excess over 21 $90,000 22 Over $150,000 but not over $500,000 $5,260 plus 4.175% of excess over 23 $150,000 24 Over $500,000 $19,872 plus 4.45% of excess over 25 $500,000 26 (C) For taxable years beginning in two thousand three: 27 If the city taxable income is: The tax is: 28 Not over $21,600 2.907% of the city taxable income 29 Over $21,600 but not over $45,000 $628 plus 3.534% of excess over 30 $21,600 31 Over $45,000 but not over $90,000 $1,455 plus 3.591% of excess over 32 $45,000 33 Over $90,000 but not over $150,000 $3,071 plus 3.648% of excess over 34 $90,000 35 Over $150,000 but not over $500,000 $5,260 plus 4.25% of excess over 36 $150,000 37 Over $500,000 $20,135 plus 4.45% of excess over 38 $500,000 39 (2) Resident heads of households. The tax under this section for each 40 taxable year on the city taxable income of every city resident head of a 41 household shall be determined in accordance with the following tables: 42 (A) For taxable years beginning in two thousand five: 43 If the city taxable income is: The tax is: 44 Not over $14,400 2.907% of the city taxable income 45 Over $14,400 but not over $30,000 $419 plus 3.534% of excess over 46 $14,400 47 Over $30,000 but not over $60,000 $970 plus 3.591% of excess over 48 $30,000 49 Over $60,000 but not over $125,000 $2,047 plus 3.648% of excess overS. 8474 869 1 $60,000 2 Over $125,000 but not over $500,000 $4,418 plus 4.05% of excess over 3 $125,000 4 Over $500,000 $19,606 plus 4.45% of excess over 5 $500,000 6 (B) For taxable years beginning in two thousand four: 7 If the city taxable income is: The tax is: 8 Not over $14,400 2.907% of the city taxable income 9 Over $14,400 but not over $30,000 $419 plus 3.534% of excess over 10 $14,400 11 Over $30,000 but not over $60,000 $970 plus 3.591% of excess over 12 $30,000 13 Over $60,000 but not over $125,000 $2,047 plus 3.648% of excess over 14 $60,000 15 Over $125,000 but not over $500,000 $4,418 plus 4.175% of excess over 16 $125,000 17 Over $500,000 $20,075 plus 4.45% of excess over 18 $500,000 19 (C) For taxable years beginning in two thousand three: 20 If the city taxable income is: The tax is: 21 Not over $14,400 2.907% of the city taxable income 22 Over $14,400 but not over $30,000 $419 plus 3.534% of excess over 23 $14,400 24 Over $30,000 but not over $60,000 $970 plus 3.591% of excess over 25 $30,000 26 Over $60,000 but not over $125,000 $2,047 plus 3.648% of excess over 27 $60,000 28 Over $125,000 but not over $500,000 $4,418 plus 4.25% of excess over 29 $125,000 30 Over $500,000 $20,356 plus 4.45% of excess over 31 $500,000 32 (3) Resident unmarried individuals, resident married individuals 33 filing separate returns and resident estates and trusts. The tax under 34 this section for each taxable year on the city taxable income of every 35 city resident individual who is not a married individual who makes a 36 single return jointly with his or her spouse under subdivision (b) of 37 section 11-1751 of this chapter or a city resident head of household or 38 a city resident surviving spouse, and on the city taxable income of 39 every city resident estate and trust shall be determined in accordance 40 with the following tables: 41 (A) For taxable years beginning in two thousand five: 42 If the city taxable income is: The tax is: 43 Not over $12,000 2.907% of the city taxable income 44 Over $12,000 but not over $25,000 $349 plus 3.534% of excess over 45 $12,000 46 Over $25,000 but not over $50,000 $808 plus 3.591% of excess over 47 $25,000 48 Over $50,000 but not over $100,000 $1,706 plus 3.648% of excess overS. 8474 870 1 $50,000 2 Over $100,000 but not over $500,000 $3,530 plus 4.05% of excess over 3 $100,000 4 Over $500,000 $19,730 plus 4.45% of excess over 5 $500,000 6 (B) For taxable years beginning in two thousand four: 7 If the city taxable income is: The tax is: 8 Not over $12,000 2.907% of the city taxable income 9 Over $12,000 but not over $25,000 $349 plus 3.534% of excess over 10 $12,000 11 Over $25,000 but not over $50,000 $808 plus 3.591% of excess over 12 $25,000 13 Over $50,000 but not over $100,000 $1,706 plus 3.648% of excess over 14 $50,000 15 Over $100,000 but not over $500,000 $3,530 plus 4.175% of excess over 16 $100,000 17 Over $500,000 $20,230 plus 4.45% of excess over 18 $500,000 19 (C) For taxable years beginning in two thousand three: 20 If the city taxable income is: The tax is: 21 Not over $12,000 2.907% of the city taxable income 22 Over $12,000 but not over $25,000 $349 plus 3.534% of excess over 23 $12,000 24 Over $25,000 but not over $50,000 $808 plus 3.591% of excess over 25 $25,000 26 Over $50,000 but not over $100,000 $1,706 plus 3.648% of excess over 27 $50,000 28 Over $100,000 but not over $500,000 $3,530 plus 4.25% of excess over 29 $100,000 30 Over $500,000 $20,530 plus 4.45% of excess over 31 $500,000 32 (h) Tax table benefit recapture. For taxable years beginning after two 33 thousand two and before two thousand six, there is hereby imposed a 34 supplemental tax, in addition to the tax imposed under the opening para- 35 graph of this section, for the purpose of recapturing the benefit of the 36 tax tables contained in subdivision (g) of this section. The supple- 37 mental tax shall be an amount equal to the sum of the tax table benefits 38 in paragraphs one and two of this subdivision multiplied by their 39 respective fractions in such paragraphs provided, however, that para- 40 graph one of this subdivision shall not apply to taxpayers who are not 41 subject to the second highest rate of tax. 42 (1) Resident married individuals filing joint returns, surviving 43 spouses, resident heads of households, resident unmarried individuals, 44 resident married individuals filing separate returns and resident 45 estates and trusts. (A) The tax table benefit is the difference between 46 (i) the amount of taxable income set forth in the tax table in subdivi- 47 sion (g) of this section not subject to the second highest rate of tax 48 for the taxable year multiplied by such rate and (ii) the second highest 49 dollar denominated tax for such amount of taxable income set forth in 50 the tax table applicable to the taxable year in subdivision (g) of this 51 section.S. 8474 871 1 (B) The fraction is computed as follows: the numerator is the lesser 2 of fifty thousand dollars or the excess of New York adjusted gross 3 income for the taxable year over one hundred fifty thousand dollars and 4 the denominator is fifty thousand dollars. 5 (C) This paragraph shall only apply to taxable years beginning after 6 two thousand two and before two thousand six. 7 (2) Resident married individuals filing joint returns, surviving 8 spouses, resident heads of households, resident unmarried individuals, 9 resident married individuals filing separate returns and resident 10 estates and trusts. (A) The tax table benefit is the difference between 11 (i) the amount of taxable income set forth in the tax table in subdivi- 12 sion (g) of this section not subject to the highest rate of tax for the 13 taxable year multiplied by such rate and (ii) the highest dollar denomi- 14 nated tax for such amount of taxable income set forth in the tax table 15 applicable to the taxable year in subdivision (g) of this section less 16 the sum of the tax table benefits in paragraph one of this subdivision. 17 (B) For such taxpayers with adjusted gross income over five hundred 18 thousand dollars, the fraction is one. Provided, however, that the total 19 tax prior to the application of any tax credits shall not exceed the 20 highest rate of tax set forth in the tax table in subdivision (g) of 21 this section multiplied by the taxpayer's taxable income. 22 (C) This paragraph shall only apply to taxable years beginning after 23 two thousand two and before two thousand six. 24 § 11-1703 Separate tax on the ordinary income portion of lump sum 25 distributions. (a) Imposition of separate tax. In addition to any other 26 tax imposed by this chapter, there is hereby imposed for each taxable 27 year a separate tax on the ordinary income portion of a lump sum 28 distribution of every city resident individual, estate and trust which 29 has made an election of lump sum treatment under subsection (e) of 30 section four hundred two of the internal revenue code. The recipient of 31 a lump sum distribution shall be liable for the tax imposed by this 32 section. The credits against tax under this chapter, except for the 33 credit under section 11-1773, shall not be allowed against the tax 34 imposed by this section. 35 (b) Cross reference. For computation of tax, see section 11-1724 of 36 this chapter. 37 § 11-1704 Tax surcharge. (a) In addition to the taxes imposed by 38 sections 11-1701 and 11-1703 of this subchapter, there is hereby imposed 39 for each taxable year beginning after nineteen hundred eighty-nine but 40 before nineteen hundred ninety-nine, a tax surcharge on the city taxable 41 income of every city resident individual, estate and trust. 42 (b) The tax surcharge imposed pursuant to this section shall be deter- 43 mined as follows: 44 (1) Resident married individuals filing joint returns and resident 45 surviving spouses. The tax surcharge under this section on the city 46 taxable income of every city resident married individual who makes a 47 single return jointly with his or her spouse under subdivision (b) of 48 section 11-1751 of this chapter and on the city taxable income of every 49 city resident surviving spouse shall be determined in accordance with 50 the following tables: 51 (A) For taxable years beginning after nineteen hundred eighty-nine and 52 before nineteen hundred ninety-five:S. 8474 872 1 If the city taxable income is: The tax surcharge is: 2 Not over $15,500 0 3 Over $15,500 but not over $27,000 0.51% of city taxable income in 4 excess of $15,500 5 Over $27,000 but not over $45,000 $59 plus 0.55% of excess over 6 $27,000 7 Over $45,000 but not over $108,000 $158 plus 0.51% of excess over 8 $45,000 9 Over $108,000 $479 plus 0.51% of excess over 10 $108,000 11 (B) For taxable years beginning after nineteen hundred ninety-four but 12 before nineteen hundred ninety-nine: 13 If the city taxable income is: The tax surcharge is: 14 Not over $14,400 0 15 Over $14,400 but not over $27,000 0.51% of city taxable income in 16 excess of $14,400 17 Over $27,000 but not over $45,000 $64 plus 0.55% of excess over 18 $27,000 19 Over $45,000 but not over $108,000 $162 plus 0.51% of excess over 20 $45,000 21 Over $108,000 $484 plus 0.51% of excess over 22 $108,000 23 (2) Resident heads of households. The tax surcharge under this section 24 on the city taxable income of every city resident head of household 25 shall be determined in accordance with the following tables: 26 (A) For taxable years beginning after nineteen hundred eighty-nine and 27 before nineteen hundred ninety-five: 28 If the city taxable income is: The tax surcharge is: 29 Not over $8,800 0 30 Over $8,800 but not over $16,500 0.51% of city taxable income in 31 excess of $8,800 32 Over $16,500 but not over $27,500 $39 plus 0.55% of excess over 33 $16,500 34 Over $27,500 but not over $66,000 $100 plus 0.51% of excess over 35 $27,500 36 Over $66,000 $296 plus 0.51% of excess over 37 $66,000 38 (B) For taxable years beginning after nineteen hundred ninety-four but 39 before nineteen hundred ninety-nine: 40 If the city taxable income is: The tax surcharge is: 41 Not over $7,350 0 42 Over $7,350 but not over $9,200 0.42% of city taxable income in 43 excess of $7,350 44 Over $9,200 but not over $17,250 $7 plus 0.51% of excess over 45 $9,200 46 Over $17,250 but not over $28,750 $48 plus 0.55% of excess over 47 $17,250 48 Over $28,750 but not over $69,000 $111 plus 0.51% of excess over 49 $28,750 50 Over $69,000 $317 plus 0.51% of excess overS. 8474 873 1 $69,000 2 (3) Resident unmarried individuals, resident married individuals 3 filing separate returns and resident estates and trusts. The tax 4 surcharge under this section on the city taxable income of every city 5 resident individual who is not a city resident married individual who 6 makes a single return jointly with his or her spouse under subdivision 7 (b) of section 11-1751 of this chapter or a city resident head of house- 8 hold or a city resident surviving spouse, and on the city taxable income 9 of every city resident estate and trust shall be determined in accord- 10 ance with the following tables: 11 (A) For taxable years beginning after nineteen hundred eighty-nine and 12 before nineteen hundred ninety-five: 13 If the city taxable income is: The tax surcharge is: 14 Not over $9,000 0 15 Over $9,000 but not over $15,000 0.51% of city taxable income in 16 excess of $9,000 17 Over $15,000 but not over $25,000 $31 plus 0.55% of excess over 18 $15,000 19 Over $25,000 but not over $60,000 $86 plus 0.51% of excess over 20 $25,000 21 Over $60,000 $264 plus 0.51% of excess over 22 $60,000 23 (B) For taxable years beginning after nineteen hundred ninety-four but 24 before nineteen hundred ninety-nine: 25 If the city taxable income is: The tax surcharge is: 26 Not over $8,400 0 27 Over $8,400 but not over $15,000 0.51% of city taxable income in 28 excess of $8,400 29 Over $15,000 but not over $25,000 $33 plus 0.55% of excess over 30 $15,000 31 Over $25,000 but not over $60,000 $88 plus 0.51% of excess over 32 $25,000 33 Over $60,000 $266 plus 0.51% of excess over 34 $60,000 35 (c) The tax surcharge imposed pursuant to this section shall be admin- 36 istered, collected and distributed by the commissioner of taxation and 37 finance in the same manner as the taxes imposed pursuant to sections 38 11-1701 and 11-1703 of this subchapter, and all of the provisions of 39 this chapter, including sections 11-1706, 11-1721 and 11-1773 of this 40 chapter, shall apply to the tax surcharge imposed by this section. 41 (d) (1) Notwithstanding subdivision (b) of this section, with respect 42 to taxable years beginning in nineteen hundred ninety-three, nineteen 43 hundred ninety-four, nineteen hundred ninety-five and nineteen hundred 44 ninety-six, the mayor shall, by August first of nineteen hundred nine- 45 ty-two, nineteen hundred ninety-four and nineteen hundred ninety-five, 46 and by September fifteenth of nineteen hundred ninety-three, transmit to 47 the commissioner of taxation and finance a certification setting forth 48 the percentage of non-achievement regarding the combined police 49 uniformed staffing level with respect to the fiscal year of the city 50 ending on the immediately preceding June thirtieth, provided, however, 51 that for the city fiscal year ending in nineteen hundred ninety-threeS. 8474 874 1 the percentage of non-achievement shall be determined by the combined 2 police uniformed staffing level existing on August thirtieth, nineteen 3 hundred ninety-three, and further provided for all such fiscal years 4 that the percentage of non-achievement shall be calculated according to 5 the procedure specified in a memorandum of understanding relating to the 6 New York city safe streets-safe city program and to the enactment of 7 this subdivision dated February eleventh, nineteen hundred ninety-one, 8 as amended, and executed by the governor, the temporary president of the 9 senate, the speaker of the assembly, the minority leader of the senate, 10 the minority leader of the assembly, the mayor and the speaker of the 11 city council, any modification of such memorandum of understanding 12 subsequently agreed upon by all such signatories in a single subsequent 13 memorandum of understanding. If such percentage of non-achievement is 14 equal to or exceeds twenty-five percent with respect to the fiscal year 15 of the city of New York ending in nineteen hundred ninety-two, twenty 16 percent with respect to the city fiscal year ending in nineteen hundred 17 ninety-three or five percent with respect to the city fiscal years 18 ending in nineteen hundred ninety-four and nineteen hundred ninety-five, 19 then the rates of the tax surcharge imposed by this section for taxable 20 years beginning in the calendar year beginning on January first next 21 succeeding such August first or September fifteenth shall be the 22 products of the rates set forth in subdivision (b) of this section and a 23 percentage equal to the difference between one hundred percent and such 24 percentage of non-achievement, such products computed to the nearest 25 hundredth of a percent, and the dollar denominated amounts of the tax 26 surcharge set forth in subdivision (b) of this section shall be reduced 27 conformably. 28 (2) Notwithstanding subdivision (b) of this section, with respect to 29 the taxable year beginning in nineteen hundred ninety-eight, the mayor 30 shall, by August first of nineteen hundred ninety-seven, transmit to the 31 state commissioner of taxation and finance a certification setting forth 32 the percentage of non-achievement regarding the police uniformed staff- 33 ing level with respect to the fiscal year ending on the immediately 34 preceding June thirtieth, provided, however, that such percentage of 35 non-achievement shall be calculated according to the procedure specified 36 in a new memorandum of understanding relating to the enactment of this 37 paragraph dated no later than thirty days after such enactment, as 38 executed by the governor, the temporary president of the senate, the 39 speaker of the assembly, the minority leader of the senate, the minority 40 leader of the assembly, the mayor and the speaker of the city council 41 and any modifications of such new memorandum of understanding subse- 42 quently agreed upon by all such signatories in a single subsequent memo- 43 randum of understanding. If such percentage of non-achievement exceeds 44 two percent with respect to the fiscal year of the city ending in nine- 45 teen hundred ninety-seven, then the rates of the tax surcharge author- 46 ized by this section for the taxable years beginning in the calendar 47 year beginning on January first, nineteen hundred ninety-eight shall be 48 the products of the rates set forth in subdivision (b) of this section 49 and a percentage equal to the difference between one hundred percent and 50 the portion of the percentage of non-achievement that is in excess of 51 two percent, such products computed to the nearest hundredth of a 52 percent, and the dollar denominated amounts of the tax surcharge set 53 forth in subdivision (b) of this section shall be reduced conformably. 54 (3) If the rates of the surcharge imposed by this section are modified 55 pursuant to paragraph one or paragraph two of this subdivision, theS. 8474 875 1 state commissioner of taxation and finance shall promulgate regulations 2 stating the modified rates. 3 (e) Notwithstanding anything in this section or section 11-1798 of 4 this chapter to the contrary, of the total revenue, including interest 5 and penalties, from the tax surcharge imposed by this section which the 6 state comptroller is required to pay, after June thirtieth, nineteen 7 hundred ninety-two, to the chief fiscal officer of the city for payment 8 into the treasury of the city, one hundred ten million dollars thereof 9 paid to the chief fiscal officer during the fiscal year of the city 10 commencing July first, nineteen hundred ninety-two, two hundred million 11 dollars thereof paid to the chief fiscal officer during the fiscal year 12 of the city commencing July first, nineteen hundred ninety-three, one 13 hundred sixty-seven million dollars thereof paid to the chief fiscal 14 officer during the fiscal year of the city commencing July first, nine- 15 teen hundred ninety-four, and one hundred eighty-five million dollars 16 thereof paid to the chief fiscal officer during the fiscal year of the 17 city commencing July first, nineteen hundred ninety-five, shall be cred- 18 ited to and deposited in the criminal justice account established within 19 the general fund of the city for the implementation of the safe streets- 20 safe city program. The balance of such revenue shall be credited to the 21 general fund of the city and shall be applied exclusively to or in aid 22 or support of the city's provision of criminal justice and fire 23 protection services. 24 (f) Notwithstanding anything in this article to the contrary, of the 25 total revenue, including interest and penalties, from the tax surcharge 26 imposed pursuant to the authority of this section which the state comp- 27 troller is required to pay to the chief fiscal officer of the city for 28 payment into the treasury of the city, ninety million dollars thereof 29 paid to such chief fiscal officer during the fiscal year of the city 30 commencing during calendar year nineteen hundred ninety-six, and one 31 hundred eighty-five million dollars thereof paid to such chief fiscal 32 officer during the fiscal year of the city commencing during calendar 33 year nineteen hundred ninety-seven, shall be credited to and deposited 34 in a criminal justice account established by the city within its general 35 fund. The balance of such revenue from such tax surcharge which the 36 state comptroller is required to pay to such chief fiscal officer for 37 payment into the treasury of the city for the taxable years beginning in 38 the calendar years beginning on January first, nineteen hundred ninety- 39 seven and January first, nineteen hundred ninety-eight shall be credited 40 to the general fund of the city to be applied exclusively to or in aid 41 or support of the city's provision of criminal justice and fire 42 protection services; provided however, that, notwithstanding the forego- 43 ing, such balance shall be applied to implementation of the capital 44 program for public schools within the city and a supplemental capital 45 rehabilitation program for such schools, to the extent that such appli- 46 cation is necessary for the timely implementation of such programs in 47 accordance with the memorandum of understanding executed pursuant to 48 paragraph two of subdivision (d) of this section and any modifications 49 thereto. 50 § 11-1704.1 Additional tax. (a) (1) In addition to any other taxes 51 imposed by this chapter, there is hereby imposed for each taxable year 52 beginning after nineteen hundred ninety but before two thousand twenty- 53 seven, an additional tax on the city taxable income of every city resi- 54 dent individual, estate and trust, to be calculated for each taxable 55 year as follows: (i) for each taxable year beginning after nineteen 56 hundred ninety but before nineteen hundred ninety-nine, at the rate ofS. 8474 876 1 fourteen percent of the sum of the taxes for each such taxable year 2 determined pursuant to section 11-1701 and section 11-1704 of this 3 subchapter; and (ii) for each taxable year beginning after nineteen 4 hundred ninety-eight, at the rate of fourteen percent of the tax for 5 such taxable year determined pursuant to such section 11-1701 of this 6 subchapter. 7 (2) Notwithstanding paragraph one of this subdivision, for each taxa- 8 ble year beginning after two thousand but before two thousand two, the 9 additional tax shall be calculated as follows: (i) Resident married 10 individuals filing joint returns and resident surviving spouses. The 11 additional tax under this section for each taxable year on the tax 12 determined pursuant to section 11-1701 of this subchapter of every city 13 resident married individual who makes a single return jointly with his 14 or her spouse under subdivision (b) of section 11-1751 of this chapter 15 and on the tax determined pursuant to section 11-1701 of this subchapter 16 of every city resident surviving spouse shall be determined as follows: 17 (A) If the tax determined pursuant to section 11-1701 of this subchapter 18 is based on city taxable income equal to or less than ninety thousand 19 dollars, then the additional tax shall be 5.25% of such tax; (B) If the 20 tax determined pursuant to section 11-1701 of this subchapter is based 21 on city taxable income over ninety thousand dollars, then the additional 22 tax shall be the sum of 5.25% of such tax on city taxable income up to 23 and including ninety thousand dollars and 12.25% of such tax on city 24 taxable income in excess of ninety thousand dollars. 25 (ii) Resident heads of households. The additional tax under this 26 section for each taxable year on the tax determined pursuant to section 27 11-1701 of this subchapter of every city resident head of a household 28 shall be determined as follows: (A) If the tax determined pursuant to 29 section 11-1701 of this subchapter is based on city taxable income equal 30 to or less than sixty thousand dollars, then the additional tax shall be 31 5.25% of such tax; (B) If the tax determined pursuant to section 11-1701 32 of this subchapter is based on city taxable income over sixty thousand 33 dollars, then the additional tax shall be the sum of 5.25% of such tax 34 on city taxable income up to and including sixty thousand dollars and 35 12.25% of such tax on city taxable income in excess of sixty thousand 36 dollars. 37 (iii) Resident unmarried individuals, resident married individuals 38 filing separate returns and resident estates and trusts. The additional 39 tax under this section for each taxable year on the tax determined 40 pursuant to section 11-1701 of this subchapter of every city resident 41 individual who is not a married individual who makes a single return 42 jointly with his or her spouse under subdivision (b) of section 11-1751 43 of this chapter or a city resident head of a household or a city resi- 44 dent surviving spouse, and on the tax determined pursuant to section 45 11-1701 of this subchapter of every city resident estate and trust shall 46 be determined as follows: (A) If the tax determined pursuant to section 47 11-1701 of this subchapter is based on city taxable income equal to or 48 less than fifty thousand dollars, then the additional tax shall be 5.25% 49 of such tax; (B) If the tax determined pursuant to section 11-1701 of 50 this subchapter is based on city taxable income over fifty thousand 51 dollars, then the additional tax shall be the sum of 5.25% of such tax 52 on city taxable income up to and including fifty thousand dollars and 53 12.25% of such tax on city taxable income in excess of fifty thousand 54 dollars. 55 (b) The additional tax imposed pursuant to this section shall be 56 administered, collected and distributed by the commissioner of taxationS. 8474 877 1 and finance in the same manner as the other taxes imposed pursuant to 2 this chapter, and all of the provisions of this chapter, including 3 sections 11-1706, 11-1721 and 11-1773, shall apply to the additional tax 4 imposed by this section. 5 § 11-1705 General provisions and definitions. (a) Accounting periods 6 and methods. (1) Accounting periods. A taxpayer's taxable year under 7 this chapter shall be the same as his or her taxable year for federal 8 income tax purposes. 9 (2) Change of accounting periods. If a taxpayer's taxable year is 10 changed for federal income tax purposes, his or her taxable year for 11 purposes of this chapter shall be similarly changed. If a taxable year 12 of less than twelve months results from a change of taxable year, the 13 city standard deduction and the city exemptions shall be prorated under 14 regulations of the tax commission. 15 (3) Accounting methods. A taxpayer's method of accounting under this 16 chapter shall be the same as his or her method of accounting for federal 17 income tax purposes. In the absence of any method of accounting for 18 federal income tax purposes, city taxable income shall be computed under 19 such method as in the opinion of the tax commission clearly reflects 20 income. 21 (4) Change of accounting methods. (A) If a taxpayer's method of 22 accounting is changed for federal income tax purposes, his or her method 23 of accounting for purposes of this chapter shall be similarly changed. 24 (B) If a taxpayer's method of accounting is changed, other than from 25 an accrual to an installment method, any additional tax which results 26 from adjustments determined to be necessary solely by reason of the 27 change shall not be greater than if such adjustments were ratably allo- 28 cated and included for the taxable year of the change and the preceding 29 taxable years, not in excess of two, during which the taxpayer used the 30 method of accounting from which the change is made. 31 (C) If a taxpayer's method of accounting is changed from an accrual to 32 an installment method, any additional tax for the year of such change of 33 method and for any subsequent year which is attributable to the receipt 34 of installment payments properly accrued in a prior year, shall be 35 reduced by the portion of tax for any prior taxable year attributable to 36 the accrual of such installment payments, in accordance with regulations 37 of the tax commission. 38 (b) City resident and city nonresident defined. (1) City resident 39 individual. A city resident individual means an individual: 40 (A) who is domiciled in this city, unless (i) the taxpayer maintains 41 no permanent place of abode in this city, maintains a permanent place of 42 abode elsewhere, and spends in the aggregate not more than thirty days 43 of the taxable year in this city, or (ii) (I) within any period of five 44 hundred forty-eight consecutive days the taxpayer is present in a 45 foreign country or countries for at least four hundred fifty days, and 46 (II) during the period of five hundred forty-eight consecutive days the 47 taxpayer, the taxpayer's spouse, unless such spouse is legally sepa- 48 rated, and the taxpayer's minor children are not present in this city 49 for more than ninety days, and (III) during any period of less than 50 twelve months, which would be treated as a separate taxable period 51 pursuant to section 11-1754 of this chapter, and which period is 52 contained within the period of five hundred forty-eight consecutive 53 days, the taxpayer is present in this city for a number of days which 54 does not exceed an amount which bears the same ratio to ninety as the 55 number of days contained in that period of less than twelve months bears 56 to five hundred forty-eight, orS. 8474 878 1 (B) who maintains a permanent place of abode in this city and spends 2 in the aggregate more than one hundred eighty-three days of the taxable 3 year in this city, whether or not domiciled in this city for any portion 4 of the taxable year, unless such individual is in active service in the 5 armed forces of the United States. 6 (2) City nonresident individual. A city nonresident individual means 7 an individual who is not a city resident. 8 (3) City resident estate or trust. A city resident estate or trust 9 means: 10 (A) the estate of a decedent who at his or her death was domiciled in 11 this city, 12 (B) a trust, or a portion of a trust, consisting of property trans- 13 ferred by will of a decedent who at his or her death was domiciled in 14 this city, or 15 (C) a trust, or portion of a trust, consisting of the property of: 16 (i) a person domiciled in this city at the time such property was 17 transferred to the trust, if such trust or portion of a trust was then 18 irrevocable, or if it was then revocable and has not subsequently become 19 irrevocable; or 20 (ii) a person domiciled in this city at the time such trust, or 21 portion of a trust, became irrevocable, if it was revocable when such 22 property was transferred to the trust but has subsequently become irrev- 23 ocable. 24 For the purposes of this paragraph, a trust or portion of a trust is 25 revocable if it is subject to a power, exercisable immediately or at any 26 future time, to revest title in the person whose property constitutes 27 such trust or portion of a trust, and a trust or portion of a trust 28 becomes irrevocable when the possibility that such power may be exer- 29 cised has been terminated. 30 (D) (i) Provided, however, a resident trust is not subject to tax 31 under this article if all of the following conditions are satisfied: 32 (I) all the trustees are domiciled outside the city of New York; (II) 33 the entire corpus of the trusts, including real and tangible property, 34 is located outside the city of New York; and (III) all income and gains 35 of the trust are derived from or connected with sources outside of the 36 city of New York, determined as if the trust were a non-resident trust. 37 (ii) For purposes of item (II) of clause (i) of this subparagraph, 38 intangible property shall be located in this city if one or more of the 39 trustees are domiciled in the city of New York. 40 (iii) Provided further, that for the purposes of item (I) of clause 41 (i) of this subparagraph, a trustee which is a banking corporation as 42 defined in subdivision (a) of section 11-640 of this title and which is 43 domiciled outside the city of New York at the time it becomes a trustee 44 of the trust shall be deemed to continue to be a trustee domiciled 45 outside the city of New York notwithstanding that it thereafter other- 46 wise becomes a trustee domiciled in the city of New York by virtue of 47 being acquired by, or becoming an office or branch of, a corporate trus- 48 tee domiciled within the city of New York. 49 For the purposes of this subparagraph, a trust or portion of a trust 50 is revocable if it is subject to a power, exercisable immediately or at 51 any future time, to revest title in the person whose property consti- 52 tutes such trust or portion of a trust, and a trust or portion of a 53 trust becomes irrevocable when the possibility that such power may be 54 exercised has been terminated.S. 8474 879 1 (4) City nonresident estate or trust. A city nonresident estate or 2 trust means an estate or trust which is not a city resident estate or 3 trust. 4 (5) Cross reference. For effect of a change of resident status, see 5 section 11-1754 of this chapter. 6 § 11-1706 Credits against tax. (a) Credit relating to net capital 7 gain. For taxable years beginning in nineteen hundred eighty-seven, a 8 credit against the tax imposed under section 11-1701 of this subchapter 9 shall be allowed. The amount of the credit shall be one-half of one 10 percent of net capital gain includible in city adjusted gross income for 11 the taxable year. The credit allowed by this subdivision shall not 12 exceed the tax imposed by section 11-1701 of this subchapter reduced by 13 the credits permitted under section 11-1721 of this chapter and subdivi- 14 sion (b) of this section. 15 (b) Household credit. (1) For taxable years beginning after nineteen 16 hundred eighty-six, a credit against the city personal income tax 17 imposed by section 11-1701 of this subchapter shall be allowed. The 18 credit, computed as described in paragraph two of this subdivision, 19 shall not exceed the tax imposed by section 11-1701 of this subchapter, 20 reduced by the credit permitted under section 11-1721 of this chapter. 21 (2) (A) For any individual who is not married nor the head of a house- 22 hold nor a surviving spouse, the amount of the credit shall be deter- 23 mined in accordance with the following table: 24 ------------------------------------------------------------------------ 25 If household gross The credit shall be: 26 income is: 27 For taxable years For taxable years 28 beginning after beginning after 29 1986 and before 1995 30 1996 31 ------------------------------------------------------------------------ 32 Not over $7,500 $15 $15 33 Over $7,500 but not over 34 $10,000 $10 $15 35 Over $10,000 but not over 36 $12,500 $0 $10 37 (B) For any husband and wife, head of household or surviving spouse, 38 the amount of the credit shall be determined by multiplying the number 39 of exemptions for which the taxpayer, or in the case of a husband and 40 wife, taxpayers, is entitled to a deduction for the taxable year for 41 federal income tax purposes under subsections (b) and (c) of section one 42 hundred fifty-one of the internal revenue code by the credit factor for 43 the taxable year as specified in the following table: 44 ------------------------------------------------------------------------ 45 If household gross The credit factor is: 46 income is: 47 For taxable years 48 beginning in 49 1987 1988 50 1989 For taxable years 51 through beginning after 52 1995 1995S. 8474 880 1 ------------------------------------------------------------------------ 2 Not over $12,500 $30 $50 $50 $30 3 Over $12,500 but not 4 over $15,000 $20 $40 $50 $30 5 Over $15,000 but not 6 over $17,500 $10 $20 $25 $25 7 Over $17,500 but not 8 over $20,000 $0 $15 $15 $15 9 Over $20,000 but not 10 over $22,500 $0 $0 $0 $10 11 (3) For purposes of this subdivision: 12 (A) "Household gross income" shall mean the aggregate federal adjusted 13 gross income of a household, as the term household is defined in subpar- 14 agraph (B) of this paragraph, for the taxable year. 15 (B) "Household" means a husband and wife, a head of household, a 16 surviving spouse, or an individual who is not married nor the head of a 17 household nor a surviving spouse nor a taxpayer with respect to whom a 18 deduction under subsection (c) of section one hundred fifty-one of the 19 internal revenue code is allowable to another taxpayer for the taxable 20 year. 21 (C) "Household gross income of a husband and wife" shall be the aggre- 22 gate of their federal adjusted gross incomes for the taxable year irre- 23 spective of whether joint or separate city income tax returns are filed. 24 Provided, however, that a husband or wife who is required to file a 25 separate city income tax return shall be permitted one-half the credit 26 otherwise allowed his or her household, except as limited by paragraph 27 one of this subdivision. 28 (D) "Household gross income" shall be computed in all cases as if each 29 member of the household were a resident for the entire taxable year. 30 (E) If a taxpayer changes his or her status during his or her taxable 31 year from resident to nonresident, or from nonresident to resident, the 32 household credit shall be prorated according to the number of months in 33 the period of residence. In the case of a husband and wife, if either or 34 both changes his or her status from resident to nonresident or from 35 nonresident to resident and separate returns are filed, the credit 36 computed for the entire year shall be divided first as provided in 37 subparagraph (C) of this paragraph and then prorated according to the 38 number of months in the period of residence. 39 (c) State school tax reduction credit. 40 (1) For taxable years beginning after nineteen hundred ninety-seven 41 and ending before two thousand sixteen, a state school tax reduction 42 credit shall be allowed as provided in the following tables. The credit 43 shall be allowed against the taxes authorized by this article reduced by 44 the credits permitted by this article. If the credit exceeds the tax as 45 so reduced, the taxpayer may receive, and the comptroller, subject to a 46 certificate of the commissioner, shall pay as an overpayment, without 47 interest, the amount of such excess. For purposes of this subdivision, 48 no credit shall be granted to an individual with respect to whom a 49 deduction under subsection (c) of section one hundred fifty-one of the 50 internal revenue code is allowable to another taxpayer for the taxable 51 year. 52 (2) The amount of the credit under this paragraph shall be determined 53 based upon the taxpayer's income as defined in subparagraph (ii) ofS. 8474 881 1 paragraph (b) of subdivision four of section four hundred twenty-five of 2 the real property tax law. For purposes of this paragraph, any taxpayer 3 under subparagraphs (A) and (B) of this paragraph with income of more 4 than two hundred fifty thousand dollars shall not receive a credit. 5 Beginning in the two thousand ten tax year and each tax year thereaft- 6 er through two thousand fifteen, the "more than two hundred fifty thou- 7 sand dollar" income limitation shall be adjusted by applying the 8 inflation factor set forth herein, and rounding each result to the near- 9 est multiple of one hundred dollars. The department shall establish the 10 income limitation to be associated with each subsequent tax year by 11 applying the inflation factor set forth herein to the figures that 12 define the income limitation that were applicable to the preceding tax 13 year, as determined pursuant to this subdivision, and rounding each 14 result to the nearest multiple of one hundred dollars. Such determi- 15 nation shall be made no later than March first, two thousand ten and 16 each year thereafter. 17 (A) Married individuals filing joint returns and surviving spouses. In 18 the case of a husband and wife who make a single return jointly and of a 19 surviving spouse: 20 For taxable years beginning: The credit shall be: 21 in 2001-2005 $125 22 in 2006 $230 23 in 2007-2008 $290 24 in 2009-2015 $125 25 (B) All others. In the case of an unmarried individual, a head of a 26 household or a married individual filing a separate return: 27 For taxable years beginning: The credit shall be: 28 in 2001-2005 $62.50 29 in 2006 $115 30 in 2007-2008 $145 31 in 2009-2015 $62.50 32 (4) Husband and wife who make a joint return. If a husband and wife 33 make a single return jointly, the credit under this subdivision shall be 34 determined under paragraph two of this subdivision, if either of them 35 has attained the age of sixty-five on or before the close of the taxable 36 year. 37 (5) Part-year residents. If a taxpayer changes status during the taxa- 38 ble year from resident to nonresident, or from nonresident to resident, 39 the state school tax reduction credit shall be prorated according to the 40 number of months in the period of residence. 41 (c) Credit for unincorporated business taxes paid. (1) A city resident 42 individual, estate or trust whose city adjusted gross income includes 43 income, gain, loss or deductions from one or more unincorporated busi- 44 nesses conducted by such city resident individual, estate or trust that 45 are subject to the tax imposed by chapter five of this title, or a 46 distributive share of income, gain, loss and deductions of, or guaran- 47 teed payments from, one or more partnerships that are subject to the tax 48 imposed by such chapter, shall be allowed a credit as provided in para- 49 graph two of this subdivision against the tax otherwise due under 50 sections 11-1701, 11-1703, 11-1704 and 11-1704.1 of this subchapter. 51 (2) (A) Subject to the limitation set forth in subparagraph (B) of 52 this paragraph, the credit allowed to a taxpayer for a taxable year 53 under this subdivision shall be determined as follows: 54 (i) For taxable years beginning on or after January first, nineteen 55 hundred ninety-seven and before January first, two thousand seven:S. 8474 882 1 (I) If the city taxable income is forty-two thousand dollars or less, 2 the credit shall be sixty-five percent of the amount determined in para- 3 graph three of this subdivision. 4 (II) If the city taxable income is greater than forty-two thousand 5 dollars but not greater than one hundred forty-two thousand dollars, the 6 amount of the credit shall be a percentage of the amount determined in 7 paragraph three of this subdivision, such percentage to be determined by 8 subtracting from sixty-five percent, one-tenth of a percentage point 9 (.001) for every increment of two hundred dollars, or fractional part 10 thereof, of city taxable income in excess of forty-two thousand dollars. 11 (III) If the city taxable income is greater than one hundred forty-two 12 thousand dollars, the credit shall be fifteen percent of the amount 13 determined in paragraph three of this subdivision. 14 (ii) For taxable years beginning on or after January first, two thou- 15 sand seven: 16 (I) If the city taxable income is forty-two thousand dollars or less, 17 the credit shall be one hundred percent of the amount determined in 18 paragraph three of this subdivision. 19 (II) If the city taxable income is greater than forty-two thousand 20 dollars but less than one hundred forty-two thousand dollars, the amount 21 of the credit shall be a percentage of the amount determined in para- 22 graph three of this subdivision, such percentage to be determined by 23 subtracting from one hundred percent, a percentage determined by 24 subtracting forty-two thousand dollars from city taxable income, divid- 25 ing the result by one hundred thousand dollars and multiplying by seven- 26 ty-seven percent. 27 (III) If the city taxable income is one hundred forty-two thousand 28 dollars or greater, the credit shall be twenty-three percent of the 29 amount determined in paragraph three of this subdivision. 30 (B) Notwithstanding anything to the contrary in subparagraph (A) of 31 this paragraph, the credit allowed to a taxpayer for a taxable year 32 under this subdivision shall not exceed the sum of the taxes that would 33 otherwise be imposed by sections 11-1701, 11-1703, 11-1704 and 11-1704.1 34 of this subchapter on such taxpayer for such taxable year after the 35 allowance of any other credits allowed by this section or section 36 11-1721 of this chapter. 37 (3) Subject to the provisions of subparagraph (C) of this paragraph, 38 the amount determined in this paragraph is the sum of: 39 (A) for each unincorporated business conducted by the taxpayer, the 40 tax imposed by chapter five of this title on such unincorporated busi- 41 ness for its taxable year ending with the taxable year of the taxpayer 42 and paid by the unincorporated business; and 43 (B) for each unincorporated business in which the taxpayer is a part- 44 ner, the product of: 45 (i) the sum of (I) the tax imposed by chapter five of this title on 46 such unincorporated business for its taxable year ending within or with 47 the taxable year of the partner and paid by the unincorporated business 48 and (II) the amount of any credit or credits taken by the unincorporated 49 business under subdivision (j) of section 11-503 of this title for its 50 taxable year ending within or with the taxable year of the partner; and 51 (ii) a fraction, the numerator of which is the net total of the part- 52 ner's distributive share of income, gain, loss and deductions of, and 53 guaranteed payments from, the unincorporated business for such taxable 54 year, and the denominator of which is the sum, for such taxable year, of 55 the net total distributive shares of income, gain, loss and deductions 56 of, and guaranteed payments to, all partners in the unincorporated busi-S. 8474 883 1 ness for whom or which such net total, as separately determined for each 2 partner, is greater than zero. 3 (C) For a taxpayer that changes its status from a city resident to a 4 city nonresident or from a city nonresident to a city resident during 5 the taxable year: 6 (i) the amount determined in subparagraph (A) of this paragraph shall 7 be, with respect to each unincorporated business conducted by the 8 taxpayer, the tax imposed by chapter five of this title on such unincor- 9 porated business for its taxable year ending with the taxable year of 10 the taxpayer and paid by the unincorporated business, multiplied by a 11 fraction, the numerator of which is that portion of the income, gain, 12 loss and deductions of the unincorporated business included in the 13 taxpayer's adjusted gross income for the portion of the taxable year 14 during which the taxpayer was a city resident, and the denominator of 15 which is the total, for such taxable year, of the income, gain, loss and 16 deductions of the unincorporated business, and 17 (ii) the amount determined in clause (ii) of subparagraph (B) of this 18 paragraph shall be a fraction, the numerator of which is that portion of 19 the taxpayer's net total distributive share of income, gain, loss and 20 deductions of, and that portion of guaranteed payments from, the unin- 21 corporated business included in the taxpayer's city adjusted gross 22 income for the portion of the taxable year during which the taxpayer was 23 a city resident, and the denominator of which is the sum, for such taxa- 24 ble year, of the net total distributive shares of income, gain, loss and 25 deductions of, and guaranteed payments to, all partners in the unincor- 26 porated business, for whom or which such net total, as separately deter- 27 mined for each partner, is greater than zero. 28 (4) For purposes of subdivision (c) of section 11-1902 of this title, 29 in determining the amount of tax that a nonresident would be required to 30 pay if such nonresident were a resident of the city and subject to the 31 tax on personal income of residents, the credit allowed by this subdivi- 32 sion shall be taken into account. 33 (d) Earned income tax credit. (1) For taxable years beginning after 34 two thousand three, a credit against the city personal income tax shall 35 be allowed, equal to five percent of the earned income credit allowed 36 under section thirty-two of the internal revenue code for the same taxa- 37 ble year, and, for taxable years beginning after two thousand twenty- 38 one, a credit against the city personal income tax shall be allowed, 39 equal to a percentage determined pursuant to subparagraphs (A) through 40 (I) of this paragraph, of the earned income credit allowed under section 41 thirty-two of the internal revenue code for the same taxable year. For 42 purposes of this paragraph, "adjusted gross income" means New York 43 adjusted gross income as determined pursuant to article twenty-two of 44 the tax law. The percentage shall be: 45 (A) thirty percent, where the taxpayer's adjusted gross income for 46 such taxable year is less than five thousand dollars; 47 (B) thirty percent reduced by the product of two-tenths of a percent- 48 age point (0.002) and the amount of the taxpayer's adjusted gross income 49 for such taxable year in excess of four thousand nine hundred ninety- 50 nine dollars, where such taxpayer's adjusted gross income for such taxa- 51 ble year is equal to or greater than five thousand dollars and less than 52 seven thousand five hundred dollars; 53 (C) twenty-five percent, where the taxpayer's adjusted gross income 54 for such taxable year is equal to or greater than seven thousand five 55 hundred dollars and less than fifteen thousand dollars;S. 8474 884 1 (D) twenty-five percent reduced by the product of two-tenths of a 2 percentage point (0.002) and the amount of the taxpayer's adjusted gross 3 income for such taxable year in excess of fourteen thousand nine hundred 4 ninety-nine dollars, where such taxpayer's adjusted gross income for 5 such taxable year is equal to or greater than fifteen thousand dollars 6 and less than seventeen thousand five hundred dollars; 7 (E) twenty percent, where the taxpayer's adjusted gross income for 8 such taxable year is equal to or greater than seventeen thousand five 9 hundred dollars and less than twenty thousand dollars; 10 (F) twenty percent reduced by the product of two-tenths of a percent- 11 age point (0.002) and the amount of such taxpayer's adjusted gross 12 income for such taxable year in excess of nineteen thousand nine hundred 13 ninety-nine dollars, where the taxpayer's adjusted gross income for such 14 taxable year is equal to or greater than twenty thousand dollars and 15 less than twenty-two thousand five hundred dollars; 16 (G) fifteen percent, where the taxpayer's adjusted gross income for 17 such taxable year is equal to or greater than twenty-two thousand five 18 hundred dollars and less than forty thousand dollars; 19 (H) fifteen percent reduced by the product of two-tenths of a percent- 20 age point (0.002) and the amount of the taxpayer's adjusted gross income 21 for such taxable year in excess of thirty-nine thousand nine hundred 22 ninety-nine dollars, where such taxpayer's adjusted gross income for 23 such taxable year is equal to or greater than forty thousand dollars and 24 less than forty-two thousand five hundred dollars; and 25 (I) ten percent where the taxpayer's adjusted gross income for such 26 taxable year is equal to or greater than forty-two thousand five hundred 27 dollars. 28 (2) In the case of a resident taxpayer, the credit provided by this 29 subdivision shall be allowed against the taxes authorized by this chap- 30 ter for the taxable year reduced by the credits permitted by this chap- 31 ter. If the credit exceeds the tax as so reduced, the taxpayer may 32 receive, and the state comptroller, subject to a certificate of the 33 commissioner of the state department of taxation and finance, shall pay 34 as an overpayment, without interest, the amount of such excess. 35 (3) If a taxpayer changes his or her status during the taxable year 36 from city resident to city nonresident, or from city nonresident to city 37 resident, the credit determined under this subdivision shall be limited 38 to the amount determined by multiplying the amount of such credit by a 39 fraction, the numerator of which is such taxpayer's city adjusted gross 40 income, for the period of residence, and the denominator of which is 41 such taxpayer's city adjusted gross income determined as if he or she 42 were a city resident for the entire taxable year. City adjusted gross 43 income shall be adjusted as provided in section 11-1754 of this chapter. 44 The credit as so limited shall be applied as provided in paragraph two 45 of this subdivision. 46 (4) Subject to the provisions of paragraph three of this subdivision, 47 in the case of a husband and wife who file a joint return, but who are 48 required to determine their city personal income taxes separately, the 49 credit authorized pursuant to this subdivision may be applied against 50 the tax of either or divided between them as they may elect. In the case 51 of a husband and wife who are not required to file a federal return, the 52 credit under this subsection shall be allowed only if such taxpayers 53 file a joint city personal income tax return. 54 (5) If the state commissioner of taxation and finance determines that 55 the taxpayer is eligible to receive the credit provided under this 56 subdivision but has not claimed such credit on his or her return, theS. 8474 885 1 state commissioner of taxation and finance shall compute and issue any 2 refund for the allowable credit amount provided under this subdivision. 3 Any refund paid pursuant to this paragraph shall be deemed to be a 4 refund of an overpayment of tax as provided in section 11-1786 of this 5 chapter, provided, however, that no interest shall be paid thereon. 6 (e) Credit for certain household and dependent care services necessary 7 for gainful employment. (1) For taxable years beginning on or after 8 January first, two thousand seven, a taxpayer shall be allowed a credit 9 as provided herein equal to the applicable percentage of the credit 10 allowed under subsection (c) of section six hundred six of the tax law 11 with respect to qualifying individuals as defined in paragraph one of 12 subsection (b) of section twenty-one of the internal revenue code, with- 13 out regard to whether the taxpayer in fact claimed the credit under such 14 section twenty-one for the taxable year, who are dependents of the 15 taxpayer and who have not attained the age of four as of the end of the 16 taxable year. The applicable percentage shall be determined as follows: 17 (A) If household gross income as defined in subparagraph (A) of para- 18 graph three of subdivision (b) of this section is twenty-five thousand 19 dollars or less, the applicable percentage shall be seventy-five 20 percent. 21 (B) If such household gross income is greater than twenty-five thou- 22 sand dollars but not greater than thirty thousand dollars, the applica- 23 ble percentage shall be seventy-five percent multiplied by one minus a 24 fraction, the numerator of which is such household gross income less 25 twenty-five thousand dollars and the denominator of which is five thou- 26 sand dollars. 27 (C) If such household gross income is greater than thirty thousand 28 dollars, the applicable percentage shall be zero. 29 (2) The credit under this subdivision shall be allowed against the 30 taxes imposed by this chapter reduced by the credits permitted by this 31 chapter. If the credit exceeds the tax as so reduced, the taxpayer may 32 receive, and the state comptroller, subject to the certificate of the 33 state commissioner of taxation and finance, shall pay as an overpayment, 34 without interest, the amount of such excess, provided, however, in the 35 case of a taxpayer who is a part-year resident of New York city any such 36 overpayment under this paragraph shall be limited to the amount of such 37 excess multiplied by a fraction, the numerator of which is federal 38 adjusted gross income for the period of residence, computed as if the 39 taxable year for federal income tax purposes were limited to the period 40 of residence, and the denominator of which is federal adjusted gross 41 income for the taxable year. 42 (3) In the case of a husband and wife who filed a joint federal 43 return, but who are required to determine their New York city taxes 44 separately, the credit allowed pursuant to this subdivision may only be 45 applied against the tax imposed on the spouse with the lower taxable 46 income, computed without regard to such credit, provided, however, if 47 the spouse with the lower taxable income is a nonresident of the city, 48 no credit shall be allowed under this subdivision. In the case of a 49 husband and wife who are not required to file a federal return, the 50 credit under this subdivision shall be allowed only if such taxpayers 51 file a joint New York city income tax return. 52 (f) Credit for general corporation tax paid. (1) A city resident indi- 53 vidual, estate or trust whose city adjusted gross income includes a pro 54 rata share of income, loss and deductions described in paragraph one of 55 subsection (a) of section thirteen hundred sixty-six of the internal 56 revenue code, from one or more New York S corporations as defined inS. 8474 886 1 subdivision one-A of section two hundred eight of the tax law, or from 2 one or more QSSSs as defined in subdivision one-B of section two hundred 3 eight of the tax law, that are exempt QSSSs by reason of clause (A) of 4 subparagraph one of paragraph (k) of subdivision nine of section two 5 hundred eight of the tax law, on which a tax is imposed by subchapter 6 two of chapter six of this title, shall be allowed a credit as provided 7 in paragraph two of this subdivision against the tax otherwise due under 8 sections 11-1701, 11-1703, 11-1704 and 11-1704.1 of this chapter. 9 (2) (A) Subject to the limitations set forth in subparagraphs (B) and 10 (C) of this paragraph, the credit allowed to a taxpayer for a taxable 11 year under this subdivision shall be determined as follows: 12 (i) For taxable years beginning on or after January first, two thou- 13 sand fourteen and before July first, two thousand nineteen: 14 (I) If the city taxable income is thirty-five thousand dollars or 15 less, the amount of the credit shall be one hundred percent of the 16 amount determined in paragraph three of this subdivision. 17 (II) If the city taxable income is greater than thirty-five thousand 18 dollars but less than one hundred thousand dollars, the amount of the 19 credit shall be a percentage of the amount determined in paragraph three 20 of this subdivision, such percentage to be determined by subtracting 21 from one hundred percent, a percentage determined by subtracting thir- 22 ty-five thousand dollars from city taxable income, dividing the result 23 by sixty-five thousand dollars and multiplying by one hundred percent. 24 (III) If the city taxable income is one hundred thousand dollars or 25 greater, no credit shall be allowed. 26 (IV) Provided further that for any taxable year of a taxpayer for 27 which this credit is effective that encompasses days occurring after 28 June thirtieth, two thousand nineteen, the amount of the credit deter- 29 mined in item (I) or (II) of this clause shall be multiplied by a frac- 30 tion, the numerator of which is the number of days in the taxpayer's 31 taxable year occurring on or before June thirtieth, two thousand nine- 32 teen, and the denominator of which is the number of days in the taxpay- 33 er's taxable year. 34 (B) Notwithstanding anything to the contrary in subparagraph (A) of 35 this paragraph, the credit allowed to a taxpayer for a taxable year 36 under this subdivision shall not exceed the sum of the taxes that would 37 otherwise be imposed by sections 11-1701, 11-1703, 11-1704 and 11-1704.1 38 of this subchapter on such taxpayer for such taxable year after the 39 allowance of any other credits allowed by subdivisions (a), (b) and (c) 40 of this section, and section 11-1721 of this chapter. 41 (C) Notwithstanding anything to the contrary in subparagraph (A) of 42 this paragraph, no credit shall be allowed for any amount of tax 43 imposed, or credit allowed, by subchapter two of chapter six of this 44 title on, or to, a combined group of corporations including a New York S 45 corporation or an exempt QSSS, except where the combined group consists 46 exclusively of one or more New York S corporations and one or more 47 exempt QSSSs of such corporations as described in paragraph one of this 48 subdivision, provided that each of the New York S corporations included 49 in the group is wholly owned by the same interests and in the same 50 proportions as each other New York S corporation included in the group. 51 (3) Subject to the provisions of subparagraph (B) of this paragraph 52 and subparagraph (C) of paragraph two of this subdivision, the amount 53 determined in this paragraph is the sum of the taxpayer's pro rata share 54 of the amounts determined in subparagraph (A) of this paragraph for each 55 New York S corporation, or exempt QSSS, described in paragraph one of 56 this subdivision, a pro rata share of whose income, loss and deductionsS. 8474 887 1 described in paragraph one of subsection (a) of section thirteen hundred 2 sixty-six of the internal revenue code, is included in the taxpayer's 3 city adjusted gross income. 4 (A) The amount determined in this subparagraph is the sum of: 5 (i) the taxes imposed by subchapter two of chapter six of this title 6 on such corporation, or a combined group including such corporation, for 7 its taxable year ending within or with the taxable year of the taxpayer 8 and paid by such corporation, or combined group; and 9 (ii) the amount of any credit or credits taken by such corporation, or 10 a combined group including such corporation, under subdivision eighteen 11 of section 11-604 of this title for its taxable year ending within or 12 with the taxable year of the taxpayer. 13 (B) For purposes of this subdivision, the taxpayer's pro rata share of 14 the amount in subparagraph (A) of this paragraph for the taxable year 15 shall be the amount determined with respect to the taxpayer: 16 (i) by assigning an equal portion of the amount in subparagraph (A) of 17 this paragraph to each day of the corporation's taxable year on which 18 the corporation has shares outstanding, 19 (ii) then by dividing that portion pro rata among the shares outstand- 20 ing on that day; provided, however, 21 (iii) if the taxable year of such corporation for purposes of chapter 22 six of this title is different from its New York S year or S short year 23 as defined in subdivision one-A of section two hundred eight of the tax 24 law, only those portions that are assigned to days of the taxable year 25 that are also days of the New York S year or S short year shall be taken 26 into account in determining the shareholder's pro rata share of the 27 amount determined in subparagraph (A) of this paragraph. 28 (g) Credit for city pass-through entity tax. (1) A taxpayer who is a 29 partner or member of an electing city partnership and a taxpayer share- 30 holder of an electing city resident S corporation subject to tax under 31 article twenty-four-B of the tax law shall be entitled to a credit 32 against the tax imposed by such article. For purposes of this subdivi- 33 sion, the terms "electing city partnership," "electing city resident S 34 corporation," "city pass-through entity tax," and "direct share of city 35 pass-through entity tax" shall have the same meanings as used in article 36 twenty-four-B of the tax law. 37 (2) The amount of the credit shall be equal to the partner's, member's 38 or shareholder's direct share of the city pass-through entity tax. 39 (3) If a taxpayer is a partner, member or shareholder in more than one 40 electing city partnership and/or electing city resident S corporation 41 that is subject to tax pursuant to article twenty-four-B of the tax law, 42 the amount of the credit of such taxpayer shall be equal to the sum of 43 the amounts of such credits calculated pursuant to paragraph two of this 44 subdivision with regard to each entity in which such taxpayer has a 45 direct ownership interest. 46 (4) If the amount of the credit allowable pursuant to this subdivision 47 for any taxable year exceeds the tax due for such year pursuant to arti- 48 cle twenty-four-B of the tax law, the excess amount shall be treated as 49 an overpayment, to be credited or refunded, without interest. 50 (5) Limitation on credit. No credit shall be allowed to a taxpayer 51 under this subdivision unless the electing city partnership or electing 52 city resident S corporation provided sufficient information to identify 53 such taxpayer on its city pass-through entity tax return as required 54 under paragraph two of subsection (c) of section eight hundred seventy- 55 two of the tax law for an electing city partnership or paragraph two of 56 subsection (d) of section eight hundred seventy-two of the tax law forS. 8474 888 1 an electing city resident S corporation. The credit allowed to a taxpay- 2 er under this subdivision shall not exceed the direct share of city 3 pass-through entity tax reported by such electing city partnership or 4 electing city resident S corporation attributable to such taxpayer on 5 such electing city partnership's or such electing city resident S corpo- 6 ration's return filed pursuant to section eight hundred seventy-two of 7 the tax law. 8 § 11-1707 Meaning of terms. (a) General. Any term used in this chap- 9 ter shall have the same meaning as when used in a comparable context in 10 the laws of the United States relating to federal income taxes, unless a 11 different meaning is clearly required but such meaning shall be subject 12 to the exceptions or modifications prescribed in this chapter or by 13 statute. Any reference in this chapter to the laws of the United States 14 shall mean the provisions of the internal revenue code of nineteen 15 hundred eighty-six, unless a reference to the internal revenue code of 16 nineteen hundred fifty-four is clearly intended, and amendments thereto, 17 and other provisions of the laws of the United States relating to feder- 18 al income taxes, as the same may be or become effective at any time or 19 from time to time for the taxable year, as included and quoted in the 20 appendices, including any supplements and additions thereto, to this 21 chapter. Provided however, for taxable years beginning before January 22 first, two thousand twenty-two, any amendments made to the internal 23 revenue code of nineteen hundred eighty-six after March first, two thou- 24 sand twenty shall not apply to this chapter. Such quotation of the 25 aforesaid laws of the United States is intended to make them a part of 26 this chapter and to avoid constitutional uncertainties which might 27 result if such laws were merely incorporated by reference. The quotation 28 of a provision of the internal revenue code or of any other law of the 29 United States in such appendices shall not necessarily mean that it is 30 applicable or has relevance to this chapter. 31 (b) Marital or other status. An individual's marital or other status 32 under section 11-1701 of this chapter and section 11-1714 of this chap- 33 ter shall be the same as his or her marital or other status for purposes 34 of establishing the applicable federal income tax rates. 35 (c) "City" and "this city" as used in this chapter means the city of 36 Staten Island; "tax commission" as used in this chapter means the tax 37 commission of the state of New York; and "state" or "this state" as used 38 in this chapter means the state of New York. 39 SUBCHAPTER 2 40 RESIDENTS 41 § 11-1711 City taxable income of a city resident individual. (a) 42 General. The city taxable income of a city resident individual shall be 43 his or her city adjusted gross income less his or her city deduction and 44 city exemptions, as determined under this chapter. 45 (b) Husband and wife. 46 (1) If the federal taxable income of husband or wife, both of whom 47 are residents, is determined on a separate federal return, their city 48 taxable incomes shall be separately determined. 49 (2) If the federal taxable income of husband and wife, both of whom 50 are residents, is determined on a joint federal return, their city taxa- 51 ble income shall be determined jointly. 52 (3) If neither husband or wife, both of whom are residents, files a 53 federal return:S. 8474 889 1 (A) their tax shall be determined on their joint city taxable income, 2 or 3 (B) separate taxes may be determined on their separate city taxable 4 incomes if they both so elect. 5 (4) If either husband or wife is a resident and the other is a nonres- 6 ident, a separate tax shall be determined on the city taxable income of 7 the resident spouse on a separate form unless such husband and wife 8 determine their federal taxable income jointly and both elect to deter- 9 mine their joint city taxable income as if both were residents. 10 § 11-1712 City adjusted gross income of a city resident individual. 11 (a) General. The city adjusted gross income of a city resident indi- 12 vidual means his or her federal adjusted gross income as defined in the 13 laws of the United States for the taxable year, with the modifications 14 specified in this section. 15 (b) Modifications increasing federal adjusted gross income. There 16 shall be added to federal adjusted gross income: (1) Interest income 17 on obligations of any state other than this state, or of a political 18 subdivision of any other such state unless created by compact or agree- 19 ment to which this state is a party, to the extent not properly includi- 20 ble in federal adjusted gross income; 21 (2) Interest or dividend income on obligations or securities of any 22 authority, commission, or instrumentality of the United States, which 23 the laws of the United States exempt from federal income tax but not 24 from state income taxes; 25 (3) Income taxes. (A) General. Income taxes imposed by this state or 26 any other taxing jurisdiction, to the extent deductible in determining 27 federal adjusted gross income and not credited against federal income 28 tax. 29 (B) Shareholders of S corporations. In the case of a shareholder of an 30 S corporation, with respect to taxes imposed upon or payable by the 31 corporation, the term "income taxes" in subparagraph (A) of this para- 32 graph shall also include the tax imposed under article nine-A of the tax 33 law, regardless of the measure of such tax, but shall not otherwise 34 include taxes imposed by this or any other state of the United States, 35 or any political subdivision of this or any other state, or the District 36 of Columbia. 37 (4) Interest on indebtedness incurred or continued to purchase or 38 carry obligations or securities the interest on which is exempt from tax 39 under this chapter, to the extent deductible in determining federal 40 adjusted gross income. 41 (5) Expenses paid or incurred during the taxable year for: (i) the 42 production or collection of income which is exempt from tax under this 43 chapter, or (ii) the management, conservation or maintenance of property 44 held for the production of such income, and the amortizable bond premium 45 for the taxable year on any bond the interest on which is exempt from 46 tax under this chapter, to the extent that such expenses and premiums 47 are deductible in determining federal adjusted gross income. 48 (6) In the case of a taxpayer who has exercised the election permit- 49 ted by subdivision (g) or (h) of this section, the amount or amounts 50 required by said subdivisions to be added to federal adjusted gross 51 income. 52 (7) In the case of a taxpayer who is a shareholder of a corporation 53 organized under article fifteen or authorized to do business in this 54 state under article fifteen-A of the business corporation law, for the 55 taxpayer's taxable years beginning before nineteen hundred eighty-eight, 56 the amount which is deductible by such corporation under paragraph one,S. 8474 890 1 two or three of subsection (a) of section four hundred four of the 2 internal revenue code for its taxable year ending in or with such 3 taxpayer's taxable year for contributions paid on behalf of such taxpay- 4 er minus the lesser of fifteen thousand dollars or fifteen percent of 5 the earned income derived by such taxpayers from such corporation during 6 such taxpayer's taxable year. In the case of a taxpayer on whose behalf 7 contributions are paid under more than one plan to which this paragraph 8 applies or under a plan, contributions to which on his or her behalf are 9 subject to the limitations provided in subsection (e) of section four 10 hundred four of the internal revenue code, this paragraph shall apply 11 with respect to the aggregate of the contributions paid on his or her 12 behalf under all such plans. 13 (8) In the case of a taxpayer who is a shareholder of a corporation 14 organized under article fifteen or authorized to do business in this 15 state under article fifteen-A of the business corporation law, the 16 amount which is required to be paid as a tax by such corporation pursu- 17 ant to subsection (a) of section thirty-one hundred eleven of the inter- 18 nal revenue code with respect to the wages of such taxpayer for the 19 calendar year ending in or with such taxpayer's taxable year. 20 (10) The amount required to be added to federal adjusted gross income 21 pursuant to subdivision (i) of this section. 22 (14) The amount required to be added to federal adjusted gross income 23 pursuant to subdivision (1) of this section. 24 (15) The amount allowed as an exclusion or deduction for the special 25 additional mortgage recording taxes imposed by subdivision one-a of 26 section two hundred fifty-three of the tax law in determining federal 27 adjusted gross income for such taxable year. 28 (16) Unless the credit allowed pursuant to subsection (f) of section 29 six hundred six of the tax law is reflected in the computation of the 30 gain or loss so as to result in an increase in such gain or decrease in 31 such loss, for federal income tax purposes, from the sale or other 32 disposition of the property with respect to which the special additional 33 mortgage recording tax imposed pursuant to subdivision one-a of section 34 two hundred fifty-three of such law was paid, the amount of the special 35 additional mortgage recording tax imposed by subdivision one-a of 36 section two hundred fifty-three of such law which was paid and which is 37 reflected in the computation of the basis of the property so as to 38 result in a decrease in such gain or increase in such loss for federal 39 income tax purposes from the sale or other disposition of the property 40 with respect to which such tax was paid. 41 (17) The amount required to be added to federal adjusted gross income 42 pursuant to subdivision (r) of this section. 43 (18) In the case of a shareholder of an S corporation: (A) where the 44 election provided for in subsection (a) of section six hundred sixty of 45 the tax law is in effect with respect to such corporation, an amount 46 equal to his or her pro rata share of the corporation's reductions for 47 taxes described in paragraphs two and three of subsection (f) of section 48 thirteen hundred sixty-six of the internal revenue code, and 49 (B) in the case of a New York S termination year, subparagraph (A) of 50 this paragraph shall apply to the amount of reductions for taxes deter- 51 mined under subdivision (s) of this section. 52 (19) In the case of a shareholder of an S corporation: (A) where the 53 election provided for in subsection (a) of section six hundred sixty of 54 the tax law has not been made with respect to such corporation, any item 55 of loss or deduction of the corporation included in federal gross incomeS. 8474 891 1 pursuant to section thirteen hundred sixty-six of the internal revenue 2 code, and 3 (B) in the case of a New York S termination year, subparagraph (A) of 4 this paragraph shall apply to the amounts of loss or deduction deter- 5 mined under subdivision (s) of this section. 6 (20) S corporation distributions to the extent not included in federal 7 gross income for the taxable year because of the application of section 8 thirteen hundred sixty-eight, subsection (e) of section thirteen hundred 9 seventy-one or subsection (c) of section thirteen hundred seventy-nine 10 of the internal revenue code which represent income not previously 11 subject to tax under this chapter because the election provided for in 12 subsection (a) of section six hundred sixty of the tax law had not been 13 made. Any such distribution treated in the manner described in paragraph 14 two of subsection (b) of section thirteen hundred sixty-eight of the 15 internal revenue code for federal income tax purposes shall be treated 16 as ordinary income for purposes of this chapter. 17 (21) In relation to the disposition of stock or indebtedness of a 18 corporation which elected under subchapter s of chapter one of the 19 internal revenue code for any taxable year of such corporation begin- 20 ning, in the case of a corporation taxable under article nine-A of the 21 tax law, after December thirty-first, nineteen hundred eighty, the 22 amount required to be added to federal adjusted gross income pursuant to 23 subdivision (n) of this section. 24 (22) The amounts required to be added to federal adjusted gross income 25 pursuant to subdivision (q) of this section. 26 (23) For taxable years beginning after December thirty-first, nineteen 27 hundred eighty-one, except with respect to property which is a qualified 28 mass commuting vehicle described in subparagraph (D) of paragraph eight 29 of subsection (f) of section one hundred sixty-eight of the internal 30 revenue code, relating to qualified mass commuting vehicles, any amount 31 which the taxpayer claimed as a deduction in computing its federal 32 adjusted gross income solely as a result of an election made pursuant to 33 the provisions of such paragraph eight as it was in effect for agree- 34 ments entered into prior to January first, nineteen hundred eighty-four; 35 (24) For taxable years beginning after December thirty-first, nineteen 36 hundred eighty-one, except with respect to property which is a qualified 37 mass commuting vehicle described in subparagraph (D) of paragraph eight 38 of subsection (f) of section one hundred sixty-eight of the internal 39 revenue code, relating to qualified mass commuting vehicles, any amount 40 which the taxpayer would have been required to include in the computa- 41 tion of its federal adjusted gross income had it not made the election 42 permitted pursuant to such paragraph eight as it was in effect for 43 agreements entered into prior to January first, nineteen hundred eight- 44 y-four; 45 (25) For taxable years beginning after December thirty-first, nineteen 46 hundred eighty-one, except with respect to recovery property subject to 47 the provisions of section two hundred eighty-F of the internal revenue 48 code and recovery property placed in service in this state in taxable 49 years beginning after December thirty-first, nineteen hundred eighty- 50 four, the amount allowable as a deduction under section one hundred 51 sixty-eight of the internal revenue code; 52 (25) In the case of property placed in service in taxable years begin- 53 ning before nineteen hundred ninety-four, for taxable years beginning 54 after December thirty-first, nineteen hundred eighty-one, except with 55 respect to property subject to the provisions of section two hundred 56 eighty-F of the internal revenue code and property subject to theS. 8474 892 1 provisions of section one hundred sixty-eight of the internal revenue 2 code which is placed in service in this state in taxable years beginning 3 after December thirty-first, nineteen hundred eighty-four, the amount 4 allowable as a deduction determined under section one hundred sixty- 5 eight of the internal revenue code. 6 (26) The amount of member or employee contributions to a retirement 7 system or pension fund picked up or paid by the employer pursuant to 8 subdivision f of section five hundred seventeen or subdivision d of 9 section six hundred thirteen of the retirement and social security law 10 or section 13-225.1, 13-327.1, 13-125.1, 13-125.2 or 13-521.1 of title 11 thirteen of the code of the preceding municipality or subdivision nine- 12 teen of section twenty-five hundred seventy-five of the education law. 13 (26-a) The amount of member or employee contributions to a retirement 14 system or pension fund picked up or paid by the employer for members of 15 the Manhattan and Bronx surface transportation authority pension plan 16 and treated as employer contributions in determining income tax treat- 17 ment under subdivision (h) of section four hundred fourteen of the 18 Internal Revenue Code. 19 (27) Upon the disposition of recovery property to which paragraph 20 twenty-six of subdivision (c) of this section applies, the amount, if 21 any, by which the aggregate of the modifications described in such para- 22 graph twenty-six attributable to such property exceeds the aggregate of 23 the modifications described in paragraph twenty-five of this subdivision 24 attributable to such property; and 25 (27) Upon the disposition of property to which paragraph twenty-six of 26 subdivision (c) of this section applies, the amount, if any, by which 27 the aggregate of the modifications described in such paragraph twenty- 28 six attributable to such property exceeds the aggregate of the modifica- 29 tions described in paragraph twenty-five of this subdivision attribut- 30 able to such property. 31 (29) When gain from the sale or other disposition of property is 32 included in federal gross income, the amount of reduction in the basis 33 of such property attributable to credit for solar and wind energy 34 systems pursuant to paragraph nine of subsection (g) of section six 35 hundred six of the tax law; but for taxable years beginning before nine- 36 teen hundred eighty-seven, if such gain affects the determination of a 37 net capital gain for federal income tax purposes, forty percent of such 38 amount. 39 (31) The amount deducted or deferred from an employee's salary under a 40 flexible benefits program established pursuant to section twenty-three 41 of the general municipal law or section one thousand two hundred ten-a 42 of the public authorities law. 43 (32) The amount by which an employee's salary is reduced pursuant to 44 the provisions of subdivision b of section 12-126.1 and subdivision b of 45 section 12-126.2 of the code of the preceding municipality. 46 (33) Real property taxes paid on qualified agricultural property and 47 deducted in determining federal adjusted gross income, to the extent of 48 the amount of the agricultural property tax credit allowed under 49 subsection (n) or (i) of section six hundred six of the tax law. 50 (34) The amount of any deduction allowed pursuant to section one 51 hundred ninety-nine of the internal revenue code. 52 (35) The amount of any federal deduction for taxes imposed under arti- 53 cle twenty-three of the tax law. 54 (36) In the case of a beneficiary of a trust that, in any tax year 55 after its creation including its first tax year, was not subject to tax 56 pursuant to subparagraph (D) of paragraph three of subdivision (b) ofS. 8474 893 1 section 11-1705 of this chapter, except for an incomplete gift non-gran- 2 tor trust, as defined by paragraph thirty-seven of this subdivision, the 3 amount described in the first sentence of section six hundred sixty-sev- 4 en of the internal revenue code for the tax year to the extent not 5 already included in federal gross income for the tax year, except that, 6 in computing the amount to be added under this paragraph, such benefici- 7 ary shall disregard (i) subsection (c) of section six hundred sixty-five 8 of the internal revenue code; (ii) the income earned by such trust in 9 any tax year in which the trust was subject to tax under this article; 10 and (iii) the income earned by such trust in a taxable year prior to 11 when the beneficiary first became a resident of the city or in any taxa- 12 ble year starting before January first, two thousand fourteen. Except 13 as otherwise provided in this paragraph, all of the provisions of the 14 internal revenue code that are relevant to computing the amount 15 described in the first sentence of subsection (a) of section six hundred 16 sixty-seven of the internal revenue code shall apply to the provisions 17 of this paragraph with the same force and effect as if the language of 18 those internal revenue code provisions had been incorporated in full 19 into this paragraph, except to the extent that any such provision is 20 either inconsistent with or not relevant to this paragraph. 21 (37) In the case of a taxpayer who transferred property to an incom- 22 plete gift non-grantor trust, the income of the trust, less any 23 deductions of such trust, to the extent such income and deductions of 24 such trust would be taken into account in computing the taxpayer's 25 federal taxable income if such trust in its entirety were treated as a 26 grantor trust for federal tax purposes. For purposes of this paragraph, 27 an "incomplete gift non-grantor trust" means a resident trust that meets 28 the following conditions: (i) the trust does not qualify as a grantor 29 trust under section six hundred seventy-one through six hundred seven- 30 ty-nine of the internal revenue code, and (ii) the grantor's transfer of 31 assets to the trust is treated as an incomplete gift under section twen- 32 ty-five hundred eleven of the internal revenue code, and the regulations 33 thereunder. 34 (38) The amount contributed to any or all of the following accounts 35 within the charitable gifts trust fund set forth in section ninety-two- 36 gg of the state finance law, to the extent the amount is claimed as an 37 itemized deduction pursuant to section six hundred fifteen of the tax 38 law: the health charitable account established by paragraph a of subdi- 39 vision four of section ninety-two-gg of the state finance law, or the 40 elementary and secondary education charitable account established by 41 paragraph b of subdivision four of section ninety-two-gg of the state 42 finance law. 43 (39) The amount of any gain excluded from federal gross income for the 44 taxable year by subparagraph (A) of paragraph (1) of subsection (a) of 45 section one thousand four hundred-Z-two of the internal revenue code. 46 (c) Modifications reducing federal adjusted gross income. There 47 shall be subtracted from federal adjusted gross income: 48 (1) Interest income on obligations of the United States and its 49 possessions to the extent includible in gross income for federal income 50 tax purposes; such interest income shall include the amount received as 51 dividends from a regulated investment company, as defined in section 52 eight hundred fifty-one of the internal revenue code, which has been 53 designated as the amount of such interest income in a written notice to 54 shareholders not later than sixty days following the close of its taxa- 55 ble year; provided that, at the close of each quarter of the taxable 56 year of such regulated investment company, at least fifty percent of theS. 8474 894 1 value of its total assets, as defined in subsection (c) of section eight 2 hundred fifty-one of the internal revenue code, consists of obligations 3 of the United States and its possessions. The aggregate amount so desig- 4 nated by the regulated investment company for its taxable year shall not 5 exceed the amount determined by multiplying the total distributions paid 6 by such regulated investment company to its shareholders with respect to 7 that taxable year, attributable to income earned in that year, including 8 any such distributions paid after the close of the taxable year, as 9 described in section eight hundred fifty-five of the internal revenue 10 code, by the ratio that the interest income received in that taxable 11 year on obligations of the United States and its possessions, after 12 reduction for the deductions and expenses directly or indirectly attrib- 13 utable thereto, bears to the investment company taxable income of such 14 regulated investment company for such taxable year, determined without 15 regard to subparagraph (D) of paragraph two of subsection (b) of section 16 eight hundred fifty-two of the internal revenue code; 17 (2) Interest or dividend income on obligations or securities of any 18 authority, commission or instrumentality of the United States to the 19 extent includible in gross income for federal income tax purposes but 20 exempt from state income taxes under the laws of the United States; 21 (3) (i) Pensions to officers and employees of this state, its subdivi- 22 sions and agencies, to the extent includible in gross income for federal 23 income tax purposes; 24 (ii) Pensions to officers and employees of the United States of Ameri- 25 ca, any territory or possession or political subdivision of such terri- 26 tory or possession, the District of Columbia, or any agency or instru- 27 mentality of such, to the extent includible in gross income for federal 28 income tax purposes; 29 (3-a) Pensions and annuities received by an individual who has 30 attained the age of fifty-nine and one-half, not otherwise excluded 31 pursuant to paragraph three of this subdivision, to the extent includi- 32 ble in gross income for federal income tax purposes, but not in excess 33 of twenty thousand dollars, which are periodic payments attributable to 34 personal services performed by such individual prior to his or her 35 retirement from employment, which arise: (i) from an employer-employee 36 relationship or (ii) from contributions to a retirement plan which are 37 deductible for federal income tax purposes. However, the term "pensions 38 and annuities" shall also include distributions received by an individ- 39 ual who has attained the age of fifty-nine and one-half from an individ- 40 ual retirement account or an individual retirement annuity, as defined 41 in section four hundred eight of the internal revenue code, and distrib- 42 utions received by an individual who has attained the age of fifty-nine 43 and one-half from self-employed individual and owner-employee retirement 44 plans which qualify under section four hundred one of the internal 45 revenue code, whether or not the payments are periodic in nature. Never- 46 theless, the term "pensions and annuities" shall not include any lump 47 sum distribution, as defined in subparagraph (A) of paragraph four of 48 subsection (e) of section four hundred two of the internal revenue code 49 and taxed under section six hundred three of the tax law. Where a 50 husband and wife file a joint city personal income tax return, the 51 modification provided for in this paragraph shall be computed as if they 52 were filing separate city personal income tax returns. Where a payment 53 would otherwise come within the meaning of the term "pensions and annui- 54 ties" as set forth in this paragraph except that such individual is 55 deceased, such payment shall, nevertheless, be treated as a pension orS. 8474 895 1 annuity for purposes of this paragraph if such payment is received by 2 such individual's beneficiary. 3 (3-b) (i) Disability income included in federal gross income, to the 4 extent that such disability income would have been excluded from federal 5 gross income pursuant to the provisions of subsection (d) of section one 6 hundred five of the internal revenue code of nineteen hundred fifty-four 7 had such provisions continued in effect for taxable years commencing 8 after December thirty-first, nineteen hundred eighty-three as they were 9 in effect immediately prior to the repeal of such subsection. Notwith- 10 standing the provisions of this subparagraph, the sum of disability 11 income excluded pursuant to this paragraph, and pension and annuity 12 income excluded pursuant to paragraph three-a of this subdivision, shall 13 not exceed twenty thousand dollars. 14 (ii) Notwithstanding subdivision (f) of this section, if a husband and 15 wife determine their federal income tax on a joint return but are 16 required to determine their city income taxes separately, the amounts of 17 exclusion allowed under subparagraph (i) of this paragraph shall be 18 determined in the same joint manner as such amounts would have been 19 determined under the provisions of paragraph five of subsection (d) of 20 section one hundred five of the internal revenue code as such provisions 21 were in effect immediately prior to the repeal of such subsection, but 22 shall be attributed for city income tax purposes to the spouse who would 23 have been required to report any such amount as income if the spouses 24 had determined their federal income taxes separately. 25 (iii) Where a husband and wife file a joint city income tax return, 26 the twenty thousand dollar limitation provided in subparagraph (i) of 27 this paragraph shall be applied as if they were filing separate city 28 income tax returns. 29 (3-c) Social security benefits to the extent includible in gross 30 income for federal income tax purposes pursuant to section eighty-six of 31 the internal revenue code. 32 (4) The portion of any gain, from the sale or other disposition of 33 property having a higher adjusted basis for New York state income tax 34 purposes than for federal income tax purposes on the last day of the 35 last taxable year for which article sixteen of the tax law imposes tax, 36 that does not exceed such difference in basis. 37 (5) The amount necessary to prevent the taxation under this chapter 38 of any annuity or other amount of income or gain which was properly 39 included in income or gain and was taxable under article sixteen of the 40 tax law to the taxpayer, or to a decedent by reason of whose death the 41 taxpayer acquired the right to receive the income or gain, or to a trust 42 or estate from which the taxpayer received the income or gain. 43 (6) Interest or dividend income on obligations or securities to the 44 extent exempt from income tax under the laws of this state authorizing 45 the issuance of such obligations on securities but includible in gross 46 income for federal income tax purposes. 47 (7) The amount of any refund or credit for overpayment of income 48 taxes imposed by this city, any other taxing jurisdiction, or any taxes 49 imposed by article twenty-three of the tax law to the extent properly 50 included in gross income for federal income tax purposes. 51 (8) Compensation received for active service in the armed forces of 52 the United States on or after October first, nineteen hundred sixty-one, 53 and prior to September first, nineteen hundred sixty-two; provided, 54 however, that the amount of such compensation to be deducted shall not 55 exceed one hundred dollars for each month of the taxable year, subse- 56 quent to September, nineteen hundred sixty-one, during any part of whichS. 8474 896 1 month the taxpayer was engaged in such service. For the purposes of 2 this paragraph, the words "active service in the armed forces of the 3 United States" shall mean active duty, other than for training, in the 4 army, navy, including the marine corps, air force or coast guard of the 5 United States as defined in title ten of the United States Code. 6 (8-a) Compensation and bonuses received for active service in the 7 armed forces of the United States while a prisoner of war or missing in 8 action during the hostilities in Vietnam, to the extent includible in 9 gross income for federal income tax purposes. 10 (9) Interest on indebtedness incurred or continued to purchase or 11 carry obligations or securities the interest on which is subject to tax 12 under this chapter but exempt from federal income tax, to the extent 13 that such interest on indebtedness is not deductible in determining 14 federal adjusted gross income and is attributable to a trade or business 15 carried on by the taxpayer. 16 (10) Ordinary and necessary expenses paid or incurred during the 17 taxable year for: (i) the production or collection of income which is 18 subject to tax under this chapter but exempt from federal income tax, or 19 (ii) the management, conservation or maintenance of property held for 20 the production of such income, and the amortizable bond premium for the 21 taxable year on any bond the interest on which is subject to tax under 22 this chapter but exempt from federal income tax, to the extent that such 23 expenses and premiums are not deductible in determining federal adjusted 24 gross income and are attributable to a trade or business carried on by 25 the taxpayer. 26 (11) In the case of a taxpayer who has exercised the election permit- 27 ted by subdivision (g) or (h) of this section, the amount or amounts 28 required by said subdivisions to be subtracted from federal adjusted 29 gross income. 30 (12) The amount necessary to prevent the taxation of amounts properly 31 included in New York adjusted gross income in prior taxable years in 32 accordance with paragraph seven of subdivision (b) of this section. 33 (13) The amount required to be subtracted from federal adjusted gross 34 income pursuant to subdivision (i) of this section. 35 (14) The amount that may be subtracted from federal adjusted gross 36 income pursuant to subdivision (j) of this section. 37 (15) That portion of wages or salaries paid or incurred for the taxa- 38 ble year for which a deduction is not allowed pursuant to the provisions 39 of section two hundred eighty-C of the internal revenue code. 40 (19) The amount which may be subtracted from federal adjusted gross 41 income pursuant to subdivision (r) of this section. 42 (20) The amounts which may be subtracted from federal adjusted gross 43 income pursuant to subdivision (o) of this section. 44 (21) In relation to the disposition of stock or indebtedness of a 45 corporation which elected under subchapter s of chapter one of the 46 internal revenue code for any taxable year of such corporation begin- 47 ning, in the case of a corporation taxable under article nine-A of the 48 tax law, after December thirty-first, nineteen hundred eighty, the 49 amounts required to be subtracted from federal adjusted gross income 50 pursuant to subdivision (n) of this section. 51 (22) In the case of a shareholder of an S corporation: (A) where the 52 election provided for in subsection (a) of section six hundred sixty of 53 the tax law has not been made with respect to such corporation, any item 54 of income of the corporation included in federal gross income pursuant 55 to section thirteen hundred sixty-six of the internal revenue code, andS. 8474 897 1 (B) in the case of a New York S termination year, subparagraph (A) of 2 this paragraph shall apply to the amounts of income determined under 3 subdivision (s) of this section. 4 (23) The amounts which may be subtracted from federal adjusted gross 5 income pursuant to subdivision (p) of this section. 6 (24) For taxable years beginning after December thirty-first, nineteen 7 hundred eighty-one, except with respect to property which is a qualified 8 mass commuting vehicle described in subparagraph (D) of paragraph eight 9 of subsection (f) of section one hundred sixty-eight of the internal 10 revenue code, relating to qualified mass commuting vehicles, any amount 11 which is included in the taxpayer's federal adjusted gross income solely 12 as a result of an election made pursuant to the provisions of such para- 13 graph eight as it was in effect for agreements entered into prior to 14 January first, nineteen hundred eighty-four; 15 (25) For taxable years beginning after December thirty-first, nineteen 16 hundred eighty-one, except with respect to property which is a qualified 17 mass commuting vehicle described in subparagraph (D) of paragraph eight 18 of subsection (f) of section one hundred sixty-eight of the internal 19 revenue code, relating to qualified mass commuting vehicles, any amount 20 which the taxpayer could have excluded from federal adjusted gross 21 income had it not made the election provided for in such paragraph eight 22 as it was in effect for agreements entered into prior to January first, 23 nineteen hundred eighty-four; 24 (26) For taxable years beginning after December thirty-first, nineteen 25 hundred eighty-one, except with respect to recovery property subject to 26 the provisions of section two hundred eighty-F of the internal revenue 27 code and recovery property placed in service in this state in taxable 28 years beginning after December thirty-first, nineteen hundred eighty- 29 four, the amount allowable as the depreciation deduction under section 30 one hundred sixty-seven of the internal revenue code as such section 31 would have applied to property placed in service on December thirty- 32 first, nineteen hundred eighty; 33 (26) In the case of property placed in service in taxable years begin- 34 ning before nineteen hundred ninety-four, for taxable years beginning 35 after December thirty-first, nineteen hundred eighty-one, except with 36 respect to property subject to the provisions of section two hundred 37 eighty-F of the internal revenue code and property subject to the 38 provisions of section one hundred sixty-eight of the internal revenue 39 code which is placed in service in this state in taxable years beginning 40 after December thirty-first, nineteen hundred eighty-four, an amount 41 with respect to property which is subject to the provisions of section 42 one hundred sixty-eight of the internal revenue code equal to the amount 43 allowable as the depreciation deduction under section one hundred 44 sixty-seven of the internal revenue code as such section would have 45 applied to property placed in service on December thirty-first, nineteen 46 hundred eighty. 47 (28) Upon the disposition of recovery property to which paragraph 48 twenty-six of this subdivision applies, the amount, if any, by which the 49 aggregate of the modifications described in paragraph twenty-five of 50 subdivision (b) of this section attributable to such property exceeds 51 the aggregate of the modifications described in paragraph twenty-six of 52 this subdivision attributable to such property. 53 (28) Upon the disposition of property to which paragraph twenty-six of 54 this subdivision applies, the amount, if any, by which the aggregate of 55 the modifications described in paragraph twenty-five of subdivision (b) 56 of this section attributable to such property exceeds the aggregate ofS. 8474 898 1 the modifications described in paragraph twenty-six of this subdivision 2 attributable to such property. 3 (29) Deduction for two-earner married couples. (A) For the taxable 4 year beginning in nineteen hundred eighty-seven, in the case of a 5 husband and wife who each have qualified earned income and who have 6 filed a joint return under subdivision (b) of section 11-1751 of this 7 chapter for the taxable year, an amount equal to ten percent of the 8 lesser of: 9 (i) thirty thousand dollars or 10 (ii) the qualified earned income of the spouse with the lower quali- 11 fied earned income for such taxable year. 12 (B) For purposes of this paragraph, eligibility for the deduction 13 provided for herein and the term qualified earned income shall be deter- 14 mined in the manner such eligibility and such qualified earned income 15 would have been determined pursuant to the provisions of section two 16 hundred twenty-one of the internal revenue code of nineteen hundred 17 fifty-four had such provisions continued in effect for taxable years 18 commencing after December thirty-first, nineteen hundred eighty-six as 19 they were in effect immediately prior to the repeal of such section. 20 Provided, however, the determination of such qualified earned income 21 shall be made with regard only to the items therein included in city 22 adjusted gross income, with such adjusted gross income determined with- 23 out regard to this paragraph, and only with regard to the deductions and 24 exclusions which are of the type properly allowable to or chargeable 25 against such qualified earned income in such taxable year. 26 (30) The amount received by any person as an accelerated payment or 27 payments of part or all of the death benefit or special surrender value 28 under a life insurance policy as a result of any of the diagnoses speci- 29 fied in subparagraph (A) or (B) of paragraph one of subsection (a) of 30 section one thousand one hundred thirteen of the insurance law, and the 31 amount received by any person as a viatical settlement pursuant to the 32 provisions of article seventy-eight of the insurance law, to the extent 33 includible in gross income for federal income tax purposes. 34 (32) The portion of the fees paid during the taxable year by a taxpay- 35 er who is a resident of a continuing care retirement community, issued a 36 certificate of authority pursuant to article forty-six of the public 37 health law, attributable to the cost of providing long term care bene- 38 fits pursuant to a continuing care contract. The portion of the fees so 39 attributable shall be determined in accordance with regulations promul- 40 gated by the superintendent of insurance. The deduction may not exceed 41 the limitation that would be applicable to the taxpayer for the taxable 42 year, with respect to eligible long term care premiums, determined under 43 paragraph ten of subsection (d) of section two hundred thirteen of the 44 internal revenue code. 45 (33) Distributions, to the extent includible in adjusted gross income 46 for federal income tax purposes, made to the taxpayer because of his or 47 her status as a victim of Nazi persecution, as defined in P.L. 103-286, 48 or as a spouse or a descendant in need of such victim. 49 (34) Items of income, to the extent includible in gross income for 50 federal income tax purposes, attributable to, derived from or in any way 51 related to assets stolen from, hidden from or otherwise lost to a victim 52 of Nazi persecution, as defined in P.L. 103-286, immediately prior to, 53 during and immediately after World War II, including, but not limited to 54 interest on the proceeds receivable as insurance under policies issued 55 to a victim of Nazi persecution, as defined in P.L. 103-286, by European 56 insurance companies immediately prior to and during World War II.S. 8474 899 1 Provided, however, this subtraction from federal adjusted income does 2 not apply to assets acquired with such assets or with the proceeds from 3 the sale of such assets. Provided, further, this paragraph is only 4 applicable to a taxpayer who was the first recipient of such assets 5 after their recovery and who is a victim of Nazi persecution, as defined 6 in P.L. 103-286, or a spouse or a descendant of such victim. 7 (35) As provided in section thirty-eight of the tax law, any income or 8 gain, to the extent it is included in federal adjusted gross income of 9 an individual who is the sole proprietor of a qualified entity or a 10 member of a limited liability company, a partner in a partnership or a 11 shareholder in a New York subchapter S corporation that is a qualified 12 entity as defined in section sixteen-v of the New York state urban 13 development corporation act attributable to the operations of such qual- 14 ified entity at its location in or as part of a New York state inno- 15 vation hot spot, as defined in paragraph (a) of subdivision one of 16 section sixteen-v of the New York state urban development corporation 17 act. 18 (36) (A) In the case of a taxpayer who is a small business or a 19 taxpayer who is a member, partner, or shareholder of a limited liability 20 company, partnership, or New York S corporation, respectively, that is a 21 small business, who or which has business income and/or farm income as 22 defined in the laws of the United States, an amount equal to fifteen 23 percent of the net items of income, gain, loss and deduction attribut- 24 able to such business or farm entering into federal adjusted gross 25 income, but not less than zero. 26 (B) (i) For the purposes of this paragraph, the term small business 27 shall mean: (I) a sole proprietor who employs one or more persons during 28 the taxable year and who has net business income or net farm income of 29 greater than zero but less than two hundred fifty thousand dollars; 30 (II) a limited liability company, partnership, or New York S corpo- 31 ration that during the taxable year employs one or more persons and has 32 net farm income that is greater than zero but less than two hundred 33 fifty thousand dollars; or 34 (III) a limited liability company, partnership, or New York S corpo- 35 ration that during the taxable year employs one or more persons and has 36 New York gross business income attributable to a non-farm business that 37 is greater than zero but less than one million five hundred thousand 38 dollars. 39 (ii) For purposes of this paragraph, the term New York gross business 40 income shall mean: (I) in the case of a limited liability company or a 41 partnership, New York source gross income as defined in subparagraph (b) 42 or paragraph three of subsection (c) of section six hundred fifty-eight 43 of the tax law, and, (II) in the case of a New York S corporation, New 44 York receipts included in the numerator of the apportionment factor 45 determined under section two hundred ten-A of the tax law for the taxa- 46 ble year. 47 (C) To qualify for this modification in relation to a non-farm small 48 business that is a limited liability company, partnership, or New York S 49 corporation, the taxpayer's income attributable to the net business 50 income from its ownership interests in non-farm limited liability compa- 51 nies, partnerships, or New York S corporations must be less than two 52 hundred fifty thousand dollars. 53 (37) Any wages received by an individual as an employee of a business 54 located within a tax-free NY area during the first five years of such 55 business's ten year taxable period specified in subdivision (a) of 56 section thirty-nine of the tax law to the extent included in federalS. 8474 900 1 adjusted gross income and allowed under section thirty-nine of the tax 2 law. During the second five years of such business's ten year taxable 3 period, the first two hundred thousand dollars of such wages in the case 4 of a taxpayer filing as a single individual, the first two hundred fifty 5 thousand dollars of such wages in the case of a taxpayer filing as a 6 head of household, and three hundred thousand dollars of such wages in 7 the case of a taxpayer filing a joint return, to the extent included in 8 federal adjusted gross income and allowed under section thirty-nine of 9 the tax law. 10 (38) The amount of any award paid to a volunteer firefighter or volun- 11 teer ambulance worker from a length of service defined contribution plan 12 or defined benefit plan as provided for in articles eleven-A, eleven-AA, 13 eleven-AAA and eleven-AAAA of the general municipal law, to the extent 14 that such award is includable in gross income for federal income tax 15 purposes; provided, however, that such award is not distributed in the 16 form of a lump sum distribution, as defined in subparagraph (D) of para- 17 graph four of subsection (e) of section four hundred two of the internal 18 revenue code and taxed under section six hundred three of the tax law; 19 and provided, further, that such award is not distributed to a taxpayer 20 who has not attained the age of fifty-nine and one-half years. 21 (39) The amount of any gain added back to federal adjusted gross 22 income in a previous taxable year pursuant to paragraph thirty-nine of 23 subdivision (b) of this section that is included in federal gross income 24 for the taxable year. 25 (d) Modification for city fiduciary adjustment. There shall be added 26 to or subtracted from federal adjusted gross income, as the case may be, 27 the taxpayer's share, as beneficiary of an estate or trust, of the city 28 fiduciary adjustment determined under section 11-1719 of this subchap- 29 ter. 30 (e) Modifications of partners and shareholders of S corporations. (1) 31 Partners and shareholders of S corporations which are not New York C 32 corporations. The amounts of modifications required to be made under 33 this section by a partner or by a shareholder of an S corporation, other 34 than an S corporation which is a New York C corporation, which relate to 35 partnership or S corporation items of income, gain, loss or deduction 36 shall be determined under section 11-1717 of this subchapter and, in the 37 case of a partner of a partnership doing an insurance business as 38 members of the New York insurance exchange described in section six 39 thousand two hundred one of the insurance law, under section 11-1717.1 40 of this subchapter. 41 (2) Shareholders of S corporations which are New York C corporations. 42 In the case of a shareholder of an S corporation which is a New York C 43 corporation, the modifications under this section which relate to the 44 corporation's items of income, loss and deduction shall not apply, 45 except for the modifications provided under paragraph nineteen of subdi- 46 vision (b) and paragraph twenty-two of subdivision (c) of this section. 47 (3) New York S termination year. In the case of a New York S termi- 48 nation year, the amounts of the modifications required under this 49 section which relate to the S corporation's items of income, loss, 50 deduction and reductions for taxes, as described in paragraphs two and 51 three of subsection (f) of section thirteen hundred sixty-six of the 52 internal revenue code, shall be adjusted in the same manner that the S 53 corporation's items are adjusted under subdivision (s) of this section. 54 (f) Husband and wife. If husband and wife determine their federal 55 income tax on a joint return but are required to determine their city 56 income taxes separately, they shall determine their city adjusted grossS. 8474 901 1 incomes separately as if their federal adjusted gross incomes had been 2 determined separately. 3 (g) Optional modifications. Subject to the conditions provided in 4 paragraphs three and four of this subdivision, at the election of the 5 taxpayer there shall also be subtracted from federal adjusted gross 6 income either or both of the items set forth in paragraphs one and two 7 of this subdivision, except that only one of such items shall be 8 subtracted with respect to any one item of property, and except that a 9 subtraction of the item set forth in such paragraph two may not be taken 10 with respect to taxable years commencing on or after January first, 11 nineteen hundred eighty-nine. 12 (1) Depreciation with respect to any property such as described in 13 paragraph three or four of this subdivision, and subject to the condi- 14 tions provided therein, not exceeding twice the depreciation allowed 15 with respect to the same property for federal income tax purposes. Such 16 modification shall be allowed only upon condition that any depreciation 17 or amortization allowed with respect to the same property in determining 18 federal adjusted gross income shall be added to federal adjusted gross 19 income pursuant to paragraph six of subdivision (b) of this section. 20 The total of all deductions allowed pursuant to this paragraph in any 21 taxable year or years with respect to any property described in para- 22 graph three of this subdivision shall not exceed its cost or other basis 23 and, with respect to property described in paragraph four of this subdi- 24 vision, which is used in a business carried on both within and without 25 the state shall not exceed its cost or other basis multiplied by a 26 percentage of the excess of the taxpayer's business income over its 27 business deductions allocated to this state for the first year such 28 depreciation is deducted. Such percentage shall be determined by appor- 29 tionment and allocation under regulations of the tax commission. 30 (2) Expenditures paid or incurred during the taxable year for the 31 construction, reconstruction, erection or acquisition of any property 32 such as described in paragraph three or four of this subdivision, and 33 subject to the conditions provided therein, which is used or to be used 34 for purposes of research and development in the experimental or labora- 35 tory sense. Such purposes shall not be deemed to include the ordinary 36 testing or inspection of materials or products for quality control, 37 efficiency surveys, management studies, consumer surveys, advertising, 38 promotions or research in connection with literary, historical or simi- 39 lar projects. Such modification shall be allowed only on condition 40 that, with respect to property described in paragraph four of this 41 subdivision, which is used in a business carried on both within and 42 without the state the deduction shall not exceed the expenditures multi- 43 plied by a percentage of the excess of the taxpayer's business income 44 over its business deductions allocated to this state for the first year 45 such expenditures are deducted. Such percentage shall be determined by 46 apportionment and allocation under regulations of the tax commission, 47 and for the taxable year and all succeeding taxable years, any 48 deductions allowed for federal income tax purposes on account of such 49 expenditures or on account of depreciation of the same property, except 50 to the extent that its basis may be attributable to factors other than 51 such expenditures, shall be added to federal adjusted gross income 52 pursuant to paragraph six of subdivision (b) of this section, or in case 53 a modification is allowable pursuant to this paragraph for only a part 54 of such expenditures, on condition that a proportionate part of any such 55 deductions allowed for federal income tax purposes be added to federal 56 adjusted gross income. With respect to property which is used or to beS. 8474 902 1 used for research and development only in part, or during only part of 2 its useful life, the modification allowable pursuant to this paragraph 3 shall be limited to a proportionate part of the expenditures relating 4 thereto. If a modification shall have been allowed pursuant to this 5 paragraph for all or part of such expenditures with respect to any prop- 6 erty, and such property is used for purposes other than research and 7 development to a greater extent than originally reported, the taxpayer 8 shall report such use in his or her return for the first taxable year 9 during which it occurs, and the tax commission may recompute the tax for 10 the year or years for which such deduction was allowed, and may assess 11 any additional tax resulting from such recomputation within the time 12 fixed by subdivision (c) of section 11-1783 of this chapter. 13 (3) For purposes of this paragraph, such modifications shall be 14 allowed only with respect to tangible property which is depreciable 15 pursuant to section one hundred sixty-seven of the internal revenue 16 code, having a situs in this state and used in the taxpayer's trade or 17 business: (A) constructed, reconstructed or erected after December thir- 18 ty-first, nineteen hundred sixty-three, pursuant to a contract which 19 was, on or before December thirty-first, nineteen hundred sixty-seven, 20 and at all times thereafter, binding on the taxpayer or, property, the 21 physical construction, reconstruction or erection of which began on or 22 before December thirty-first, nineteen hundred sixty-seven or which 23 began after such date pursuant to an order placed on or before December 24 thirty-first, nineteen hundred sixty-seven, and then only with respect 25 to that portion of the basis thereof or the expenditures relating there- 26 to which is properly attributable to such construction, reconstruction 27 or erection after December thirty-first, nineteen hundred sixty-three, 28 or (B) acquired after December thirty-first, nineteen hundred sixty- 29 three, pursuant to a contract which was, on or before December thirty- 30 first, nineteen hundred sixty-seven, and at all times thereafter, bind- 31 ing on the taxpayer or pursuant to an order placed on or before December 32 thirty-first, nineteen hundred sixty-seven, by purchase as defined in 33 subsection (d) of section one hundred seventy-nine of the internal 34 revenue code, if the original use of such property commenced with the 35 taxpayer, commenced in this state and commenced after December thirty- 36 first, nineteen hundred sixty-three, or (C) acquired, constructed, 37 reconstructed, or erected subsequent to December thirty-first, nineteen 38 hundred sixty-seven, if such acquisition, construction, reconstruction 39 or erection is pursuant to a plan of the taxpayer which was in existence 40 December thirty-first, nineteen hundred sixty-seven and not thereafter 41 substantially modified, and such acquisition, construction, recon- 42 struction or erection would qualify under the rules in paragraph four, 43 five or six of subdivision (h) of section forty-eight of the internal 44 revenue code provided all references in such paragraphs four, five and 45 six to the dates October nine, nineteen hundred sixty-six, and October 46 ten, nineteen hundred sixty-six, shall be read as December thirty-first, 47 nineteen hundred sixty-seven. A taxpayer shall be allowed a deduction 48 under clause (A), (B) or (C) of this paragraph only if the tangible 49 property shall be delivered or the construction, reconstruction or 50 erection shall be completed on or before December thirty-first, nineteen 51 hundred sixty-nine, except in the case of tangible property which is 52 acquired, constructed, reconstructed or erected pursuant to a contract 53 which was, on or before December thirty-first, nineteen hundred sixty- 54 seven, and at all times thereafter, binding on the taxpayer. However, 55 for any taxable year beginning on or after January first, nineteen 56 hundred sixty-eight, a taxpayer shall not be allowed a modificationS. 8474 903 1 under paragraph one of this subdivision with respect to tangible 2 personal property leased to any other person or corporation, provided, 3 any contract or agreement to lease or rent or for a license to use such 4 property shall be considered a lease. With respect to property which a 5 taxpayer uses for purposes other than leasing for part of a taxable year 6 and leases for a part of a taxable year, a modification under paragraph 7 one of this subdivision shall be allowed in proportion to the part of 8 the year such property is used by the taxpayer. 9 (4) For purposes of this paragraph, such modifications shall be 10 allowed only with respect to tangible property which is depreciable 11 pursuant to section one hundred sixty-seven of the internal revenue 12 code, having a situs in this state and used in the taxpayer's trade or 13 business. The modifications provided for in paragraph one of this 14 subdivision shall be allowed only with respect to tangible property 15 which is: (A) constructed, reconstructed or erected after December thir- 16 ty-first, nineteen hundred sixty-seven, pursuant to a contract which 17 was, on or before December thirty-first, nineteen hundred sixty-eight, 18 and at all times thereafter, binding on the taxpayer or, property, the 19 physical construction, reconstruction or erection of which began on or 20 before December thirty-first, nineteen hundred sixty-eight or which 21 began after such date pursuant to an order placed on or before December 22 thirty-first, nineteen hundred sixty-eight, and then only with respect 23 to that portion of the basis thereof or the expenditures relating there- 24 to which is properly attributable to such construction, reconstruction 25 or erection after December thirty-first, nineteen hundred sixty-three, 26 or (B) acquired after December thirty-first, nineteen hundred sixty-sev- 27 en, pursuant to a contract which was, on or before December thirty- 28 first, nineteen hundred sixty-eight, and at all times thereafter, bind- 29 ing on the taxpayer or pursuant to an order placed on or before December 30 thirty-first, nineteen hundred sixty-eight, by purchase as defined in 31 section one hundred seventy-nine (d) of the internal revenue code, if 32 the original use of such property commenced with the taxpayer, commenced 33 in this state and commenced after December thirty-first, nineteen 34 hundred sixty-seven, or (C) acquired, constructed, reconstructed, or 35 erected subsequent to December thirty-first, nineteen hundred sixty- 36 eight, if such acquisition, construction, reconstruction or erection is 37 pursuant to a plan of the taxpayer which was in existence December thir- 38 ty-first, nineteen hundred sixty-eight, and not thereafter substantially 39 modified, and such acquisition, construction, reconstruction or erection 40 would qualify under the rules in paragraph four, five or six of subdivi- 41 sion (h) of section forty-eight of the internal revenue code provided 42 all references in such paragraphs four, five and six to the dates Octo- 43 ber nine, nineteen hundred sixty-six, and October ten, nineteen hundred 44 sixty-six, shall be read as December thirty-first, nineteen hundred 45 sixty-eight. A taxpayer shall be allowed a deduction under clause (A), 46 (B) or (C) of the preceding sentence of this paragraph only if the 47 tangible property shall be delivered or the construction, reconstruction 48 or erection shall be completed on or before December thirty-first, nine- 49 teen hundred seventy, except in the case of tangible property which is 50 acquired, constructed, reconstructed or erected pursuant to a contract 51 which was, on or before December thirty-first, nineteen hundred sixty- 52 eight, and at all times thereafter binding on the taxpayer. The modifi- 53 cation provided for in paragraph two of this subdivision shall be 54 allowed only with respect to tangible property: (A) the construction, 55 reconstruction or erection of which is completed after December thirty- 56 first, nineteen hundred sixty-seven, and then only with respect to thatS. 8474 904 1 portion of the basis thereof or the expenditures relating thereto which 2 is properly attributable to such construction, reconstruction or 3 erection after December thirty-first, nineteen hundred sixty-three, or 4 (B) acquired after December thirty-first, nineteen hundred sixty-seven, 5 by purchase as defined in section one hundred seventy-nine (d) of the 6 internal revenue code, if the original use of such property commenced 7 with the taxpayer, commenced in this state and commenced after December 8 thirty-first, nineteen hundred sixty-three. Provided, however, a 9 modification under paragraph one of this subdivision shall be allowed 10 with respect to property described in this paragraph only on condition 11 that such property shall be principally used by the taxpayer in the 12 production of goods by manufacturing; processing; assembling; refining; 13 mining; extracting; farming; agriculture; horticulture; floriculture; 14 viticulture; or commercial fishing. Manufacturing shall mean the proc- 15 ess of working raw materials into wares suitable for use or which gives 16 new shapes, new qualities or new combinations to matter which already 17 has gone through some artificial process by the use of machinery, tools, 18 appliances and other similar equipment. Property used in the production 19 of goods shall include machinery, equipment or other tangible property 20 which is principally used in the repair and service of other machinery, 21 equipment or other tangible property used principally in the production 22 of goods and shall include all facilities used in the manufacturing 23 operation, including storage of material to be used in manufacturing and 24 of the products that are manufactured. At the option of the taxpayer, 25 air and water pollution control facilities which qualify for elective 26 deductions under subdivision (h) of this section may be treated, for 27 purposes of this paragraph, as tangible property principally used in the 28 production of goods by manufacturing; processing; assembling; refining; 29 mining; extracting; farming; agriculture; horticulture; floriculture; 30 viticulture; or commercial fishing, in which event, a deduction shall 31 not be allowed under such subdivision (h). However, for any taxable 32 year beginning on or after January first, nineteen hundred sixty-eight, 33 a taxpayer shall not be allowed a modification under paragraph one of 34 this subdivision with respect to tangible personal property leased to 35 any other person or corporation, provided, any contract or agreement to 36 lease or rent or for a license to use such property shall be considered 37 a lease. With respect to property which a taxpayer uses for purposes 38 other than leasing for part of a taxable year and leases for a part of a 39 taxable year, a modification under paragraph one of this subdivision 40 shall be allowed in proportion to the part of the year such property is 41 used by the taxpayer. 42 (5) If the modifications allowable for any taxable year pursuant to 43 this subdivision exceed the taxpayer's city adjusted gross income, 44 determined without the allowance of such modifications, the excess may 45 be carried over to the following taxable year or years and may be 46 subtracted from federal adjusted gross income for such year or years. 47 (6) In any taxable year when property is sold or otherwise disposed 48 of, with respect to which a modification has been allowed pursuant to 49 paragraph one or two of this subdivision, the basis of such property 50 shall be adjusted to reflect the modifications so allowed, and if the 51 basis as so adjusted is lower than the adjusted basis of the same prop- 52 erty for federal income tax purposes, there shall be added to federal 53 adjusted gross income the amount of the difference between such adjusted 54 bases. 55 (h) Optional modification for waste treatment facility expenditures. 56 For taxable years commencing prior to January first, nineteen hundredS. 8474 905 1 eighty-nine, at the election of the taxpayer, there shall also be 2 subtracted from federal adjusted gross income expenditures paid or 3 incurred during the taxable year for the construction, reconstruction, 4 erection or improvement of industrial waste treatment facilities and air 5 pollution control facilities. 6 (1)(A) The term "industrial waste treatment facilities" shall mean 7 facilities for the treatment, neutralization, or stabilization of indus- 8 trial waste, as the term "industrial waste" is defined in section 9 17-0105 of the environmental conservation law, from a point immediately 10 preceding the point of such treatment, neutralization or stabilization 11 to the point of disposal, including the necessary pumping and transmit- 12 ting facilities, but excluding such facilities installed for the primary 13 purpose of salvaging materials which are usable in the manufacturing 14 process or are marketable. 15 (B) The term "air pollution control facilities" shall mean facilities 16 which remove, reduce, or render less noxious air contaminants emitted 17 from an air contamination source, as the terms "air contaminant" and 18 "air contamination source" are defined in section 19-0107 of the envi- 19 ronmental conservation law, from a point immediately preceding the point 20 of such removal, reduction or rendering to the point of discharge of 21 air, meeting emission standards as established by the air pollution 22 control board, but excluding such facilities installed for the primary 23 purpose of salvaging materials which are usable in the manufacturing 24 process or are marketable and excluding those facilities which rely for 25 their efficacy on dilution, dispersion or assimilation of air contam- 26 inants in the ambient air after emission. 27 (2) Such modifications shall be allowed only: 28 (A) with respect to tangible property which is depreciable, pursuant 29 to section one hundred sixty-seven of the internal revenue code, having 30 a situs in this state and used in the taxpayer's trade or business, the 31 construction, reconstruction, erection or improvement of which, in the 32 case of industrial waste treatment facilities, is initiated on or after 33 January first, nineteen hundred sixty-five, or which, in the case of air 34 pollution control facilities, is initiated on or after January first, 35 nineteen hundred sixty-six, and 36 (B) on condition that such facilities have been certified by the 37 commissioner of environmental conservation or his or her designated 38 representative, in the same manner as provided for in section 17-0707 or 39 19-0309 of the environmental conservation law, as applicable, as comply- 40 ing with the provisions of such environmental conservation law, the 41 state sanitary code and regulations, permits or orders promulgated 42 pursuant thereto, and 43 (C) on condition that for the taxable year and all succeeding taxable 44 years, any deductions allowed for federal income tax purposes for such 45 expenditures or for depreciation or amortization of the same property, 46 except to the extent that its basis may be attributable to factors other 47 than such expenditures, be added to federal adjusted gross income pursu- 48 ant to paragraph five of subdivision (b) of this section, or in case a 49 modification is allowable pursuant to this paragraph for only a part of 50 such expenditures, on condition that a proportionate amount of any such 51 deductions allowed for federal income tax purposes be added to federal 52 adjusted gross income, and 53 (D) where the election provided for in subdivision (g) of this 54 section has not been exercised in respect to the same property. 55 (3)(A) If expenditures in respect to an industrial waste treatment 56 facility or an air pollution control facility have been allowed as aS. 8474 906 1 modification as provided herein and if within ten years from the end of 2 the taxable year in which such modification was allowed such property or 3 any part thereof is used for the primary purpose of salvaging materials 4 which are usable in the manufacturing process or are marketable, the 5 taxpayer shall report such change of use in its return for the first 6 taxable year during which it occurs, and the tax commission may recom- 7 pute the tax for the year or years for which such modification was 8 allowed, and may assess any additional tax resulting from such recompu- 9 tation within the time fixed by paragraph eight of subdivision (c) of 10 section 11-1783 of this chapter. 11 (B) If a modification is allowed as herein provided for expenditures 12 paid or incurred during any taxable year on the basis of a temporary 13 certificate of compliance issued pursuant to the environmental conserva- 14 tion law, and if the taxpayer fails to obtain a permanent certificate of 15 compliance upon completion of the facilities with respect to which such 16 temporary certificate was issued, the taxpayer shall report such failure 17 in its report for the taxable year during which such facilities are 18 completed, and the tax commission may recompute the tax for the year or 19 years for which such modification was allowed, and may assess any addi- 20 tional tax resulting from such recomputation within the time fixed by 21 paragraph eight of subdivision (c) of section 11-1783 of this chapter. 22 (C) If a modification is allowed as herein provided for expenditures 23 paid or incurred during any taxable year in respect to an air pollution 24 control facility on the basis of a certificate of compliance issued 25 pursuant to the environmental conservation law and the certificate is 26 revoked pursuant to section 19-0309 of the environmental conservation 27 law, the tax commission may recompute the tax for the year or years for 28 which the facility is not or was not in compliance with the applicable 29 provisions of the environmental conservation law, the state sanitary 30 code or codes, rules, regulations, permits or orders issued pursuant 31 thereto, and for which a modification was allowed, and may assess any 32 additional tax resulting from such recomputation within the time fixed 33 by paragraph eight of subdivision (c) of section 11-1783 of this chap- 34 ter. 35 (4) In any taxable year when property is sold or otherwise disposed 36 of, with respect to which a modification has been allowed pursuant to 37 this paragraph, such modification shall be disregarded in computing gain 38 or loss, and the gain or loss on the sale or other disposition of such 39 property shall be the gain or loss entering into the computation of 40 federal adjusted gross income for such taxable year. 41 (i) In the case of mines, oil and gas wells and other natural depos- 42 its, any allowance for percentage depletion pursuant to section six 43 hundred thirteen or section six hundred thirteen-A of the internal 44 revenue code, shall be added to federal adjusted gross income. However, 45 with respect to the property as to which such addition to federal 46 adjusted gross income is required, an allowance for depletion shall be 47 subtracted from federal adjusted gross income in the amount that would 48 be deductible under section six hundred eleven of such code if the 49 deduction for an allowance for depletion were computed without reference 50 to such section six hundred thirteen or section six hundred thirteen-A. 51 With respect to the computation of depletion pursuant to this subdivi- 52 sion, the basis for such computation shall be the basis for state income 53 tax purposes provided for in subsection (i) of section six hundred 54 twelve of the tax law. The portion of any gain from the sale or other 55 disposition of such property having a higher adjusted basis for city 56 income tax purposes than for federal income tax purposes, that does notS. 8474 907 1 exceed such difference in basis, shall be subtracted from federal 2 adjusted gross income. 3 (j) Modification for nonpublic school tuition. (1) General. An indi- 4 vidual shall be entitled to subtract from his or her federal adjusted 5 gross income an amount shown in the table set forth in this paragraph 6 for his or her city adjusted gross income for the taxable year, computed 7 without the benefit of this modification, multiplied by the number of 8 his or her dependents, not exceeding three, attending a nonpublic school 9 on a full-time basis for at least four months during the regular school 10 year for the education of such dependent in grades one through twelve, 11 provided such individual is allowed an exemption under section 11-1716 12 of this chapter for such dependent. Provided, further, that the modifi- 13 cation under this paragraph may be taken only if such individual has 14 paid at least fifty dollars for each such dependent in tuition to such 15 nonpublic school for such education of such dependent. No taxpayer 16 shall be entitled to the modification provided for in this paragraph if 17 he or she claims a tuition reimbursement payment pursuant to article 18 twelve-A of the education law. 19 If city adjusted The amount allowable 20 gross income is: for each dependent is: 21 Less than $9,000 $1,000 22 9,000 -- 10,999 850 23 11,000 -- 12,999 700 24 13,000 -- 14,999 550 25 15,000 -- 16,999 400 26 17,000 -- 18,999 250 27 19,000 -- 20,999 150 28 21,000 -- 22,999 125 29 23,000 -- 24,999 100 30 25,000 and over -0- 31 (2) Husband and wife. In determining the applicable city adjusted 32 gross income of a husband and wife for purposes of the table set forth 33 in paragraph one of this subdivision, the city adjusted gross income of 34 a husband and wife shall be the aggregate of their city adjusted gross 35 incomes for the taxable year, determined without the benefit of the 36 modification provided for in this subdivision, and the number of depen- 37 dents with respect to which this modification may be claimed shall be no 38 more than three in the aggregate. 39 (3) Definitions. (A) "Tuition", as used in this subdivision, shall 40 mean the amount actually paid during the taxable year by the taxpayer 41 for the enrollment of a dependent during the regular school year at a 42 nonpublic school. 43 (B) "Nonpublic school", as used in this subdivision, shall mean any 44 non-profit elementary or secondary school in the state of New York, 45 other than a public school, which: (i) is providing instruction in 46 accordance with article seventeen and section thirty-two hundred four of 47 the education law, (ii) has not been found to be in violation of title 48 VI of the civil rights act of nineteen hundred sixty-four, 78 Stat. 252, 49 42 U.S.C. § 2000(d) and (iii) which is entitled to a tax exemption under 50 sections five hundred one (a) and five hundred one (c) (3) of the feder- 51 al internal revenue code of nineteen hundred fifty-four, as amended. 52 The commissioner of education shall furnish to the tax commission by 53 February first of each year, a certified list of nonpublic schools which 54 comply with clause (i) of this subparagraph for the preceding calendarS. 8474 908 1 year and shall provide such other assistance with respect to whether 2 nonpublic schools come within clause (i) as the tax commission may 3 require. 4 (C) "Regular school year", as used in this subdivision, shall mean the 5 months of the taxable year exclusive of July and August. 6 (4) Additional information. Any claim for a modification under this 7 subdivision shall be accompanied by such information as the tax commis- 8 sion may require. 9 (k) Modification for contributions to a qualified higher education 10 fund. (1) A taxpayer may subtract from his or her federal adjusted 11 gross income amounts which during the taxable year are contributed by 12 him or her to a qualified higher education fund, as defined in paragraph 13 three of this subdivision, established by him or her, limited to the 14 product of seven hundred fifty dollars and the number of eligible bene- 15 ficiaries, as defined in subparagraph (C) of paragraph three of this 16 subdivision, as of the first or last day of the taxable year, whichever 17 yields the higher limit. Provided, however, that a taxpayer whose taxa- 18 ble year began on January first, nineteen hundred seventy-eight may 19 subtract from his or her federal adjusted gross income for such taxable 20 year, amounts contributed by him or her to a qualified higher education 21 fund during the fifteen month period beginning January first, nineteen 22 hundred seventy-eight and ending April fifteenth, nineteen hundred 23 seventy-nine. Contributions to a qualified higher education fund made 24 during the period beginning January first, nineteen hundred seventy-nine 25 and ending April fifteenth, nineteen hundred seventy-nine and subtracted 26 from a taxpayer's federal adjusted gross income for the taxable year 27 beginning January first, nineteen hundred seventy-eight shall be deemed 28 to have been made during such taxable year. However, such number of 29 eligible beneficiaries shall not include any individual who was a 30 student at an institution of higher education during the previous taxa- 31 ble year. For purposes of this paragraph, the term "student" shall have 32 the same meaning as that ascribed to it by paragraph four of subsection 33 (e) of section one hundred fifty-one of the internal revenue code, 34 except that the reference therein to "5 calendar months" shall be deemed 35 to be a reference to "3 calendar months." 36 (2) A taxpayer who establishes a qualified higher education fund may 37 subtract from his or her federal adjusted gross income amounts included 38 in gross income for federal income tax purposes by reason of any income 39 realized by the fund or because of any payment by the fund to, or on 40 behalf of, an eligible beneficiary for the purpose specified in clause 41 (i) of subparagraph (A) of paragraph three of this subdivision. 42 (3) For purposes of this subdivision, a qualified higher education 43 fund is a fund established pursuant to a written plan described in 44 subparagraph (A) of this paragraph, but only if the fund meets the 45 requirements of subparagraph (B) of this paragraph. 46 (A) For purposes of this subdivision a "plan" means a plan estab- 47 lished: 48 (i) solely for the purpose of defraying costs associated with attend- 49 ance subsequent to graduation or separation from secondary school at an 50 institution of higher education, as defined in subparagraph (F) of this 51 paragraph, of one or more eligible beneficiaries, as defined in subpara- 52 graph (C) of this paragraph, such costs to include: (I) applicable 53 tuition and fees, exclusive of fees levied as a penalty for laboratory 54 breakage, dormitory damage and similar fees, (II) room and board as 55 charged by the institution pursuant to a contract entered into by the 56 institution and a student or, if no such contract is entered into, anS. 8474 909 1 amount not exceeding one thousand five hundred dollars per year, which 2 amount shall include any expenses of transportation, and (III) books, 3 supplies and equipment, 4 (ii) which provides that no distribution shall be made by the fund, 5 except upon termination thereof, other than to, or on behalf of, eligi- 6 ble beneficiaries for the purpose specified in clause (i) of this 7 subparagraph, 8 (iii) which provides that upon termination of the fund all assets of 9 the fund shall be distributed to the creator of the fund, to his or her 10 estate or to a trust established for the purpose of making contributions 11 to the fund, and 12 (iv) which prohibits contributions to the fund in excess of amounts 13 which may be subtracted from federal adjusted gross income under para- 14 graph one of this subdivision. 15 (B) A fund meets the requirements of this subparagraph only if: 16 (i) it constitutes a custodial account, the assets of which are held 17 by a bank, as defined in paragraph one of subsection (d) of section four 18 hundred one of the internal revenue code, an insurance company qualified 19 to do business in this state, or another person who demonstrates, to the 20 satisfaction of the tax commission, that the manner in which he or she 21 will hold the assets will be consistent with the requirements of this 22 subdivision, or 23 (ii) it is a trust. 24 In the case of a trust referred to in clause (ii) of this subpara- 25 graph, the assets may be held by a bank or other person who demonstrates 26 to the satisfaction of the tax commission that the manner in which he or 27 she will administer the trust will be consistent with the requirements 28 of this subdivision. Such a trust shall not be disqualified under this 29 subparagraph merely because a person other than the trustee so adminis- 30 tering the trust may be granted, under the trust instrument, the power 31 to control the investment of the trust funds either by directing invest- 32 ments, including reinvestments, disposals and exchanges, or by disap- 33 proving proposed investments, including reinvestments, disposals and 34 exchanges. Such a trust may use annuity, endowment or life insurance 35 contracts of a life insurance company exclusively as the funding media 36 of the trust, if so provided by regulations of the state tax commis- 37 sion, and if the life insurance company supplies annually such informa- 38 tion about trust transactions as the tax commission shall by regulations 39 prescribe. For purposes of this subdivision, the term "bank" shall have 40 the same meaning ascribed to it by the last sentence of paragraph one of 41 subsection (d) of section four hundred one of the internal revenue code. 42 (C) For purposes of this subdivision, the term "eligible beneficiary" 43 means a person: 44 (i) having a relationship to the creator of the fund specified in 45 paragraphs one, two, three or six of subsection (a) of section one 46 hundred fifty-two of the internal revenue code, 47 (ii) who is a dependent of the creator of the fund pursuant to section 48 one hundred fifty-two of the internal revenue code, or is a member of 49 the armed forces of the United States on active duty, is a volunteer in 50 the peace corps, or is a full-time volunteer under the domestic volun- 51 teer service act of 1973, and 52 (iii) who either: (I) has not attained the age of twenty-one, except 53 that where his or her twenty-first birthday falls within a taxable year 54 with respect to which a modification based on contributions to a quali- 55 fied higher education fund with respect to which he or she is a benefi- 56 ciary is allowed to a taxpayer, for purposes of this subclause suchS. 8474 910 1 beneficiary shall be deemed not to have attained the age of twenty-one 2 until the day next succeeding the last day of such taxable year, or (II) 3 is a student, as defined in paragraph four of subsection (e) of section 4 one hundred fifty-one of the internal revenue code or, for a period of 5 up to four years, is a member of the armed forces of the United States 6 on active duty, is a volunteer in the peace corps, or is a full-time 7 volunteer under the domestic volunteer service act of 1973. Where the 8 determination of an individual's status as a student is required for a 9 purpose other than determining the permissibility of a modification 10 under this subdivision, an individual shall be deemed not to be a 11 student as of the last day of any calendar year during which he or she 12 fails to satisfy the requirements of subparagraphs (A) and (B) of para- 13 graph four of subsection (e) of section one hundred fifty-one of the 14 internal revenue code during each of five calendar months during such 15 calendar year. 16 (D) A person who meets the requirements of subparagraph (C) of this 17 paragraph shall cease to be an eligible beneficiary: 18 (i) if payments by the fund to him or her, or on his or her behalf, 19 for the purpose specified in clause (i) of subparagraph (A) of this 20 paragraph do not commence within five years after the date on which such 21 person was graduated or separated from secondary school, excluding any 22 period of up to four years during which an otherwise eligible benefici- 23 ary was a member of the armed forces of the United States on active 24 duty, a volunteer in the peace corps, or in service as a full-time 25 volunteer under the domestic volunteer service act of 1973, or 26 (ii) after the expiration of ten years from the date of such gradu- 27 ation or separation, excluding any period of up to four years during 28 which an otherwise eligible beneficiary was a member of the armed forces 29 of the United States on active duty, a volunteer in the peace corps, or 30 in service as a full-time volunteer under the domestic volunteer service 31 act of 1973, or 32 (iii) if within six months after either his or her eighteenth birthday 33 or the date on which such fund is established, whichever is later, he or 34 she does not file with the tax commission, on a form and in the manner 35 prescribed by regulation, a notice of consent relating to the tax treat- 36 ment of payments from a qualified higher education fund imposed under 37 paragraph fourteen of subdivision (b) of this section. 38 (E) Where a fund is continued subsequent to its creator's death, an 39 individual shall not cease to be an eligible beneficiary by reason of 40 failure to fulfill the requirement set forth in clause (ii) of subpara- 41 graph (C) of this paragraph. 42 (F) For purposes of this subdivision, the term "institution of higher 43 education" means an educational organization described in clause (ii) of 44 subparagraph (A) of paragraph one of subsection (b) of section one 45 hundred seventy of the internal revenue code, 46 (i) which provides an educational program for which it awards an asso- 47 ciate, baccalaureate or higher degree or provides a program which is 48 acceptable for full credit toward such a degree, 49 (ii) contributions to or for the use of which constitute charitable 50 contributions within the meaning of section one hundred seventy (c) of 51 the internal revenue code, 52 (iii) which is legally authorized to provide and does provide a 53 program of postsecondary education, and 54 (iv) which is accredited by a nationally recognized accrediting agency 55 or association listed by the United States commissioner of education. 56 (4) A qualified higher education fund shall terminate:S. 8474 911 1 (A) if a contribution is made to the fund in excess of the amount 2 allowable as a subtraction from federal adjusted gross income under 3 paragraph one of this subdivision, 4 (B) if a distribution is made by the fund other than to, or on behalf 5 of, an eligible beneficiary for the purpose specified in clause (i) of 6 subparagraph (A) of paragraph three of this subdivision, 7 (C) if the plan ceases to have an eligible beneficiary, or 8 (D) in the absence of a testamentary disposition or inter vivos trust 9 provision to the contrary, upon the death of the creator of the fund, or 10 (E) if the fund is otherwise terminated under the tax law. 11 (5) The tax commission may by regulation require the filing of a 12 report annually by the creator of a qualified higher education fund or 13 other person designated by such regulation, such report to set forth the 14 amounts contributed to a qualified higher education fund, as well as the 15 amount, purpose and beneficiary of each disbursement made therefrom. 16 The tax commission may also by regulation require written notification 17 annually to each beneficiary of such disbursements made on his or her 18 behalf. 19 (6) The provisions of subparagraph (B) of paragraph four of this 20 subdivision shall not apply in the case of a rollover. A rollover occurs 21 where the creator of a qualified higher education fund withdraws all of 22 the assets of such fund and not later than sixty days subsequent to such 23 withdrawal establishes a new qualified higher education fund and depos- 24 its therein an amount equal to the value of the assets so withdrawn. 25 Such deposit shall not constitute a contribution within the meaning of 26 this subdivision. This paragraph shall not apply if at any time during 27 the one year period ending on the date of such withdrawal from the qual- 28 ified higher education fund the creator had made a similar withdrawal 29 from another qualified higher education fund, both such funds having at 30 least one beneficiary in common, where such prior withdrawal was 31 followed by the establishment of a new qualified higher education fund 32 such that a rollover was effected pursuant to the provisions of this 33 paragraph. 34 (l) Qualified higher education fund. (1) Upon termination of a 35 qualified higher education fund under subparagraph (A), (B) or (E) of 36 paragraph four of subdivision (k) of this section, a taxpayer to whom 37 the assets of the fund are required to be distributed pursuant to clause 38 (iii) of subparagraph (A) of paragraph three of subdivision (k) of this 39 section shall add to his or her federal adjusted gross income for the 40 taxable year during which the terminating event occurs an amount equal 41 to one hundred ten per centum of an amount which bears the same ratio to 42 the value of the assets of such fund immediately prior to termination as 43 the total contributions made to such fund by a city resident individual, 44 estate or trust bears to the total contributions made to such fund. For 45 purposes of this subdivision the value of the assets of the fund imme- 46 diately prior to termination shall include the value of any distrib- 47 utions made to or on behalf of an eligible beneficiary who subsequently 48 ceased to be an eligible beneficiary pursuant to clause (iii) of subpar- 49 agraph (D) of paragraph three of subdivision (k) of this section. 50 (2) Payments made to or on behalf of an eligible beneficiary from a 51 qualified higher education fund for the purpose specified in clause (i) 52 of subparagraph (A) of paragraph three of subdivision (k) of this 53 section shall be added to the federal adjusted gross income of the indi- 54 vidual taxpayer to whom or on whose behalf the payment is made, in 55 accordance with the following. For the first taxable year of such 56 taxpayer in which no payment described in this paragraph is made withS. 8474 912 1 respect to him or her and during which such taxpayer is not a student, 2 as defined in paragraph four of subsection (e) of section one hundred 3 fifty-one of the internal revenue code, treating the terms "individual" 4 and "taxpayer" therein as referring to such taxpayer, or, for a period 5 of up to four years, a member of the armed forces of the United States 6 on active duty, a volunteer in the peace corps, or a full-time volunteer 7 under the domestic volunteer service act of 1973, which taxable year 8 commences after the last day of the first calendar year in which such a 9 payment is made, one-fifth of the aggregate of all such payments there- 10 tofore made, such aggregate amount pro-rated, pursuant to regulations 11 promulgated by the tax commission, according to the portion of the total 12 contributions made to the fund prior to the first day of such taxable 13 year which constitute amounts contributed by a city resident individual, 14 estate or trust, shall be added to the federal adjusted gross income of 15 such taxpayer for such taxable year and for each of the four succeeding 16 taxable years in which no such payment is made and in which such taxpay- 17 er is not a student, as defined above, or, for a period of up to four 18 years, a member of the armed forces of the United States on active duty, 19 a volunteer in the peace corps, or a full-time volunteer under the 20 domestic volunteer service act of 1973. If in a taxable year subsequent 21 to a taxable year in which such addition to federal adjusted gross 22 income is required, a payment described in this paragraph is made, one- 23 fifth of the amount of such payment, pro-rated, pursuant to regulations 24 promulgated by the tax commission, according to the portion of the total 25 contributions made to the fund prior to the first day of such taxable 26 year which constitute amounts contributed by a city resident individual, 27 estate or trust, shall be added to the federal adjusted gross income of 28 such taxpayer for each of the five immediately succeeding taxable years 29 in which no such payment is made and in which such taxpayer is not a 30 student, as defined above, or, for a period of up to four years, a 31 member of the armed forces of the United States on active duty, a volun- 32 teer in the peace corps, or a full-time volunteer under the domestic 33 volunteer service act of 1973. 34 (n) Where gain or loss is recognized for federal income tax purposes 35 upon the disposition of stock or indebtedness of a corporation electing 36 under subchapter s of chapter one of the internal revenue code: 37 (1) There shall be added to federal adjusted gross income the amount 38 of increase in basis with respect to such stock or indebtedness pursuant 39 to subsection (a) of section thirteen hundred seventy-six of the inter- 40 nal revenue code as such section was in effect for taxable years begin- 41 ning before January first, nineteen hundred eighty-three and subpara- 42 graphs (A) and (B) of paragraph one of subsection (a) of section 43 thirteen hundred sixty-seven of such code, for each taxable year of the 44 corporation beginning, in the case of a corporation taxable under arti- 45 cle nine-A of the tax law, after December thirty-first, nineteen hundred 46 eighty, for which the election provided for in subsection (a) of section 47 six hundred sixty of the tax law was not in effect, and 48 (2) There shall be subtracted from federal adjusted gross income: 49 (A) the amount of reduction in basis with respect to such stock or 50 indebtedness pursuant to subsection (b) of section thirteen hundred 51 seventy-six of the internal revenue code as such section was in effect 52 for taxable years beginning before January first, nineteen hundred 53 eighty-three and subparagraphs (B) and (C) of paragraph two of 54 subsection (a) of section thirteen hundred sixty-seven of such code, for 55 each taxable year of the corporation beginning, in the case of a corpo- 56 ration taxable under article nine-A of the tax law, after December thir-S. 8474 913 1 ty-first, nineteen hundred eighty, for which the election provided for 2 in subsection (a) of section six hundred sixty of the tax law was not in 3 effect and 4 (B) the amount of any modifications to federal gross income with 5 respect to such stock pursuant to paragraph twenty-one of subdivision 6 (b) of this section. 7 (o) Modifications for new business investment gains and certain new 8 business investments. 9 1. For purposes of this subdivision, the following definitions shall 10 apply: 11 (A) "New business investment gain" means gain from the sale of a new 12 business investment issued to the taxpayer before January first, nine- 13 teen hundred eighty-eight, if: 14 (i) such new business investment is, in the hands of the person sell- 15 ing the same, whether or not the taxpayer, a capital asset as defined in 16 section twelve hundred twenty-one of the internal revenue code of nine- 17 teen hundred fifty-four, as amended, and 18 (ii) such new business investment was held by such person for the 19 period specified in paragraph two of this subdivision. 20 (B) "New business" means a corporation or partnership organized or 21 formed under the laws of any state which: 22 (i) adopts a plan on or after July first, nineteen hundred eighty-one 23 and before January first, nineteen hundred eighty-eight, to conduct a 24 new business within the meaning and intent of this section and to issue 25 new business investments, as defined in this subdivision, and 26 (ii) is, at the date of adoption of such plan, subject to taxation, 27 whether or not any amount is owing, under section one hundred eighty- 28 three or one hundred eighty-four of article nine of the tax law, or 29 under article nine-A of the tax law or article twenty-three of the tax 30 law, or would have been subject to tax under article twenty-three of 31 such law, as such article was in effect on January first, nineteen 32 hundred eighty, if such article were still in effect, and the first 33 taxable period for which such new business became subject to such taxa- 34 tion commenced on or after July first, nineteen hundred eighty-one and 35 before January first, nineteen hundred eighty-eight, and such first 36 taxable period includes the date of adoption of such plan; if not so 37 subject to taxation, the new business must be subject to taxation under 38 such sections or articles for the first time within one year from the 39 date of adoption of such plan, and 40 (iii) is conducted, or will be conducted, as evidenced by such plan, 41 whereby at least ninety percent of the assets, valued at original cost, 42 are located and employed in this state and eighty percent of the employ- 43 ees, in addition, in the case of a partnership, excluding partners, are 44 principally employed in this state during each taxable period, or part 45 thereof, as required by clause (iv) of this subparagraph, and 46 (iv) within ninety days after adoption of such plan, or, if a return 47 is required, as part of such return, under such article nine, article 48 nine-A or article twenty-three of the tax law, whichever is sooner, 49 shall file a new business certificate with the tax commission attesting 50 to whether it meets, if subject to taxation under such articles, or 51 intends to meet, if not so subject, all of the conditions stated in 52 clauses (i), (ii) and (iii) of this subparagraph within the time set 53 forth therein. Thereafter, during the first four taxable years of such 54 new business, along with, and as part of, any return required under such 55 articles, such new business shall make and file a new business certif- 56 icate for the period covered by such return attesting to whether it hasS. 8474 914 1 met the conditions specified in this subparagraph during the taxable 2 period covered by such return. If no return is required under such arti- 3 cles, such certificate shall be filed annually on or before the 4 fifteenth day of March which shall cover the twelve consecutive calendar 5 month period ending on the last day of December immediately preceding 6 such March fifteenth. If such new business fails to meet such conditions 7 specified in this subparagraph, it shall, in addition, give notice of 8 this fact, within the time prescribed by the tax commission, to the 9 holders of its "new business investments." The tax commission shall 10 prescribe the form and content of such new business certification and 11 may require a new business to file such certificate for periods, even if 12 no return is filed or required, but for this section, covering up to 13 eight years from the date of adoption of such plan, as in its 14 discretion, it deems the same necessary for the enforcement of this 15 section, and 16 (v) Special rules: 17 (1) For any taxable period, in order to constitute a new business, a 18 business enterprise must have derived more than sixty percent of its 19 aggregate gross receipts from sources other than royalties, rents, divi- 20 dends, interest, annuities and sales or exchanges of stock or securi- 21 ties. 22 (2) A new business does not include: (i) any new business of which 23 twenty-five percent or more of the number of shares of stock that enti- 24 tle the holders thereof to vote for the election of directors or trus- 25 tees is owned, directly or indirectly, by a taxpayer subject to tax 26 under section one hundred eighty-three, one hundred eighty-four, former 27 section one hundred eighty-five or former section one hundred eighty-six 28 of article nine of the tax law, or under article nine-A, or thirty-three 29 of the tax law or (ii) any new business substantially similar in opera- 30 tion and in ownership, directly or indirectly, to a business entity, or 31 entities, taxable, or previously taxable, under such section, such arti- 32 cle, article twenty-three of the tax law or which would have been 33 subject to tax under such article twenty-three, as such article was in 34 effect on January first, nineteen hundred eighty, or the income, or 35 losses, of which is, or was, includible under article twenty-two of such 36 tax law whereby the intent and purpose of this section would be evaded. 37 (C) "New business investment" means and includes the following invest- 38 ments issued before January first, nineteen hundred eighty-eight by a 39 new business pursuant to a plan described in clause (i) of subparagraph 40 (B) of this paragraph for money or other property, other than stock or 41 securities, on or before the expiration of the third taxable year of 42 such new business, excluding any short period immediately preceding such 43 taxable year because the new business was not in existence for an entire 44 taxable year, or forty-two months from the adoption of such plan, which- 45 ever is sooner: (i) original issuance capital stock as part of a new 46 issue, (ii) other original issuance securities of a new issue of a like 47 nature as stocks which are designed as a means of investment and issued 48 for the purpose of financing corporate enterprises and providing for a 49 distribution of rights in such enterprises, (iii) debt obligations such 50 as bonds and debentures for a term of at least one year, whether 51 secured or unsecured, and (iv) certificates and other instruments 52 representing proprietary interests, whether limited or otherwise, in and 53 assumption of general liabilities, whether limited or otherwise, of a 54 partnership enterprise.S. 8474 915 1 2. A taxpayer may subtract from his federal adjusted gross income a 2 portion of an amount constituting a new business investment gain, as 3 follows: 4 If new business The modification is equal to the 5 investment held for: following proportion of the gain 6 includible in federal 7 adjusted gross income: 8 At least four years, but 9 less than five years twenty-five percent 10 At least five years, but 11 less than six years fifty percent 12 At least six years one hundred percent 13 3. Where, within six months of the realization of a new business 14 investment gain allowable as the basis of a modification under paragraph 15 two of this subdivision, such modification is equal to less than one 16 hundred percent of the portion of the gain includible in federal 17 adjusted gross income and the taxpayer purchases a new business invest- 18 ment which is then held for a period of at least six months, the taxpay- 19 er may subtract from his or her federal adjusted gross income ten 20 percent, but not an amount that will reduce the portion of such gain 21 included in his or her New York income below zero, of the amount of such 22 gain where the purchase price of the new business investment is equal to 23 or greater than the proceeds of the sale giving rise to such gain. Where 24 the purchase price of the new business investment is less than an amount 25 equal to the proceeds of such sale, the modification allowable under 26 this paragraph shall be equal to ten percent of an amount equal to the 27 product of: (A) the amount of the gain and (B) a fraction the numerator 28 of which is the purchase price of the new investment and the denominator 29 of which is an amount equal to the proceeds of such sale. The modifica- 30 tion allowable under this paragraph may be utilized, at the option of 31 the taxpayer, with respect to the taxable year in which the new business 32 investment gain is realized or the year containing the last day of the 33 six-month retention period described in this paragraph. 34 4. The tax commission may prescribe such rules and regulations as may 35 be necessary to carry out the purposes of this subdivision. 36 (p) New business investment deferral. For taxable years beginning 37 before January first, nineteen hundred eighty-eight, at the option of 38 the taxpayer, there may be subtracted from federal adjusted gross income 39 a reinvested amount of long-term capital gain realized in a taxable year 40 from the sale of a capital asset, as such term is defined in section 41 twelve hundred twenty-one of the internal revenue code, which is not a 42 new business investment. A reinvested amount of long-term capital gain 43 shall mean an amount which bears the same ratio to the long-term capital 44 gain realized from the sale of a capital asset which was includible in 45 New York adjusted gross income as that portion of the sale proceeds 46 which is reinvested, within one year from date of sale, in a New York 47 new business bears to the total sale proceeds. For the purposes of this 48 subdivision, a New York new business is a business enterprise which: (1) 49 has been a taxpayer under article nine-A, twenty-two, or thirty-three of 50 the tax law for no more than three taxable years, including short taxa- 51 ble years, (2) over fifty percent of the number of shares of stock that 52 entitle the holders thereof to vote for the election of directors or 53 trustees is not owned, directly or indirectly, by a taxpayer subject to 54 tax under section one hundred eighty-three, one hundred eighty-four or 55 one hundred eighty-five of article nine of the tax law, or under article 56 nine-A, thirty-two or thirty-three of the tax law, (3) is not substan-S. 8474 916 1 tially similar in operation or ownership, directly or indirectly, to a 2 business entity, or entities taxable, or previously taxable, under such 3 sections, such articles, article twenty-three of the tax law or which 4 would have been subject to tax under article twenty-three, as such arti- 5 cle was in effect on January first, nineteen hundred eighty, or the 6 income, or losses, of which is, or was, includible under article twen- 7 ty-two of the tax law whereby the intent and purpose of this subdivision 8 would be evaded, (4) locates and employs at least ninety percent of its 9 assets in the state, (5) employs principally in the state eighty percent 10 of its employees, and (6) derives less than forty percent of its gross 11 income from dividends, interest, royalties, other than mineral, oil, or 12 gas royalties or copyright royalties, annuities and (7) reports at least 13 twenty-five hundred dollars in gross income in any taxable year. The 14 reinvested amount must qualify as a capital asset as defined pursuant to 15 section twelve hundred twenty-one of the internal revenue code and must 16 be retained by the taxpayer for at least twelve months. The modification 17 allowable under this subdivision shall be utilized with respect to the 18 taxable year in which the twelve month retention period ends. 19 (q) An amount deferred under subdivision (p) of this section shall be 20 added to federal adjusted gross income when the reinvestment in the New 21 York new business which qualified a taxpayer for such deferral is sold. 22 (r) In the case of a sale or other disposition of property acquired 23 from a decedent and valued by the executor of the estate of such dece- 24 dent for the purposes of the tax under article twenty-six of the tax law 25 pursuant to paragraph two of subsection (b) of section nine hundred 26 fifty-four of the tax law, where such estate was insufficient to require 27 the filing of a federal estate tax return, the amount necessary to prop- 28 erly reflect the gain or loss from such sale or other disposition which 29 would have been realized under this chapter, had, in the case of clause 30 (i) of this subdivision, a federal estate tax return been filed similar- 31 ly valuing such property pursuant to section two thousand thirty-two of 32 the internal revenue code, or in the case of clause (ii) of this subdi- 33 vision, pursuant to section two thousand thirty-two-A of such code. 34 (s) New York S termination year. (1) General. In the case of a New 35 York S termination year, the amount of any item of S corporation income, 36 loss and deduction included in the shareholder's federal adjusted gross 37 income and any reductions for taxes, as described in paragraphs two and 38 three of subsection (f) of section thirteen hundred sixty-six of the 39 internal revenue code, shall be adjusted in accordance with the treat- 40 ment provided in paragraph two or three of this subdivision. 41 (2) Pro rata allocation. Unless paragraph three of this subdivision 42 applies, an equal portion of each S corporation item shall be assigned 43 to each day of the S corporation's taxable year for federal income tax 44 purposes. The portion of each such item thereby assigned to the S short 45 year shall be treated as an item of a New York S corporation, and the 46 portion of each such item thereby assigned to the C short year shall be 47 treated as an item of an S corporation which is a New York C corpo- 48 ration. 49 (3) Normal tax accounting. The portion of each S corporation item 50 assigned to the S short year and the C short year shall be determined 51 using normal tax accounting rules if: 52 (A) there is a sale or exchange of fifty percent or more of the stock 53 in such corporation during the New York S termination year or 54 (B) the corporation so elects, as provided in subparagraph (B) of 55 paragraph two of subsection (s) of section six hundred twelve of the tax 56 law.S. 8474 917 1 (t) Related members expense add back. (1) Definitions. (A) Related 2 member. "Related member" means a related person as defined in subpara- 3 graph (c) of paragraph three of subsection (b) of section four hundred 4 sixty-five of the internal revenue code, except that "fifty percent" 5 shall be substituted for "ten percent". 6 (B) Effective rate of tax. "Effective rate of tax" means, as to any 7 city, the maximum statutory rate of tax imposed by the city on or meas- 8 ured by a related member's net income multiplied by the apportionment 9 percentage, if any, applicable to the related member under the laws of 10 said jurisdiction. For purposes of this definition, the effective rate 11 of tax as to any city is zero where the related member's net income tax 12 liability in said city is reported on a combined or consolidated return 13 including both the taxpayer and the related member where the reported 14 transactions between the taxpayer and the related member are eliminated 15 or offset. Also, for purposes of this definition, when computing the 16 effective rate of tax for a city in which a related member's net income 17 is eliminated or offset by a credit or similar adjustment that is 18 dependent upon the related member either maintaining or managing intan- 19 gible property or collecting interest income in that city, the maximum 20 statutory rate of tax imposed by said city shall be decreased to reflect 21 the statutory rate of tax that applies to the related member as effec- 22 tively reduced by such credit or similar adjustment. 23 (C) Royalty payments. Royalty payments are payments directly connected 24 to the acquisition, use, maintenance or management, ownership, sale, 25 exchange, or any other disposition of licenses, trademarks, copyrights, 26 trade names, trade dress, service marks, mask works, trade secrets, 27 patents and any other similar types of intangible assets as determined 28 by the state commissioner of taxation and finance, and include amounts 29 allowable as interest deductions under section one hundred sixty-three 30 of the internal revenue code to the extent such amounts are directly or 31 indirectly for, related to or in connection with the acquisition, use, 32 maintenance or management, ownership, sale, exchange or disposition of 33 such intangible assets. 34 (D) Valid business purpose. A valid business purpose is one or more 35 business purposes, other than the avoidance or reduction of taxation, 36 which alone or in combination constitute the primary motivation for some 37 business activity or transaction, which activity or transaction changes 38 in a meaningful way, apart from tax effects, the economic position of 39 the taxpayer. The economic position of the taxpayer includes an increase 40 in the market share of the taxpayer, or the entry by the taxpayer into 41 new business markets. 42 (2) Royalty expense add backs. (A) For the purpose of computing city 43 adjusted gross income, a taxpayer must add back royalty payments direct- 44 ly or indirectly paid, accrued, or incurred in connection with one or 45 more direct or indirect transactions with one or more related members 46 during the taxable year to the extent deductible in calculating federal 47 taxable income. 48 (B) Exceptions. (i) The adjustment required in this subdivision shall 49 not apply to the portion of the royalty payment that the taxpayer estab- 50 lishes, by clear and convincing evidence of the type and in the form 51 specified by the commissioner of finance, meets all of the following 52 requirements: (I) the related member was subject to tax in this city or 53 another city within the United States or a foreign nation or some combi- 54 nation thereof on a tax base that included the royalty payment paid, 55 accrued or incurred by the taxpayer; (II) the related member during the 56 same taxable year directly or indirectly paid, accrued or incurred suchS. 8474 918 1 portion to a person that is not a related member; and (III) the trans- 2 action giving rise to the royalty payment between the taxpayer and the 3 related member was undertaken for a valid business purpose. 4 (ii) The adjustment required in this subdivision shall not apply if 5 the taxpayer establishes, by clear and convincing evidence of the type 6 and in the form specified by the commissioner of finance, that: (I) the 7 related member was subject to tax on or measured by its net income in 8 this city or another city within the United States, or some combination 9 thereof; (II) the tax base for said tax included the royalty payment 10 paid, accrued or incurred by the taxpayer; and (III) the aggregate 11 effective rate of tax applied to the related member in those jurisdic- 12 tions is no less than eighty percent of the statutory rate of tax that 13 applied to the taxpayer under section 11-1701 of this chapter for the 14 taxable year. 15 (iii) The adjustment required in this subdivision shall not apply if 16 the taxpayer establishes, by clear and convincing evidence of the type 17 and in the form specified by the commissioner of finance, that: (I) the 18 royalty payment was paid, accrued or incurred to a related member organ- 19 ized under the laws of a country other than the United States; (II) the 20 related member's income from the transaction was subject to a comprehen- 21 sive income tax treaty between such country and the United States; (III) 22 the related member was subject to tax in a foreign nation on a tax base 23 that included the royalty payment paid, accrued or incurred by the 24 taxpayer; (IV) the related member's income from the transaction was 25 taxed in such country at an effective rate of tax at least equal to that 26 imposed by this city; and (V) the royalty payment was paid, accrued or 27 incurred pursuant to a transaction that was undertaken for a valid busi- 28 ness purpose and using terms that reflect an arm's length relationship. 29 (iv) The adjustment required in this subdivision shall not apply if 30 the taxpayer and the commissioner of finance agree in writing to the 31 application or use of alternative adjustments or computations. The 32 commissioner of finance may, in his or her discretion, agree to the 33 application or use of alternative adjustments or computations when he or 34 she concludes that in the absence of such agreement the income of the 35 taxpayer would not be properly reflected. 36 (u) Alimony modifications. (1) In the case of applicable alimony or 37 separate maintenance payments, the following modifications shall apply: 38 (A) There shall be subtracted from federal adjusted gross income any 39 applicable alimony or separate maintenance payments made by the taxpayer 40 during the taxable year. 41 (B) There shall be added to federal adjusted gross income any applica- 42 ble alimony or separate maintenance payments received by the taxpayer 43 during the taxable year. 44 (2) (A) The term "alimony or separate maintenance payments" means 45 payments as defined under section seventy-one of the internal revenue 46 code in effect immediately prior to the enactment of Public Law 115-97. 47 (B) The term "applicable alimony or separate maintenance payments" 48 means payments made under an alimony or separation instrument, as 49 defined in section seventy-one of the internal revenue code in effect 50 immediately prior to the enactment of Public Law 115-97, that was 51 executed after December thirty-first, two thousand eighteen, and any 52 divorce or separation instrument executed on or before such date and 53 modified after such date if the modification expressly provides that the 54 amendments made by this section apply to such modification.S. 8474 919 1 (v) Qualified moving expense reimbursement and moving expenses. (1) In 2 the case of applicable qualified moving expense reimbursement and moving 3 expenses, the following modifications shall apply: 4 (A) There shall be subtracted from federal adjusted gross income any 5 applicable qualified moving expense reimbursement received by the 6 taxpayer during the taxable year. 7 (B) There shall be subtracted from federal adjusted gross income any 8 applicable moving expenses paid by the taxpayer during the taxable year. 9 (2) Applicable qualified moving expense reimbursement and moving 10 expenses are those deductions as allowed by paragraph (g) of section one 11 hundred thirty-two and section two hundred seventeen, respectfully, of 12 the internal revenue code immediately prior to the enactment of Public 13 Law 115-97. 14 § 11-1713 City deduction of a resident individual. The city 15 deduction of a city resident individual shall be his or her city stand- 16 ard deduction unless such resident individual elects to deduct his or 17 her city itemized deduction under the conditions set forth in section 18 11-1715 of this chapter. 19 § 11-1714 City standard deduction of a city resident individual. (a) 20 Unmarried individual. For taxable years beginning after nineteen hundred 21 ninety-five, the city standard deduction of a city resident individual 22 who is not married nor the head of a household nor a surviving spouse 23 nor an individual who is claimed as a dependent by another New York 24 state taxpayer shall be seven thousand five hundred dollars; for taxable 25 years beginning in nineteen hundred ninety-five, such standard deduction 26 shall be seven thousand four hundred dollars; for taxable years begin- 27 ning in nineteen hundred ninety-four, such standard deduction shall be 28 six thousand six hundred dollars; and for taxable years beginning after 29 nineteen hundred eighty-nine and before nineteen hundred ninety-four, 30 such standard deduction shall be six thousand dollars. 31 (b) Husband and wife filing jointly and surviving spouse. For taxable 32 years beginning after nineteen hundred ninety-five, the city standard 33 deduction of a husband and wife whose city taxable income is determined 34 jointly or a surviving spouse shall be thirteen thousand dollars; for 35 taxable years beginning in nineteen hundred ninety-five, such standard 36 deduction shall be twelve thousand three hundred fifty dollars; for 37 taxable years beginning in nineteen hundred ninety-four, such standard 38 deduction shall be ten thousand eight hundred dollars; and for taxable 39 years beginning after nineteen hundred eighty-nine and before nineteen 40 hundred ninety-four, such standard deduction shall be nine thousand five 41 hundred dollars. 42 (c) Head of household. For taxable years beginning after nineteen 43 hundred ninety-five, the city standard deduction of an individual who is 44 a head of household shall be ten thousand five hundred dollars; for 45 taxable years beginning in nineteen hundred ninety-five, such standard 46 deduction shall be ten thousand dollars; for taxable years beginning in 47 nineteen hundred ninety-four, such standard deduction shall be eight 48 thousand one hundred fifty dollars; and for taxable years beginning 49 after nineteen hundred eighty-nine and before nineteen hundred ninety- 50 four, such standard deduction shall be seven thousand dollars. 51 (d) Married individuals filing separately. For taxable years beginning 52 after nineteen hundred ninety-five, the city standard deduction of a 53 married individual filing a separate return shall be six thousand five 54 hundred dollars; for taxable years beginning in nineteen hundred nine- 55 ty-five, such standard deduction shall be six thousand one hundred 56 seventy-five dollars; for taxable years beginning in nineteen hundredS. 8474 920 1 ninety-four, such standard deduction shall be five thousand four hundred 2 dollars; and for taxable years beginning after nineteen hundred eighty- 3 nine and before nineteen hundred ninety-four, such standard deduction 4 shall be four thousand seven hundred fifty dollars. 5 (e) Standard deduction of a dependent individual. For taxable years 6 beginning after nineteen hundred ninety-five, the city standard 7 deduction of a city resident individual whose federal exemption amount 8 is zero shall be three thousand dollars; for taxable years beginning in 9 nineteen hundred ninety-five, such standard deduction shall be two thou- 10 sand nine hundred dollars; and for taxable years beginning after nine- 11 teen hundred eighty-nine and before nineteen hundred ninety-five, such 12 standard deduction shall be two thousand eight hundred dollars. 13 (f) For taxable years beginning on or after January first, two thou- 14 sand thirteen, the amounts of standard deductions set forth in this 15 section shall be adjusted in the same manner as the amounts of standard 16 deductions set forth in section six hundred fourteen of the tax law. 17 § 11-1715 City itemized deduction of a city resident individual. 18 (a) General. If federal taxable income of a city resident individual 19 is determined by itemizing deductions or claiming the federal standard 20 deduction from his or her federal adjusted gross income, such resident 21 individual may elect to deduct his or her city itemized deduction or 22 claim his or her city standard deduction. 23 The city itemized deduction of a city resident individual means the 24 total amount of his or her deductions from federal adjusted gross income 25 allowed, other than federal deductions for personal exemptions, as 26 provided in the laws of the United States for the taxable year, as such 27 deductions existed immediately prior to the enactment of Public Law 28 115-97 with the modifications specified in this section, except as 29 provided for under subdivision (f) of this section. 30 (b) Husband and wife. 31 (1) A husband and wife, both of whom are required to file returns 32 under this chapter, shall be allowed city itemized deductions only if 33 both elect to take city itemized deductions. 34 (2) The total of the city itemized deductions of a husband and wife 35 whose federal taxable income is determined on a joint return, but whose 36 city taxable incomes are required to be determined separately, shall be 37 divided between them as if their federal taxable incomes had been deter- 38 mined separately. 39 (c) Modifications reducing federal itemized deductions. The total 40 amount of deductions from federal adjusted gross income shall be reduced 41 by the amount of such federal deductions for: 42 (1) state and local general sales taxes as defined in subsection (b) 43 of section one hundred sixty-four of the internal revenue code, to the 44 extent included in federal itemized deductions or income taxes imposed 45 by this city or any other taxing jurisdiction, except city earnings 46 taxes on nonresidents that are imposed upon and paid by taxpayers for 47 taxable years beginning after December thirty-first, nineteen hundred 48 seventy and before January first, two thousand, to the extent that the 49 amount of such tax exceeds the tax computed as if the rates were one- 50 fourth of one percent of wages subject to tax and three-eighths of one 51 percent of net earnings from self-employment subject to tax; 52 (2) interest on indebtedness incurred or continued to purchase or 53 carry obligations or securities the interest on which is exempt from tax 54 under this chapter; and 55 (3) ordinary and necessary expenses paid or incurred during the taxa- 56 ble year for: (i) the production or collection of income which is exemptS. 8474 921 1 from tax under this chapter, or (ii) the management, conservation or 2 maintenance of property held for the production of such income, and the 3 amortizable bond premium for the taxable year on any bond the interest 4 on which is exempt from tax under this chapter, to the extent that such 5 expenses and premiums are deductible in determining federal taxable 6 income. 7 (4) premiums paid for long-term care insurance to the extent that such 8 premiums are deductible in determining federal taxable income. 9 (6) in the case of a shareholder of an S corporation: 10 (A) where the election provided for in subsection (a) of section six 11 hundred sixty of the tax law has not been made, S corporation items of 12 deduction included in federal itemized deductions, and 13 (B) in the case of a New York S termination year, the portion of such 14 items assigned to the period beginning on the day the election ceases to 15 be effective, as determined under subdivision (s) of section 11-1712 of 16 this subchapter. 17 (d) Modifications increasing federal itemized deductions. The total 18 amount of deductions from federal adjusted gross income shall be 19 increased by: 20 (1) (Reserved.) 21 (2) interest on indebtedness incurred or continued to purchase or 22 carry obligations or securities the interest on which is subject to tax 23 under this chapter but exempt from federal income tax, to the extent 24 that such interest on indebtedness is not deductible for federal income 25 tax purposes and is not subtracted from federal adjusted gross income 26 pursuant to paragraph nine of subdivision (c) of section 11-1712 of this 27 subchapter; and 28 (3) ordinary and necessary expenses paid or incurred during the taxa- 29 ble year for: (i) the production or collection of income which is 30 subject to tax under this chapter but exempt from federal income tax, or 31 (ii) the management, conservation or maintenance of property held for 32 the production of such income, and the amortizable bond premium for the 33 taxable year on any bond the interest on which is subject to tax under 34 this chapter but exempt from federal income tax, to the extent that such 35 expenses and premiums are not deductible in determining federal adjusted 36 gross income and are not subtracted from federal adjusted gross income 37 pursuant to paragraph ten of subdivision (c) of section 11-1712 of this 38 subchapter. 39 (4) allowable college tuition expenses, as defined in paragraph two of 40 subsection (t) of section six hundred six of the tax law, multiplied by 41 the applicable percentage. Such applicable percentage shall be twenty- 42 five percent for taxable years beginning in two thousand one, fifty 43 percent for taxable years beginning in two thousand two, seventy-five 44 percent for taxable years beginning in two thousand three and one 45 hundred percent for taxable years beginning after two thousand three. 46 Provided, however, no deduction shall be allowed under this paragraph to 47 a taxpayer who claims the credit provided under subsection (t) of 48 section six hundred six of the tax law. 49 (e) Modification of partners and shareholders of S corporations. (1) 50 Partners and shareholders of S corporations which are not New York C 51 corporations. The amounts of modifications under subdivision (c) or 52 under paragraph two or three of subdivision (d) required to be made by a 53 partner or by a shareholder of an S corporation, other than an S corpo- 54 ration which is a New York C corporation, with respect to items of 55 deduction of a partnership or S corporation shall be determined under 56 section 11-1717 of this subchapter.S. 8474 922 1 (2) Shareholders of S corporations which are New York C corporations. 2 In the case of a shareholder of an S corporation which is a New York C 3 corporation, the modifications under this section which relate to the 4 corporation's items of deduction shall not apply, except for the modifi- 5 cation provided under paragraph six of subdivision (c) of this section. 6 (3) New York S termination year. In the case of a New York S termi- 7 nation year, the amounts of the modifications required under this 8 section which relate to the S corporation's items of deduction shall be 9 adjusted in the same manner that the S corporation's items are adjusted 10 under subdivision (s) of section 11-1712 of this subchapter. 11 (f) Except as otherwise provided under subdivision (g) of this 12 section, the city itemized deduction otherwise allowable under this 13 section shall be reduced by the sum of the amounts determined under 14 paragraphs one and two of this subdivision. 15 (1) An amount equal to the city itemized deduction otherwise allowable 16 under subdivision (a) of this section, multiplied by a percentage, such 17 percentage to be determined by multiplying, for taxable years beginning 18 in nineteen hundred eighty-eight, ten percent, and for taxable years 19 beginning after nineteen hundred eighty-eight, twenty-five percent, by a 20 fraction, 21 (A) in the case of an unmarried individual or married individual 22 filing a separate return, the numerator of which is the lesser of fifty 23 thousand dollars or the excess of such individual's city adjusted gross 24 income over one hundred thousand dollars and the denominator of which is 25 fifty thousand dollars; 26 (B) in the case of a married individual filing a joint return or a 27 surviving spouse, the numerator of which is the lesser of fifty thousand 28 dollars or the excess of such individual's city adjusted gross income 29 over two hundred thousand dollars and the denominator of which is fifty 30 thousand dollars; 31 (C) in the case of a head of household, the numerator of which is the 32 lesser of fifty thousand dollars or the excess of such individual's city 33 adjusted gross income over one hundred fifty thousand dollars and the 34 denominator of which is fifty thousand dollars. 35 (2) An amount equal to the city itemized deduction of an individual 36 otherwise allowable under subdivision (a) of this section, multiplied by 37 a percentage, such percentage to be determined by multiplying, for taxa- 38 ble years beginning in nineteen hundred eighty-eight, ten percent, and 39 for taxable years beginning after nineteen hundred eighty-eight, twen- 40 ty-five percent, by a fraction, the numerator of which is the lesser of 41 fifty thousand dollars or the excess of such individual's city adjusted 42 gross income over four hundred seventy-five thousand dollars and the 43 denominator of which is fifty thousand dollars. 44 (g) Notwithstanding subdivision (a) of this section, the city itemized 45 deduction for charitable contributions shall be the amount allowed under 46 section one hundred seventy of the internal revenue code, as limited by 47 this subdivision. (1) With respect to an individual whose New York 48 adjusted gross income is over one million dollars but no more than ten 49 million dollars, the New York itemized deduction shall be an amount 50 equal to fifty percent of any charitable contribution deduction allowed 51 under section one hundred seventy of the internal revenue code for taxa- 52 ble years beginning after two thousand nine and before two thousand 53 twenty-five. With respect to an individual whose New York adjusted gross 54 income is over one million dollars, the New York itemized deduction 55 shall be an amount equal to fifty percent of any charitable contribution 56 deduction allowed under section one hundred seventy of the internalS. 8474 923 1 revenue code for taxable years beginning in two thousand nine or after 2 two thousand twenty-four. 3 (2) With respect to an individual whose New York adjusted gross income 4 is over ten million dollars, the New York itemized deduction shall be an 5 amount equal to twenty-five percent of any charitable contribution 6 deduction allowed under section one hundred seventy of the internal 7 revenue code for taxable years beginning after two thousand nine and 8 ending before two thousand twenty-five. 9 § 11-1716 City exemptions of a city resident individual. (a) Gener- 10 al. For taxable years beginning after nineteen hundred eighty-seven, a 11 city resident individual shall be allowed a city exemption of one thou- 12 sand dollars for each exemption for which such resident individual is 13 entitled to a deduction for the taxable year under subsection (c) of 14 section one hundred fifty-one of the internal revenue code; and for 15 taxable years beginning in nineteen hundred eighty-seven, a city resi- 16 dent individual other than a taxpayer whose federal exemption amount is 17 zero shall be allowed a city exemption of nine hundred dollars for each 18 exemption for which he or she is entitled to a deduction for the taxable 19 year for federal income tax purposes. 20 (b) Husband and wife. If the city income taxes of a husband and wife 21 are required to be separately determined but their federal income tax is 22 determined on a joint return, each of them shall be separately entitled 23 to the city exemptions under subdivision (a) of this section to which 24 each would be separately entitled for the taxable year if their federal 25 income taxes had been determined on separate returns. 26 § 11-1717 Resident partners and shareholders of S corporations. (a) 27 Partner's and shareholder's modifications. In determining city adjusted 28 gross income and city taxable income of a city resident partner or a 29 city resident shareholder of an S corporation, other than an S corpo- 30 ration which is a New York C corporation, any modification described in 31 subdivision (b), (c) or (d) of section 11-1712 of this subchapter, or 32 subdivision (c) of section 11-1715 of this subchapter or paragraph two 33 or three of subdivision (d) of such section, which relates to an item of 34 partnership or S corporation income, gain, loss or deduction shall be 35 made in accordance with the partner's distributive share or the share- 36 holder's pro rata share, for federal income tax purposes, of the item to 37 which the modification relates. Where a partner's distributive share or 38 a shareholder's pro rata share of any such item is not required to be 39 taken into account separately for federal income tax purposes, the part- 40 ner's or shareholder's share of such item shall be determined in accord- 41 ance with his or her share, for federal income tax purposes, of partner- 42 ship or S corporation taxable income or loss generally. In the case of 43 a New York S termination year, his or her pro rata share of any such 44 item shall be determined under subdivision (s) of section 11-1712 of 45 this subchapter. 46 (b) Character of items. Each item of partnership and S corporation 47 income, gain, loss, or deduction shall have the same character for a 48 partner or shareholder under this subchapter as for federal income tax 49 purposes. Where an item is not characterized for federal income tax 50 purposes, it shall have the same character for a partner or shareholder 51 as if realized directly from the source from which realized by the part- 52 nership or S corporation or incurred in the same manner as incurred by 53 the partnership or S corporation. 54 (c) City tax avoidance or evasion. Where a partner's distributive 55 share of an item of partnership income, gain, loss or deduction is 56 determined for federal income tax purposes by special provision in theS. 8474 924 1 partnership agreement with respect to such item, and where the principal 2 purpose of such provision is the avoidance or evasion of tax under this 3 chapter, the partner's distributive share of such item, and any modifi- 4 cation required with respect thereto, shall be determined as if the 5 partnership agreement made no special provision with respect to such 6 item. 7 § 11-1717.1 Residents; special provisions. Notwithstanding any other 8 provisions of this chapter, the city adjusted gross income and the city 9 taxable income of a resident individual or partner of a partnership 10 doing an insurance business as a member of the New York insurance 11 exchange described in section six thousand two hundred one of the insur- 12 ance law, shall not include any item of income, gain, loss or deduction 13 of such business, which is the individual's distributive or pro rata 14 share for federal income tax purposes or which the individual is 15 required to take into account separately for federal income tax 16 purposes. Provided however, such individual's city adjusted gross 17 income shall include his or her distributive or pro rata share of the 18 allocated entire net income as determined by such business under 19 sections fifteen hundred three and fifteen hundred four of the tax law. 20 In the event such allocated entire net income is a loss, there shall not 21 be subtracted from federal adjusted gross income in computing city 22 adjusted gross income such individual's distributive share of such loss. 23 § 11-1718 City taxable income of a city resident estate or trust. 24 The city taxable income of a city resident estate or trust means its 25 federal taxable income as defined in the laws of the United States for 26 the taxable year, with the following modifications: 27 (2) There shall be subtracted the modifications described in para- 28 graphs four and five of subdivision (c) of section 11-1712 of this 29 subchapter, with respect to gains from the sale or other disposition of 30 property, to the extent such gains are excluded from federal distribut- 31 able net income of the estate or trust. 32 (3) There shall be added or subtracted, as the case may be, the share 33 of the estate or trust in the city fiduciary adjustment determined under 34 section 11-1719 of this subchapter. 35 (4) There shall be added or subtracted, as the case may be, the 36 modifications described in paragraphs six, ten, seventeen, eighteen, 37 nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four, 38 twenty-five, twenty-six, twenty-seven, twenty-nine, thirty-four and 39 thirty-five of subdivision (b) and in paragraphs eleven, thirteen, 40 fifteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, twen- 41 ty-four, twenty-five, twenty-six and twenty-eight of subdivision (c) of 42 section 11-1712 of this subchapter. 43 (5) In the case of a trust, there shall be added the amount of any 44 includible gain, reduced by any deductions properly allocable thereto, 45 upon which tax is imposed for the taxable year pursuant to section six 46 hundred forty-four of the internal revenue code. 47 § 11-1719 Share of a resident estate, trust or beneficiary in city 48 fiduciary adjustment. (a) General. An adjustment shall be made in 49 determining city taxable income of a city resident estate or trust under 50 section 11-1718 of this subchapter, or city adjusted gross income of a 51 city resident beneficiary of any estate or trust under subdivision (d) 52 of section 11-1712 of this subchapter, in the amount of the share of 53 each in the city fiduciary adjustment as determined in this section. 54 (b) Definition. The city fiduciary adjustment shall be the net 55 amount of the modifications described in section 11-1712 of this 56 subchapter, including subdivision (d) if the estate or trust is a bene-S. 8474 925 1 ficiary of another estate or trust, in subdivision (c) and paragraphs 2 two and three of subdivision (d) of section 11-1715 of this subchapter, 3 and in subdivision (e) of this section, which relate to items of income, 4 gain, loss or deduction of an estate or trust. The net amount of such 5 modifications shall not include: 6 (1) Any modification described in paragraphs one and two of subdivi- 7 sion (b) and paragraphs one, two, four, five, six, and seven of subdivi- 8 sion (c) of section 11-1712 of this subchapter with respect to any 9 amount which, pursuant to the terms of the governing instrument, is paid 10 or permanently set aside for a charitable purpose during the taxable 11 year, and 12 (2) Any modification described in paragraph four or five of subdivi- 13 sion (c) of section 11-1712 of this subchapter, with respect to gains 14 from the sale or other disposition of property, to the extent such gains 15 are excluded from federal distributable net income of the estate or 16 trust. 17 (c) Shares of city fiduciary adjustment. 18 (1) The respective shares of an estate or trust and its benefici- 19 aries, including, solely for the purpose of this allocation, nonresident 20 beneficiaries, in the city fiduciary adjustment shall be in proportion 21 to their respective shares of federal distributable net income of the 22 estate or trust. 23 (2) If the estate or trust has no federal distributable net income 24 for the taxable year, the share of each beneficiary in the city fiduci- 25 ary adjustment shall be in proportion to his or her share of the estate 26 or trust income for such year, under local law or the governing instru- 27 ment, which is required to be distributed currently and any other 28 amounts of such income distributed in such year. Any balance of the 29 city fiduciary adjustment shall be allocated to the estate or trust. 30 (d) Alternate attribution of modifications. The tax commission may 31 by regulation establish such other method or methods of determining to 32 whom the items comprising the fiduciary adjustment shall be attributed, 33 as may be appropriate and equitable. Such method may be used by the 34 fiduciary in his or her discretion whenever the allocation of the fidu- 35 ciary adjustment pursuant to subdivision (c) of this section would 36 result in an inequity which is substantial both in amount and in 37 relation to the amount of the fiduciary adjustment. 38 (e) Additional modifications. (1) For any taxable year beginning after 39 December thirty-first, two thousand seventeen, and before January first, 40 two thousand twenty-six, to the extent that the estate or trust claimed 41 a deduction for taxes under section one hundred sixty-four of the inter- 42 nal revenue code that was limited to ten thousand dollars as provided in 43 subparagraph (B) of paragraph six of subdivision (b) of such section one 44 hundred sixty-four or was denied as a result of subparagraph (A) of 45 paragraph six of subdivision (b) of such section one hundred sixty-four, 46 there shall be subtracted the taxes paid or accrued in that taxable year 47 by an estate or trust that the estate or trust was not able to deduct 48 for federal income tax purposes because of such limitation or denial, 49 other than state and local sales taxes and income taxes described in 50 paragraph one of subdivision (c) of section 11-1715 of this subchapter. 51 In determining the makeup of the ten thousand dollars of deduction 52 claimed by the estate or trust under section one hundred sixty-four of 53 the internal revenue code, it shall be presumed that the ten thousand 54 dollars of deduction first comprises the state and local sales taxes or 55 income taxes the estate or trust accrued or paid during the taxable 56 year.S. 8474 926 1 (2) For any taxable year beginning after December thirty-first, two 2 thousand seventeen, and before January first, two thousand twenty-six, 3 there shall be subtracted the miscellaneous itemized deductions as 4 described in and limited by section sixty-seven of the internal revenue 5 code, but excluding the deductions described in subsection (e) of 6 section sixty-seven of such code, but determined without regard to 7 subsection (g) of such section. 8 (3) For any taxable year, there shall be added the amount of any 9 deduction allowed pursuant to section one hundred ninety-nine-A of the 10 internal revenue code. 11 § 11-1721 Credits to trust beneficiary receiving accumulation distrib- 12 ution. (a) General. A city resident beneficiary of a trust whose city 13 adjusted gross income includes all or part of an accumulation distrib- 14 ution by such trust, as defined in section six hundred sixty-five of the 15 internal revenue code, including a beneficiary who is required to make 16 the modification required by paragraph thirty-six of subdivision (b) of 17 section 11-1712 of this subchapter, shall be allowed (1) a credit 18 against the tax otherwise due under this chapter for all or a propor- 19 tionate part of any tax paid by the trust under this chapter or under 20 former title T of chapter forty-six of the code of the preceding munici- 21 pality, as it was in effect prior to September first, nineteen hundred 22 eighty-six, for any preceding taxable year which would not have been 23 payable if the trust had in fact made distributions to its beneficiaries 24 at the times and in the amounts specified in section six hundred sixty- 25 six of the internal revenue code; and (2) a credit against the taxes 26 imposed by this chapter for the taxable year for any income tax imposed 27 for the taxable year or any prior taxable year by another state of the 28 United States, a political subdivision thereof, or the District of 29 Columbia, upon income both derived therefrom and subject to tax under 30 this chapter, provided that the amount of the credit shall not exceed 31 the percentage of the tax otherwise due under this chapter determined by 32 dividing the portion of the income that is both taxable to the trust in 33 such other jurisdiction and taxable to the beneficiary under this chap- 34 ter by the total amount of the beneficiary's New York city income. 35 (b) Limitation. The credits under this section shall not reduce the 36 tax otherwise due from the beneficiary under this chapter to an amount 37 less than would have been due if the accumulation distribution or his or 38 her part thereof were excluded from his or her city adjusted gross 39 income. 40 § 11-1724 Computation of separate tax on the ordinary income portion 41 of lump sum distributions received by city resident individuals, estates 42 and trusts. (a) Amount of separate tax. The amount of tax imposed under 43 section 11-1703 of this chapter for any taxable year, with respect to 44 the ordinary income portion of a lump sum distribution received by a 45 city resident individual, estate or trust is an amount equal to five 46 times the tax which would be imposed by section 11-1701 of this chapter 47 at the rate set forth in paragraph three of subdivision (a) or (b), 48 whichever may be applicable, if the recipient of such lump sum distrib- 49 ution were an individual referred to in such subdivision and the city 50 taxable income were an amount equal to one-fifth of the excess of: 51 (1) the total taxable amount of the lump sum distribution for the 52 taxable year, over 53 (2) the minimum distribution allowance. 54 (b) Minimum distribution allowance. For purposes of this section, the 55 minimum distribution allowance shall be that which is calculated accord-S. 8474 927 1 ing to subparagraph (C) of paragraph one of subsection (e) of section 2 four hundred two of the internal revenue code. 3 (c) Multiple distributions and distributions of annuity contracts. 4 For purposes of this section, the rules concerning multiple distrib- 5 utions and distributions of annuity contracts as specified by paragraph 6 two of subsection (e) of section four hundred two of the internal reven- 7 ue code shall be applicable, except that references to "paragraph one 8 (A)" shall be deemed to be references to this section, and except that 9 only lump sum distributions, or portions thereof, and distributions of 10 annuity contracts subject to tax under this chapter shall be included, 11 and except that references to the secretary shall be deemed to be refer- 12 ences to the tax commission. 13 (d) Definitions and special rules. For purposes of this section, the 14 following provisions shall apply, to the extent applicable to the 15 taxpayer's federal tax on lump sum distributions: (1) the definitions 16 and special rules as specified in paragraph four of subsection (e) of 17 section four hundred two of the internal revenue code; and (2) the 18 special rules relating to (A) individuals who have attained the age of 19 fifty before January first, nineteen hundred eighty-six and (B) capital 20 gains, as specified in paragraphs three, four, five and six of 21 subsection (h) of section eleven hundred twenty-two of the tax reform 22 act of nineteen hundred eighty-six as enacted by public law 99-514, but 23 (i) in the event that paragraph three of such subsection is applicable, 24 clause (ii) of subparagraph (B) of such paragraph shall be applied using 25 a rate of one and seventy-two hundredths percent, and (ii) in the event 26 that paragraph five of such subsection is applicable, the words "five" 27 and "one-fifth" in subdivision (a) of this section shall be read as 28 "ten" and "one-tenth", respectively, and subdivision (a) of this section 29 shall be applied by using the rate of tax specified in subdivision (a) 30 of section 11-1702 of this chapter as such subdivision was in effect for 31 taxable years beginning in nineteen hundred eighty-six. 32 SUBCHAPTER 3 33 RETURNS AND PAYMENT OF TAX 34 § 11-1751 Returns and liabilities. (a) General. On or before the 35 fifteenth day of the fourth month following the close of a taxable year, 36 an income tax return under this chapter shall be made and filed by or 37 for every city resident individual, estate or trust required to file a 38 New York state personal income tax, including a separate tax on the 39 ordinary income portion of lump sum distributions, return for the taxa- 40 ble year. 41 (b) Husband and wife. (1) If the New York state personal income tax 42 liability of husband and wife is determined on a separate return, their 43 city personal income tax liabilities and returns shall be separate. 44 (2) If the New York state personal income tax liabilities of husband 45 and wife, other than a husband and wife described in paragraph three of 46 this subdivision, are determined on a joint return, they shall file a 47 joint city personal income tax return, and their tax liabilities shall 48 be joint and several except as provided in paragraphs four and five of 49 this subdivision and in subsection (e) of section six hundred eighty- 50 five of the tax law. 51 (3) If the New York state personal income tax liabilities of husband 52 and wife, other than a husband and wife described in paragraph three of 53 this subdivision are determined on a joint return, they shall file a 54 joint city personal income tax return, and their tax liabilities shallS. 8474 928 1 be joint and several except as provided in paragraph five of this subdi- 2 vision, section 11-1755 of this subchapter and subsection (e) of section 3 six hundred eighty-five of the tax law. 4 (4) If either husband or wife is a city resident and the other is a 5 city nonresident, and their New York state personal income tax liabil- 6 ities are determined on a joint return: 7 (A) they may elect to file a joint city personal income tax return as 8 if both were residents, in which case their city personal income tax 9 liabilities shall be joint and several except as provided in paragraphs 10 four and five of this subdivision and in subsection (e) of section six 11 hundred eighty-five of the tax law, or 12 (B) they may elect to file a joint city personal income tax return as 13 if both were residents, in which case their city personal income tax 14 liabilities shall be joint and several except as provided in paragraph 15 five of this subdivision, section 11-1755 of this subchapter and 16 subsection (e) of section six hundred eighty-five of the tax law, or 17 (C) the resident spouse may elect to file a separate city personal 18 income tax return, in which case his or her city personal income tax 19 liability shall be determined as if he or she were filing a separate New 20 York state personal income tax return. 21 (5) If a joint return has been made under this subdivision for a taxa- 22 ble year and only one spouse is liable for past-due support, or a past- 23 due legally enforceable debt, or a city of New York tax warrant judgment 24 debt, or an amount of a default in repayment of a guaranteed student, 25 state university or city university loan of which the state commissioner 26 of taxation and finance has been notified pursuant to section one 27 hundred seventy-one-c, one hundred seventy-one-d, one hundred seventy- 28 one-e, one hundred seventy-one-f or one hundred seventy-one-1 of the tax 29 law, as the case may be, then an overpayment and interest thereon shall 30 be credited against such past-due support, or a past-due legally 31 enforceable debt, or a city of New York tax warrant judgment debt, or 32 such amount of a default in repayment of a guaranteed student, state 33 university or city university loan, unless the spouse not liable for 34 such past-due support, or a past-due legally enforceable debt, or a city 35 of New York tax warrant judgment debt, or such amount of a default in 36 repayment of a guaranteed student, state university or city university 37 loan demands, on a declaration made in accordance with regulations or 38 instructions prescribed by the state commissioner of taxation and 39 finance, that the portion of the overpayment and interest attributable 40 to such spouse not be credited against the past-due support, or a past- 41 due legally enforceable debt, or a city of New York tax warrant judgment 42 debt, or amount of a default in repayment of a guaranteed student, state 43 university or city university loan owed by the other spouse. Upon such 44 demand, the state commissioner of taxation and finance shall determine 45 the amount of the overpayment attributable to each spouse in accordance 46 with regulations prescribed by the state commissioner of taxation and 47 finance and credit only that portion of the overpayment and interest 48 thereon attributable to the spouse liable for past-due support, or a 49 past-due legally enforceable debt, or a city of New York tax warrant 50 judgment debt, or amount of a default in repayment of a guaranteed 51 student, state university or city university loan against such past-due 52 support, or a past-due legally enforceable debt, or a city of New York 53 tax warrant judgment debt, or such amount of a default in repayment of a 54 guaranteed student, state university or city university loan. Such 55 demand may be filed (A) with the return of the spouse not liable for 56 past-due support or past-due legally enforceable debt, or a city of NewS. 8474 929 1 York tax warrant judgment debt, or default in repayment of a guaranteed 2 student, state university, or city university loan or (B) with the 3 commissioner of taxation and finance within ten days after notification 4 is provided such spouse by the commissioner of taxation and finance 5 pursuant to subdivision seven of section one hundred seventy-one-c, 6 subdivision six of section one hundred seventy-one-d, subdivision seven 7 of section one hundred seventy-one-e, subdivision seven of section one 8 hundred seventy-one-f or subdivision six of section one hundred seven- 9 ty-one-1 of the tax law. 10 (6) The state commissioner of taxation and finance shall clearly alert 11 married taxpayers, on all appropriate publications and instructions, 12 that their liability for tax will be joint and several if they file 13 joint income tax returns. The state commissioner of taxation and finance 14 shall include notice of an individual's right to relief from joint and 15 several liability pursuant to section six hundred fifty-four of the tax 16 law in the disclosure of rights statement required by section three 17 thousand four of the tax law and in any notice regarding collection of 18 tax due with respect to a liability on a joint return. 19 (c) Decedents. The return for any deceased individual shall be made 20 and filed by his or her executor, administrator, or other person charged 21 with his or her property. If a final return of a decedent is for a 22 fractional part of a year, the due date of such return shall be the 23 fifteenth day of the fourth month following the close of the twelve- 24 month period which began with the first day of such fractional part of 25 the year. 26 (d) Individuals under a disability. The return for an individual who 27 is unable to make a return by reason of minority or other disability 28 shall be made and filed by his or her guardian, committee, fiduciary or 29 other person charged with the care of his or her person or property 30 other than a receiver in possession of only a part of his or her proper- 31 ty, or by his or her duly authorized agent. 32 (e) Estates and trusts. The return for an estate or trust shall be 33 made and filed by the fiduciary. 34 (f) Joint fiduciaries. If two or more fiduciaries are acting jointly, 35 the return may be made by any one of them. 36 (h) Tax a debt. Any tax under this chapter, and any increase, interest 37 or penalty thereon, shall, from the time it is due and payable, be a 38 personal debt of the person liable to pay the same, to the city of New 39 York. 40 (i) Cross reference. For provisions as to information returns by part- 41 nerships, employers and other persons, see section 11-1758 of this 42 subchapter. 43 § 11-1752 Time and place for filing returns and paying tax. (a) 44 Except as provided in subdivision (b) of this section, a person required 45 to make and file a return under this chapter shall, without assessment, 46 notice or demand, pay any tax due thereon to the commissioner of taxa- 47 tion and finance on or before the date fixed for filing such return, 48 determined without regard to any extension of time for filing the 49 return. The commissioner shall prescribe by regulation the place for 50 filing any return, statement, or other document required pursuant to 51 this chapter and for payment of any tax. 52 (b) The commissioner of taxation and finance may allow individuals who 53 have income only from wages, salaries, tips and like remuneration for 54 services performed as an employee, interest, dividends and unemployment 55 compensation to elect to have the commissioner compute the tax due. To 56 provide for expeditious and uniform administration of the tax computa-S. 8474 930 1 tions which involve numerous variables, the commissioner may further 2 qualify, with regard to period of residency, deductions, credits, 3 exemptions, amount and character of gross income, and any other appro- 4 priate factors relative to calculation of tax, those individuals who may 5 elect to have their taxes computed by the commissioner. Any such 6 election shall be made on the form prescribed by the commissioner for 7 this purpose. If a qualified taxpayer elects to have the commissioner 8 compute the tax, the amount determined by the commissioner shall be paid 9 (i) within ten days from the date of the issuance of a notice and demand 10 therefor or (ii) on the date fixed for filing such return, determined 11 without regard to any extension of time for filing, whichever is later. 12 § 11-1753 Signing of returns and other documents. (a) General. Any 13 return, statement or other document required to be made pursuant to this 14 chapter shall be signed in accordance with regulations or instructions 15 prescribed by the tax commission. The fact that an individual's name is 16 signed to a return, statement, or other document, shall be prima facie 17 evidence for all purposes that the return, statement or other document 18 was actually signed by such individual. 19 (b) Partnerships. Any return, statement or other document required of 20 a partnership shall be signed by one or more partners. The fact that a 21 partner's name is signed to a return, statement, or other document, 22 shall be prima facie evidence for all purposes that such partner is 23 authorized to sign on behalf of the partnership. 24 (c) Certifications. The making or filing of any return, statement or 25 other document or copy thereof required to be made or filed pursuant to 26 this chapter, including a copy of a federal return, shall constitute a 27 certification by the person making or filing such return, statement or 28 other document or copy thereof that the statements contained therein are 29 true and that any copy filed is a true copy. 30 § 11-1754 Change of resident status during year. (a) General. If an 31 individual changes his or her status during his or her taxable year from 32 city resident to city nonresident, or from city nonresident to city 33 resident, such individual shall file one return as a resident for the 34 portion of the year during which he or she is a city resident, and a 35 return under chapter nineteen of this title, for the portion of the year 36 during which he or she is a city nonresident, subject to such exceptions 37 as the tax commission may prescribe by regulation. 38 (b) City taxable income as city resident. The city taxable income for 39 the portion of the year during which he or she is a city resident shall 40 be determined, except as provided in subdivision (c) of this section, as 41 if his or her taxable year for federal income tax purposes were limited 42 to the period of his or her city resident status. 43 (c) Special accruals. 44 (1) If an individual changes his or her status from city resident to 45 city nonresident, he or she shall, regardless of his or her method of 46 accounting, accrue for the portion of the taxable year prior to such 47 change of status any items of income, gain, loss or deduction accruing 48 prior to the change of status, if not otherwise properly includible, 49 whether or not because of an election to report on an installment basis, 50 or allowable for city income tax purposes for such portion of the taxa- 51 ble year or for a prior taxable year. The amounts of such accrued items 52 shall be determined with the applicable modifications described in 53 sections 11-1712 and 11-1715 of this chapter as if such accrued items 54 were includible or allowable for federal income tax purposes. 55 (2) If an individual changes his or her status from city nonresident 56 to city resident, he or she shall, regardless of his or her method ofS. 8474 931 1 accounting, accrue for the portion of the taxable year prior to such 2 change of status any items of income, gain, loss or deduction accruing 3 prior to the change of status, other than items derived from or 4 connected with New York state sources, if not otherwise properly inclu- 5 dible, whether or not because of an election to report on an installment 6 basis, or allowable for federal income tax purposes for such portion of 7 the taxable year or for a prior taxable year. The amounts of such 8 accrued items shall be determined with the applicable modifications 9 described in sections 11-1712 and 11-1715 of this chapter as if such 10 accrued items were includible or allowable for federal income tax 11 purposes. 12 (3) No item of income, gain, loss or deduction which is accrued under 13 this subdivision shall be taken into account in determining city 14 adjusted gross income or the city itemized deduction for any subsequent 15 taxable period. 16 (4) The accruals under this subdivision shall not be required if the 17 individual files with the tax commission a bond or other security 18 acceptable to the tax commission, conditioned upon the inclusion of 19 amounts accruable under this subdivision in city adjusted gross income 20 for one or more subsequent taxable years as if the individual had not 21 changed his or her resident status. 22 (5) The provisions of subdivisions (a), (b) and paragraphs one through 23 four of this subdivision shall apply if an individual changes his or her 24 status from a city resident to city nonresident or from a city nonresi- 25 dent to a city resident during a taxable year, or at the beginning of a 26 taxable year, as a result of a change of domicile or as a result of 27 becoming a city resident or city nonresident based on the definition 28 contained in subparagraph (B) of paragraph one of subdivision (b) of 29 section 11-1705 of this chapter. 30 (6) Except as provided in this paragraph, where an individual who is a 31 member of a partnership or shareholder of an S corporation changes 32 status from city resident to city nonresident, or from city nonresident 33 to city resident, the portion of the distributive or pro rata share of 34 income, gain and loss, less deductions attributable thereto, from a 35 partnership or S corporation shall be allocated to the resident and 36 nonresident periods of the partner or shareholder on a proportionate 37 basis throughout the taxable year of the partnership or S corporation. 38 In such event, the portion of the distributive or pro rata share allo- 39 cated to the period of residency shall be determined based on the number 40 of days of residency within the reporting period of the partnership or S 41 corporation over the total number of days in the reporting period of the 42 partnership or S corporation. Provided, however, that the commissioner 43 may require, or the individual may elect, to accrue to the period of 44 residence, and the period of nonresidence, the portion of the distribu- 45 tive or pro rata share of partnership or S corporation income, gain and 46 loss, less deductions attributable thereto, accruing during the individ- 47 ual's respective resident and nonresident periods in a manner that 48 reflects the date of accrual of said income, gain and loss by the part- 49 nership or S corporation. 50 (7) Except as provided in this paragraph, where an individual who is a 51 beneficiary of an estate or trust changes status from city resident to 52 city nonresident, or from city nonresident to city resident, the portion 53 of any estate or trust income credited, distributable, payable or 54 required to be distributed to such beneficiary shall be allocated to the 55 resident and nonresident periods of the beneficiary on a proportionate 56 basis throughout the taxable year of the estate or trust. In such event,S. 8474 932 1 the portion of such estate or trust income allocated to the period of 2 residency shall be determined based on the number of days of residency 3 within the reporting period of the estate or trust over the total number 4 of days in the reporting period of the estate or trust. Provided, howev- 5 er, that the commissioner may require, or the beneficiary may elect, to 6 accrue to the period of residence, and the period of nonresidence, the 7 portion of such estate or trust income accruing during the beneficiary's 8 respective resident and nonresident periods in a manner that reflects 9 the date of accrual of said estate or trust income by the estate or 10 trust. 11 (d) City minimum tax. Where two returns are required under this 12 section, the total of the taxes due thereon shall not be less than would 13 be due if the city taxable incomes reportable on the two returns were 14 included in one return. 15 (e) Proration. Where a return is required under this section, the 16 city personal exemptions allowable under section 11-1716 of this chapter 17 shall be prorated, under regulations of the tax commission, to reflect 18 the portions of the entire taxable year during which the individual was 19 a resident. 20 (f) Standard deduction. Where a return is required under this 21 section, the city standard deduction allowable on such return shall be 22 the amount allowed pursuant to the provisions of section 11-1714 of this 23 chapter, prorated according to the period covered by the return. 24 (g) Trusts. If the status of a trust changes during its taxable year 25 from city resident to city nonresident, or from city nonresident to city 26 resident, the fiduciary shall file one return as a city resident trust 27 for the portion of the year during which the trust is a city resident 28 trust, and one return under chapter nineteen of this title for the 29 portion of the year during which the trust is a city nonresident trust, 30 subject to such exceptions as the tax commission may prescribe by regu- 31 lations. The provisions of subdivisions (b), (c), (d) and (e) of this 32 section shall apply for the purposes of this subdivision, except to the 33 extent that any of such provisions may be inconsistent with the 34 provisions of section 11-1718 of this chapter, and except that the term 35 "individual" shall be read as "trust", the term "city adjusted gross 36 income" shall be read as "city taxable income", reference to "gain" 37 shall include any modification for includible gain under subdivision 38 five of section 11-1718 of this chapter, and the phrase "personal 39 exemptions allowable under section 11-1716 of this chapter" shall be 40 read as "city exemptions allowable under section 11-1718 of this chap- 41 ter." 42 (h) Lump sum distributions. If the status of a taxpayer changes 43 during his or her taxable year from city resident to city nonresident, 44 or from city nonresident to city resident, the taxpayer shall, regard- 45 less of his method of accounting, accrue for the portion of the taxable 46 year prior to such change of status the total taxable amount of a lump 47 sum distribution accruing prior to the change of status, if the ordinary 48 income portion thereof is not otherwise subject to tax under section 49 11-1703 of this chapter for such portion of the taxable year or for a 50 prior taxable year. No ordinary income portion of a lump sum distrib- 51 ution the total taxable amount of which is accrued under this subdivi- 52 sion shall be subject to tax under section 11-1703 of this chapter for 53 any subsequent taxable period. The accrual under this subdivision shall 54 not be required if the taxpayer files with the tax commission a bond or 55 other security acceptable to the tax commission, conditioned upon the 56 payment of tax under section 11-1703 of this chapter, with respect toS. 8474 933 1 such amount accruable under this subdivision, for a subsequent taxable 2 year as if the taxpayer had not changed its resident status. 3 (i) Deduction for two-earner married couples. Where a return is 4 required under this section, the amount of deduction under paragraph 5 twenty-nine of subdivision (c) of section 11-1712 of this chapter shall 6 be equal to ten percent of the lesser of: 7 (1) thirty thousand dollars, pro rated according to the period covered 8 by the return or 9 (2) the qualified earned income of the spouse with the lower qualified 10 earned income for the period covered by the return. 11 § 11-1755 Relief from joint and several liability on joint return. 12 (a) General. The provisions of section six thousand fifteen of the 13 internal revenue code applicable to the liability of individuals who 14 file joint income tax returns shall apply to the same extent as if such 15 section of such code were contained in and made part of this section, 16 except to the extent that any provision of such section is either incon- 17 sistent with or not relevant to this chapter and except as modified in 18 subdivision (b) of this section, or with such other modifications as may 19 be necessary to adapt the language of such provisions to the provisions 20 of this chapter. 21 (b) Modifications. Section six thousand fifteen of the internal reven- 22 ue code shall be read as modified by this subdivision. 23 (1) "Secretary" shall be read as "state commissioner of taxation and 24 finance". 25 (2) "Internal revenue service" shall be read as "department of taxa- 26 tion and finance". 27 (3) "Tax court" shall be read as "division of tax appeals". 28 (4) In the heading of subsection (a) and in clause (ii) of subpara- 29 graph (A) of paragraph three of subsection (c), the phrase "section 30 6013(d)(3)" shall be read as "paragraphs two and three of subdivision 31 (b) of section 11-1751 of this chapter". 32 (5) In paragraph three of subsection (b), the phrase "section 33 6662(d)(2)(A)" shall be read as "subdivision (p) of section 11-1785 of 34 this chapter". 35 (6) In subparagraph (B) of paragraph two of subsection (d), the phrase 36 "section 1 or 55" shall be read as "section 11-1701 of this chapter". 37 (7) In clause (i) of subparagraph (B) of paragraph one of subsection 38 (e), the phrase "section 6851 or 6861" shall be read as "section 11-1794 39 of this chapter" and "section 7485" shall be read as "subdivision (c) of 40 section 11-1790 of this chapter". 41 (8) In paragraph two of subsection (e), the phrase "section 6502" 42 shall be read as "section one hundred seventy-four-a of the tax law and 43 section 11-1792 of this chapter". 44 (9) In subparagraph (A) of paragraph three of subsection (e), the 45 phrase "section 6512(b), 7121, or 7122" shall be read as "subdivision 46 fifteenth, eighteenth, eighteenth-a or eighteenth-d of section one 47 hundred seventy-one of the tax law and subdivision (b) of section 48 11-1789 of this chapter". 49 (10) The following provisions of such section six thousand fifteen 50 shall be disregarded: (A) The phrase "notwithstanding the provisions of 51 section 7421(a)" contained in clause (ii) of subparagraph (B) of para- 52 graph one of subsection (e); and (B) subparagraph (C) of paragraph three 53 of subsection (e). 54 (c) Federal determination. If an individual is relieved of a federal 55 income tax liability pursuant to subsection (b) of section six thousand 56 fifteen of the internal revenue code, there shall be a rebuttableS. 8474 934 1 presumption that such individual shall also be entitled to equivalent 2 relief from liability under this section, to the extent that such indi- 3 vidual has an understatement of tax under this chapter for the same 4 taxable year that is attributable to the same erroneous item or items to 5 which the individual's federal income tax liability was attributable. 6 § 11-1757 Extensions of time. (a) General. The commissioner of taxa- 7 tion and finance may grant a reasonable extension of time for payment of 8 tax or estimated tax, or any installment, or for filing any return, 9 statement, or other document required pursuant to this chapter, on such 10 terms and conditions as it may require. Except for a taxpayer who is 11 outside the United States or who intends to claim nonresident status 12 pursuant to clause (ii) of subparagraph (A) of paragraph one of subdivi- 13 sion (b) of section 11-1705 of this chapter, no such extension for 14 filing any return, statement or other document, shall exceed six months. 15 (b) Furnishing of security. If any extension of time is granted for 16 payment of any amount of tax, the tax commission may require the taxpay- 17 er to furnish a bond or other security in an amount not exceeding twice 18 the amount for which the extension of time for payment is granted on 19 such terms and conditions as the tax commission may require. 20 § 11-1758 Requirements concerning returns, notices, records and state- 21 ments. (a) General. The tax commission may prescribe regulations as to 22 the keeping of records, the content and form of returns and statements, 23 and the filing of copies of federal income tax returns and determi- 24 nations. The tax commission may require any person, by regulation or 25 notice served upon such person, to make such returns, render such state- 26 ments, or keep such records, as the tax commission may deem sufficient 27 to show whether or not such person is liable under this chapter for tax 28 or for collection of tax. 29 (b) Identifying numbers. (1) When required by regulations prescribed 30 by the tax commission: 31 (A) Inclusion in returns. Any person required under the authority of 32 this chapter to make a return, statement, or other document shall 33 include in such return, statement or other document such identifying 34 number as may be prescribed for securing proper identification of such 35 person. 36 (B) Furnishing number to other persons. Any person with respect to 37 whom a return, statement or other document is required under the author- 38 ity of this chapter to be made by another person shall furnish to such 39 other person such identifying number as may be prescribed for securing 40 his or her proper identification. 41 (C) Furnishing number of another person. Any person required under the 42 authority of this chapter to make a return, statement, or other document 43 with respect to another person shall request from such other person, and 44 shall include in any such return, statement, or other document, such 45 identifying number as may be prescribed for securing proper identifica- 46 tion of such other person. 47 (2) Limitation. 48 (A) Except as provided in subparagraph (B) of this paragraph, a return 49 of any person with respect to his or her liability for tax, or any 50 statement or other document in support thereof, shall not be considered 51 for purposes of subparagraphs (B) and (C) of paragraph one of this 52 subdivision as a return, statement or other document with respect to 53 another person. 54 (B) For purposes of subparagraphs (B) and (C) of paragraph one of this 55 subdivision, a return of an estate or trust with respect to its liabil- 56 ity for tax, and any statement or other document in support thereof,S. 8474 935 1 shall be considered as a return, statement, or other document with 2 respect to each beneficiary of such estate or trust. 3 (3) Requirement of information. For purposes of this section, the tax 4 commission is authorized to require such information as may be necessary 5 to assign an identifying number to any person. 6 (c) Partnerships and S corporations. 7 (1) Partnerships. Every partnership having a city resident partner 8 shall make a return for the taxable year setting forth all items of 9 income, gain, loss and deduction and such other pertinent information as 10 the tax commission may by regulations and instructions prescribe. Such 11 return shall be filed on or before the fifteenth day of the fourth month 12 following the close of each taxable year except that the due date for 13 the return of a partnership consisting entirely of nonresident aliens 14 shall be the date prescribed for the filing of its federal partnership 15 return for the taxable year. For purposes of this paragraph, "taxable 16 year" means a year or a period which would be a taxable year of the 17 partnership if it were subject to tax under this chapter. 18 (2) S corporations. Every S corporation for which the election 19 provided for in subsection (a) of section six hundred sixty of the tax 20 law is in effect shall make a return setting forth all items of income, 21 loss and deduction and such other pertinent information as the tax 22 commission may by regulations and instructions prescribe. Such return 23 shall be filed on or before the fifteenth day of the third month follow- 24 ing the close of each taxable year. 25 (d) Information at source. The tax commission may prescribe regu- 26 lations and instructions requiring returns of information to be made and 27 filed on or before February twenty-eighth of each year as to the payment 28 or crediting in any calendar year of amounts of six hundred dollars or 29 more to any taxpayer under this chapter. Such returns may be required of 30 any persons, including lessees or mortgagors of real or personal proper- 31 ty, fiduciaries, employers, and all officers and employees of this 32 state, or of any municipal corporation or political subdivision of this 33 state, having the control, receipt, custody, disposal or payment of 34 interest, rents, salaries, wages, premiums, annuities, compensations, 35 remunerations, emoluments or other fixed or determinable gains, profits 36 or income, except interest coupons payable to bearer. A duplicate of the 37 statement as to tax withheld on wages, required to be furnished by an 38 employer to an employee, shall constitute the return of information 39 required to be made under this section with respect to such wages. 40 (e) Notice of qualification as receiver, etc. Every receiver, trustee 41 in bankruptcy, assignee for benefit of creditors, or other like fiduci- 42 ary shall give notice of his or her qualification as such to the tax 43 commission, as may be required by regulation. 44 (g) Requirements applicable to tax return preparer. 45 (1) Signature of tax return preparer. Any individual who is a tax 46 return preparer and prepares any return or claim for refund, shall sign 47 such return or claim for refund in accordance with regulations or 48 instructions prescribed by the commissioner of taxation and finance. 49 (2) Furnishing identifying numbers. Any return or claim for refund 50 which is prepared by a tax return preparer shall include the identifying 51 number of the preparer required by paragraph one of this subdivision to 52 sign such return or claim for refund. In addition, where such individual 53 preparer is an employee of an employer which is a tax return preparer 54 with respect to such return or claim for refund, or where such preparer 55 is a partner in a partnership which is a tax return preparer with 56 respect to such return or claim for refund, then such return or claimS. 8474 936 1 for refund shall also include the identifying number of such employer or 2 partnership. Such identifying numbers shall be as prescribed by the 3 commissioner of taxation and finance in order to secure the proper iden- 4 tification of such individual preparer, partnership or employer. The 5 responsibility for the inclusion of such identifying numbers shall be as 6 set forth in paragraph two of subdivision (t) of section 11-1785 of this 7 chapter. 8 (3) Furnishing copy to taxpayer. Any person who is a tax return 9 preparer with respect to any return or claim for refund shall furnish a 10 completed copy of such return or claim for refund to the taxpayer not 11 later than the time such return or claim for refund is presented for 12 such taxpayer's signature. 13 (4) Copy or list to be retained by tax return preparer. Any person who 14 is a tax return preparer with respect to any return or claim for refund 15 shall for a three year retention period described in paragraph nine of 16 this subdivision: 17 (A) retain a completed copy of such return or claim for refund, or 18 retain, on a list, the name and identification number of the taxpayer 19 for whom such return or claim was prepared, and 20 (B) make such copy or list available for inspection upon request by 21 the commissioner of taxation and finance. 22 (5) Tax return preparer defined. For purposes of this chapter, the 23 term "tax return preparer" means any person who prepares for compen- 24 sation, or who employs or engages one or more persons to prepare for 25 compensation any return or claim for refund. The preparation of a 26 substantial portion of a return or claim for refund shall be treated as 27 if it were the preparation of such return or claim for refund. Where an 28 employer and one or more employees of such employer are tax return 29 preparers with respect to the same return or claim for refund, or where 30 a partnership and one or more partners in such partnership are tax 31 return preparers with respect to the same return or claim for refund, 32 for purposes of paragraphs three and four of this subdivision, such 33 employer or such partnership shall be deemed to be the sole tax return 34 preparer. A person shall not be a "tax return preparer" merely because 35 such person: 36 (A) furnishes typing, reproducing, or other mechanical assistance, 37 (B) prepares a return or claim for refund of the employer, or of an 38 officer or employee of the employer, by whom he or she is regularly and 39 continuously employed, or 40 (C) prepares as a fiduciary a return or claim for refund for any 41 person. 42 (6) Person defined. For purposes of this subdivision, the term 43 "person" includes an individual, corporation, including a dissolved 44 corporation, or partnership. 45 (7) Return defined. For purposes of this subdivision, the term 46 "return" shall mean any return required under this chapter. 47 (8) Claim for refund defined. For purposes of this subdivision, the 48 term "claim for refund" shall mean a claim for refund of or credit 49 against any tax imposed under this chapter, and shall include any claim 50 for refund of any credit treated as an overpayment of tax under this 51 chapter. 52 (9) Retention period defined. For purposes of this subdivision, the 53 term "retention period" shall mean: 54 (A) in the case of a tax return, the period ending the later of three 55 years after the due date of such return, without regard to extensions,S. 8474 937 1 or three years after the date such return was presented to the taxpayer 2 for such taxpayer's signature, and 3 (B) in the case of a claim for refund, the period ending three years 4 after such claim for refund was presented to the taxpayer for such 5 taxpayer's signature. 6 (10) Mandatory electronic filing by certain tax return preparers. 7 (A)(i) If a tax return preparer prepared more than two hundred original 8 returns during the calendar year beginning on January first, two thou- 9 sand five, and if, in the calendar year beginning on January first, two 10 thousand six, such tax return preparer prepares one or more authorized 11 returns using tax software, then, for such calendar year two thousand 12 six and for each subsequent calendar year thereafter, all authorized 13 returns prepared by such tax return preparer shall be filed electron- 14 ically, in accordance with instructions prescribed by the commissioner 15 of taxation and finance. 16 (ii) If a tax return preparer prepared more than one hundred original 17 returns during any calendar year beginning on or after January first, 18 two thousand six, and if, in any succeeding calendar year such tax 19 return preparer prepares one or more authorized returns using tax soft- 20 ware, then, for such succeeding calendar year and for each subsequent 21 calendar year thereafter, all authorized returns prepared by such tax 22 return preparer shall be filed electronically, in accordance with 23 instructions prescribed by the commissioner of taxation and finance. 24 (B) For purposes of this paragraph: (i) "Electronic" means computer 25 technology; provided, however, that the commissioner of taxation and 26 finance may, in instructions, provide that use of barcode technology 27 will also satisfy the mandatory electronic filing requirements of this 28 section. 29 (ii) "Authorized return" means any return required under this article 30 which the commissioner of taxation and finance has authorized to be 31 filed electronically. 32 (iii) "Original return" means a return required under this article 33 that is filed, without regard to extensions, during the calendar year 34 for which that return is required to be filed. 35 (iv) "Tax software" means any computer software program intended for 36 tax return preparation purposes. 37 § 11-1759 Report of federal changes, corrections or disallowances. If 38 the amount of a taxpayer's federal taxable income, total taxable amount 39 or ordinary income portion of a lump sum distribution or includible gain 40 of a trust reported on his federal income tax return for any taxable 41 year, or the amount of any claim of right adjustment, is changed or 42 corrected by the United States internal revenue service or other compe- 43 tent authority, or as the result of a renegotiation of a contract or 44 subcontract with the United States or the amount an employer is required 45 to deduct and withhold from wages for federal income tax withholding 46 purposes is changed or corrected by such service or authority or if a 47 taxpayer's claim for credit or refund of federal income tax is disal- 48 lowed in whole or in part, the taxpayer or employer shall report such 49 change or correction or disallowance within ninety days after the final 50 determination of such change, correction, renegotiation, or disallow- 51 ance, or as otherwise required by the commissioner, and shall concede 52 the accuracy of such determination or state wherein it is erroneous. The 53 allowance of a tentative carryback adjustment based upon a net operating 54 loss carryback pursuant to section sixty-four hundred eleven of the 55 internal revenue code shall be treated as a final determination for 56 purposes of this section. Any taxpayer filing an amended federal incomeS. 8474 938 1 tax return and any employer filing an amended federal return of income 2 tax withheld shall also file within ninety days thereafter an amended 3 return under this chapter, and shall give such information as the 4 commissioner may require. The commissioner may by regulation prescribe 5 such exceptions to the requirements of this section as he or she deems 6 appropriate. For purposes of this section, (i) the term "taxpayer" shall 7 include a partnership having a resident partner or having any income 8 derived from New York sources, and a corporation with respect to which 9 the taxable year of such change, correction, disallowance or amendment 10 is a year with respect to which the election provided for in subsection 11 (a) of section six hundred sixty of the tax law is in effect, and (ii) 12 the term "federal income tax return" shall include the returns of income 13 required under sections six thousand thirty-one and six thousand thir- 14 ty-seven of the internal revenue code. In the case of such a corpo- 15 ration, such report shall also include any change or correction of the 16 taxes described in paragraphs two and three of subsection (f) of section 17 thirteen hundred sixty-six of the internal revenue code. Reports made 18 under this section by a partnership or corporation shall indicate the 19 portion of the change in each item of income, gain, loss or deduction, 20 and, in the case of a corporation, of each change in, or disallowance of 21 a claim for credit or refund of such tax, allocable to each partner or 22 shareholder and shall set forth such identifying information with 23 respect to such partner or shareholder as may be prescribed by the 24 commissioner. 25 § 11-1761 Change of election. Any election expressly authorized by 26 this chapter may be changed on such terms and conditions as the tax 27 commission may prescribe by regulation. 28 § 11-1762 Computation of tax where taxpayer restores substantial 29 amount held under claim of right. (a) General. If: 30 (1) an item was included in city adjusted gross income for a prior 31 taxable year, or years, because it appeared that the taxpayer had an 32 unrestricted right to such item, and 33 (2) for the current taxable year the provisions of paragraph five of 34 subsection (a) of section thirteen hundred forty-one of the internal 35 revenue code apply to such item, then the tax imposed by this chapter 36 for the taxable year shall be an amount equal to 37 (3) the tax for the taxable year computed without regard to this 38 section, minus 39 (4) the decrease in tax under this chapter for the prior taxable year, 40 or years, which would result solely from the exclusion of such item, or 41 portion thereof, from city adjusted gross income for such prior taxable 42 year, or years. 43 (b) Special rules. If the decrease in tax ascertained under paragraph 44 four of subdivision (a) of this section exceeds the tax imposed by this 45 chapter for the taxable year, such excess shall be considered a payment 46 of tax on the last day prescribed by law for the payment of tax for the 47 taxable year, and shall be refunded or credited in the same manner as if 48 it were an overpayment for such taxable year. 49 SUBCHAPTER 4 50 WITHHOLDING OF TAX 51 § 11-1771 Requirement of withholding tax from wages. (a) General. (1) 52 Every employer maintaining an office or transacting business within this 53 city or state and making payment on and after January first, nineteen 54 hundred seventy-seven of any wages taxable under this chapter, or underS. 8474 939 1 section two of chapter eight hundred eighty-two of the laws of nineteen 2 hundred seventy-five, as amended by chapter eight hundred eighty-six of 3 the laws of nineteen hundred seventy-five, shall deduct and withhold 4 from such wages for each payroll period a tax computed in such manner as 5 to result, so far as practicable, in withholding from the employee's 6 wages during each calendar year an amount substantially equivalent to 7 the tax reasonably estimated to be due under this chapter or such 8 section two resulting from the inclusion in the employee's city adjusted 9 gross income of his or her wages received during such calendar year. 10 The method of determining the amount to be withheld shall be prescribed 11 by regulations of the tax commission, with due regard to the city with- 12 holding exemptions of the employee and the sum of any credits allowable 13 against his or her tax. The section shall not apply to payments by the 14 United States for service in the armed forces of the United States so 15 long as the right to require deduction and withholding of tax from such 16 payments is prohibited by the laws of the United States. Service in the 17 armed forces of the United States shall have the same meaning as when 18 used in a comparable context in the laws of the United States relating 19 to withholding of city income taxes. 20 (2) The tax commission may provide, by regulations, for withholding: 21 (A) from remuneration for services performed by an employee for his or 22 her employer which does not constitute wages, and 23 (B) from remuneration for services performed by an employee for his or 24 her employer which does not constitute wages, and (B) from any other 25 type of payment, with respect to which the tax commission finds that 26 withholding would be appropriate under the provisions of this chapter, 27 if the employer and the employee, or in the case of any other type of 28 payment the person making and the person receiving the payment, agree to 29 such withholding. Such agreement shall be made in such form and manner 30 as the tax commission may by regulations provide. For purposes of this 31 chapter, remuneration or other payments with respect to which such 32 agreement is made shall be treated as if they were wages paid by an 33 employer to an employee to the extent that such remuneration is paid or 34 other payments are made during the period for which the agreement is in 35 effect. 36 (3) The tax commission shall provide by regulation for an exemption 37 from withholding for: (i) employees under eighteen years of age, (ii) 38 employees under twenty-five years of age who are full-time students and 39 (iii) employees over sixty-five years of age, provided such employees 40 had no income tax liability in the prior year and can reasonably antic- 41 ipate none in the current year. 42 (b) Extension of withholding to certain periodic payments and gambling 43 winnings. 44 (1) For purposes of this chapter, any payment subject to withholding, 45 within the meaning of paragraph two of this subdivision, shall be treat- 46 ed as if it were wages paid by an employer to an employee. 47 (2) Payments subject to withholding. For purposes of paragraph one of 48 this subdivision, a payment subject to withholding means: 49 (A) Any supplemental unemployment compensation benefit paid to an 50 individual to the extent includible in such individual's city adjusted 51 gross income. 52 (B) Any member or employee contributions to a retirement system or 53 pension fund picked up by the employer pursuant to subdivision f of 54 section five hundred seventeen or subdivision d of section six hundred 55 thirteen of the retirement and social security law or section 13-225.1, 56 13-327.1, 13-125.1, 13-125.2 or 13-521.1 of the code of the precedingS. 8474 940 1 municipality or subdivision nineteen of section twenty-five hundred 2 seventy-five of the education law. 3 (C) Any payment of an annuity to an individual to the extent includi- 4 ble in such individual's city adjusted gross income, if at the time the 5 payment is made a request that such annuity be subject to withholding 6 under this chapter is in effect. 7 (D) Any payment of winnings from a wager placed in a lottery conducted 8 by the division of the lottery, if the proceeds from such wager exceed 9 five thousand dollars and such proceeds are payable pursuant to a prize 10 claim made by an individual who was a resident of the city at the time 11 of the selection of the prize winning lottery ticket. 12 (F) Any amount deducted or deferred from an employee's salary under a 13 flexible benefits program established pursuant to section twenty-three 14 of the general municipal law or section one thousand two hundred ten-a 15 of the public authorities law. 16 (G) Any amount by which an employee's salary is reduced pursuant to 17 the provisions of subdivision b of section 12-126.1 and subdivision b of 18 section 12-126.2 of the code of the preceding municipality. 19 (3) Additional provisions applicable to this subdivision. 20 (A) Request for annuity withholding. A request that an annuity be 21 subject to withholding under this chapter shall be made by the payee in 22 writing to the person making the annuity payments. 23 Such a request may, notwithstanding any provision of law to the 24 contrary, be terminated by furnishing to the person making the payments 25 a written statement of termination. Such a request for withholding or 26 statement of termination shall take effect in such manner as the commis- 27 sioner of taxation and finance shall prescribe. 28 (B) Withholding on lottery winnings upon change of residence. If a 29 payee of lottery winnings subject to the provisions of subparagraph (D) 30 of paragraph two of this subdivision changes status from resident to 31 nonresident, withholding in accordance with such subparagraph shall 32 constitute other security acceptable to the commissioner of taxation and 33 finance within the meaning of paragraph four of subdivision (c) of 34 section 11-1754 of this chapter, unless such payee elects, in such 35 manner as the commissioner of taxation and finance shall prescribe, to 36 apply the provisions of paragraph one of such subdivision (c) to the 37 proceeds, in which case withholding under this subdivision shall no 38 longer apply to such proceeds. 39 (C) Proceeds. For purposes of subparagraphs (D) and (E) of paragraph 40 two of this subdivision, proceeds from a wager shall be determined by 41 reducing the amount received by the amount of the wager. 42 (D) Taxes withheld at maximum rate. The tax withheld on any payment 43 subject to withholding under subparagraph (D) or (E) of paragraph two of 44 this subdivision shall be withheld at the highest rate of tax on city 45 taxable income, without any allowance for deductions or exemptions, in 46 effect under this chapter for the taxable year in which the payment is 47 made. 48 (E) Determination of residence. For purposes of applying the 49 provisions of subparagraphs (D) and (E) of paragraph two of this subdi- 50 vision, any payor of proceeds shall determine the residence of the payee 51 of such proceeds in accordance with regulations or instructions of the 52 commissioner of taxation and finance or, in the absence of any such 53 regulations or instructions, in accordance with the address of the payee 54 required under the provisions of paragraph six of subsection (q) of 55 section thirty-four hundred two of the internal revenue code.S. 8474 941 1 (b) Extension of withholding to unemployment compensation benefits, 2 annuity payments, and lottery winnings. 3 (1) For purposes of this chapter: 4 (A) any supplemental unemployment compensation benefit paid to an 5 individual to the extent includible in such individual's city adjusted 6 gross income, 7 (B) any payment of an annuity to an individual to the extent includi- 8 ble in such individual's city adjusted gross income, if at the time the 9 payment is made a request that such annuity be subject to withholding 10 under this chapter is in effect, and 11 (C) any periodic payment (but only where such payment is part of a 12 series of payments extending over a period greater than one year), of 13 lottery winnings by the division of the lottery, if at the time the 14 payment is made a request that such lottery winnings be subject to with- 15 holding under this chapter is in effect, shall be treated as if it were 16 a payment of wages by an employer to an employee for a payroll period. 17 (D) any member or employee contributions to a retirement system or 18 pension fund picked up or paid by the employer for members of the 19 Manhattan and Bronx surface transportation authority pension plan and 20 treated as employer contributions in determining income tax treatment 21 under subdivision (h) of section four hundred fourteen of the Internal 22 Revenue Code. 23 (2) Request for withholding. A request that an annuity be subject to 24 withholding under this chapter shall be made by the payee in writing to 25 the person making the annuity payments, and a request that lottery 26 winnings be subject to withholding under this chapter shall be made by 27 the payee in writing to the division of the lottery, in the manner 28 prescribed by the commissioner of taxation and finance. A request that 29 an annuity be subject to withholding may, notwithstanding any provision 30 of law to the contrary, be terminated by furnishing to the person making 31 the payments a written statement of termination. A request that lottery 32 winnings be subject to withholding under this chapter shall not be revo- 33 cable while the payee is a nonresident, and shall constitute other secu- 34 rity acceptable to the tax commission within the meaning of paragraph 35 four of subdivision (c) of section 11-1754 of this chapter. 36 Such a request for withholding or statement of termination shall take 37 effect in such manner as the commissioner of taxation and finance shall 38 provide by regulation. 39 (c) Withholding exemptions. For purposes of this section: 40 (1) The number of city withholding exemptions which an employee 41 receiving wages taxable under this chapter may claim shall not exceed 42 the number of city exemptions allowed pursuant to the provisions of 43 section 11-1716 of this chapter and such additional city withholding 44 exemptions as may be prescribed by regulations or instructions of the 45 commissioner of taxation and finance, taking into account the applicable 46 standard deduction and such other factors as he or she finds appropri- 47 ate. 48 (2) The amount of each city withholding exemption shall be the amount 49 of the city exemption allowed pursuant to the provisions of section 50 11-1716 of this chapter. 51 (3) Withholding exemption certificate. An employee shall be required 52 to file with his or her employer a withholding exemption certificate in 53 accordance with regulations or instructions prescribed by the commis- 54 sioner of taxation and finance. 55 § 11-1772 Information statement for employee. Every employer required 56 to deduct and withhold tax under this chapter from the wages of anS. 8474 942 1 employee, or who would have been required so to deduct and withhold tax 2 if the employee had claimed no more than one withholding exemption, 3 shall furnish to each such employee in respect of the wages paid by such 4 employer to such employee during the calendar year on or before February 5 fifteenth of the succeeding year, or, if his or her employment is termi- 6 nated before the close of such calendar year, within thirty days from 7 the date on which the last payment of the wages is made, a written 8 statement as prescribed by the tax commission showing the amount of 9 wages paid by the employer to the employee, the amount deducted and 10 withheld as tax, and such other information as the tax commission shall 11 prescribe. 12 § 11-1773 Credit for tax withheld. Wages upon which tax is required 13 to be withheld shall be taxable under this chapter as if no withholding 14 were required, but any amount of tax actually deducted and withheld 15 under this chapter in any calendar year shall be deemed to have been 16 paid to the tax commission on behalf of the person from whom withheld, 17 and such person shall be credited with having paid that amount of tax 18 for the taxable year beginning in such calendar year. 19 For a taxable year of less than twelve months, the credit shall be 20 made under regulations of the tax commission. 21 § 11-1774 Employer's return and payment of withheld taxes. (a) Gener- 22 al. Every employer required to deduct and withhold tax under this chap- 23 ter shall file a withholding return and pay over to the tax commission 24 or to a depository designated by the tax commission, the taxes so 25 required to be deducted and withheld, as hereafter prescribed. 26 (1) If, after having made a payroll, an employer has been required to 27 deduct and withhold, but has not paid over, a cumulative aggregate 28 amount of seven hundred dollars or more of tax during a calendar quar- 29 ter, such employer shall file a return and pay over the tax. If an 30 employer was required to remit a cumulative aggregate amount of less 31 than fifteen thousand dollars in withholding tax during the calendar 32 year which precedes the previous calendar year, the tax shall be paid 33 over on or before the fifth business day following the date of making 34 such a payroll. If an employer was required to remit a cumulative aggre- 35 gate amount more than or equal to fifteen thousand dollars in withhold- 36 ing tax during the calendar year which precedes the previous calendar 37 year, the tax shall be paid over on or before the third business day 38 following the date of making such a payroll. In the case of an "educa- 39 tional organization" as defined in paragraph two of subsection (a) of 40 section nine of the tax law or a "health care provider" as defined in 41 paragraph four of subsection (a) of section nine of the tax law, the tax 42 shall be paid over on or before the fifth business day following the 43 date of making such a payroll. 44 (2) If, at the close of any calendar quarter, an employer has been 45 required to deduct and withhold, but has not paid over, a cumulative 46 aggregate amount of less than seven hundred dollars of tax during such 47 calendar quarter, such employer shall pay over the tax with the quarter- 48 ly combined withholding, wage reporting and unemployment insurance 49 return required to be filed for such quarter by paragraph four of this 50 subdivision, on or before the last date prescribed by such paragraph for 51 filing such return. 52 (3) If an employer makes more than one payroll per week, then such 53 employer shall determine the applicability of the rules described in 54 paragraphs one and two of this subdivision measured by the last payroll 55 made within the week by such employer; provided, however, that in any 56 week in which the end of a quarter occurs between the making of payrollsS. 8474 943 1 by an employer, any tax required to be deducted and withheld in a 2 payroll or payrolls made during such week prior to or on the end of the 3 quarter shall be paid over. If an employer was required to remit a cumu- 4 lative aggregate amount of less than fifteen thousand dollars in with- 5 holding tax during the calendar year preceding the previous calendar 6 year, the tax shall be paid over on or before the fifth business day 7 following the date of making the last payroll in such quarter. If an 8 employer was required to remit a cumulative aggregate amount more than 9 or equal to fifteen thousand dollars in withholding tax during the 10 calendar year preceding the previous calendar year, the tax shall be 11 paid over on or before the third business day following the date of 12 making the last payroll in such quarter. In the case of an "educational 13 organization" as defined in paragraph two of subsection (a) of section 14 nine of the tax law or a "health care provider" as defined in paragraph 15 four of subsection (a) of section nine of the tax law, the tax shall be 16 paid over on or before the fifth business day following the date of 17 making such a payroll. For purposes of this paragraph, the term "week" 18 shall mean the period Sunday through Saturday. 19 (4)(A) All employers described in paragraph one of subdivision (a) of 20 section 11-1771 of this subchapter, including those whose wages paid are 21 not sufficient to require the withholding of tax from the wages of any 22 of their employees, all employers required to provide the wage reporting 23 information for the employees described in subdivision one of section 24 one hundred seventy-one-a of the tax law, and all employers liable for 25 unemployment insurance contributions or for payments in lieu of such 26 contributions pursuant to article eighteen of the labor law, shall file 27 a quarterly combined withholding, wage reporting and unemployment insur- 28 ance return with the department of taxation and finance detailing the 29 preceding calendar quarter's withholding tax transactions, such quar- 30 ter's wage reporting information, such quarter's unemployment insurance 31 contributions, and such other related information as the commissioner of 32 taxation and finance or the commissioner of labor, as applicable, may 33 prescribe. In addition, the return covering the last calendar quarter of 34 each year shall also include withholding reconciliation information for 35 such calendar year. Such returns shall be filed no later than the last 36 day of the month following the last day of each calendar quarter; 37 provided, however, that an employer may provide the wage reporting 38 information covering the last calendar quarter of each year, and the 39 withholding reconciliation information for such year no later than 40 February twenty-eighth of the succeeding year. 41 (B) An employer shall, at the time prescribed by subparagraph (A) of 42 this paragraph for filing each quarterly combined withholding, wage 43 reporting and unemployment insurance return, pay over, in a single 44 remittance, the unemployment insurance contributions and aggregate with- 45 holding taxes required to be paid over with such return. 46 Notwithstanding any provision of law to the contrary, an overpayment 47 of unemployment insurance contributions or of aggregate withholding 48 taxes made by an employer with the quarterly combined withholding, wage 49 reporting and unemployment insurance return for a calendar quarter may 50 be only credited by such employer against such employer's liability for 51 unemployment insurance contributions or aggregate withholding taxes, 52 respectively. 53 (5) The tax commission may, if it believes such action necessary for 54 the protection of the revenues, require any employer to make such return 55 and pay to it the tax deducted and withheld at any time, or from time to 56 time.S. 8474 944 1 (6) "Aggregate amount" as used in paragraphs one, two and three of 2 this subdivision means the aggregate of the aggregate amounts of New 3 York state personal income tax, city personal income tax on residents 4 and city earnings tax on nonresidents authorized to be deducted and 5 withheld. 6 (b) Deposit in trust for tax commission. Whenever any employer fails 7 to collect, truthfully account for, pay over the tax, or make returns of 8 the tax as required in this section, the tax commission may serve a 9 notice requiring such employer to collect the taxes which become collec- 10 tible after service of such notice, to deposit such taxes in a bank 11 approved by the tax commission, in a separate account, in trust for and 12 payable to the tax commission, and to keep the amount of such tax in 13 such account until payment over to the tax commission. Such notice 14 shall remain in effect until a notice of cancellation is served by the 15 tax commission. 16 § 11-1775 Employer's liability for withheld taxes. Every employer 17 required to deduct and withhold tax under this chapter is hereby made 18 liable for such tax. For purposes of assessment and collection, any 19 amount required to be withheld and paid over to the tax commission, and 20 any additions to tax, penalties and interest with respect thereto, shall 21 be considered the tax of the employer. Any amount of tax actually 22 deducted and withheld under this chapter shall be held to be a special 23 fund in trust for the tax commission. No employee shall have any right 24 of action against his or her employer in respect to any moneys deducted 25 and withheld from his or her wages and paid over to the tax commission 26 in compliance or in intended compliance with this chapter. 27 § 11-1776 Employer's failure to withhold. If an employer fails to 28 deduct and withhold tax as required, and thereafter the tax against 29 which such tax may be credited is paid, the tax so required to be 30 deducted and withheld shall not be collected from the employer, but the 31 employer shall not be relieved from liability for any penalties, inter- 32 est, or additions to the tax otherwise applicable in respect of such 33 failure to deduct and withhold. 34 § 11-1777 Designation of third parties to perform acts required of 35 employers. In case a fiduciary, agent, or other person has the control, 36 receipt, custody, or disposal of, or pays the wages of an employee or 37 group of employees, employed by one or more employers, the tax commis- 38 sion, under regulations promulgated by it, is authorized to designate 39 such fiduciary, agent, or other person to perform such acts as are 40 required of employers under this chapter and as the tax commission may 41 specify. Except as may be otherwise prescribed by the tax commission, 42 all provisions of law, including penalties, applicable in respect of an 43 employer shall be applicable to a fiduciary, agent, or other person so 44 designated but, except as so provided, the employer for whom such fidu- 45 ciary, agent, or other person acts shall remain subject to the 46 provisions of law, including penalties, applicable in respect of employ- 47 ers. 48 § 11-1778 Liability of third parties paying or providing for wages. 49 (a) Direct payment by third party. If a lender, surety or other person, 50 who is not an employer with respect to an employee or group of employ- 51 ees, pays wages directly to such an employee or group of employees, 52 employed by one or more employers, or to an agent on behalf of such 53 employee or employees, such lender, surety or other person shall be 54 liable for the amount of taxes, together with interest, required to be 55 deducted and withheld from such wages by the employer.S. 8474 945 1 (b) Funds supplied to employer by third parties. If a lender, surety 2 or other person supplies funds to or for the account of an employer for 3 the specific purpose of paying wages of the employees of such employer, 4 with actual notice or knowledge that such employer does not intend to or 5 will not be able to make timely payment or deposit of the amounts of tax 6 required by this chapter to be deducted and withheld by such employer 7 from such wages, such lender, surety or other person shall be liable for 8 the amount of the taxes, together with interest, which are not paid over 9 to the tax commission by such employer with respect to such wages. 10 However, the liability of such lender, surety or other person shall be 11 limited to an amount equal to twenty-five percent of the amount so 12 supplied to or for the account of such employer for such purpose. 13 (c) Effect of payment. Any amounts paid to the tax commission pursuant 14 to this section shall be credited against the liability of the employer. 15 SUBCHAPTER 5 16 PROCEDURE AND ADMINISTRATION 17 § 11-1781 Notice of deficiency. (a) General. If upon examination of a 18 taxpayer's return under this chapter the tax commission determines that 19 there is a deficiency of income tax, it may mail a notice of deficiency 20 to the taxpayer. If a taxpayer fails to file an income tax return 21 required under this chapter, the tax commission is authorized to esti- 22 mate the taxpayer's city taxable income and tax thereon, from any infor- 23 mation in its possession, and to mail a notice of deficiency to the 24 taxpayer. A notice of deficiency shall be mailed by certified or regis- 25 tered mail to the taxpayer at his or her last known address in or out of 26 this state. If a husband and wife are jointly liable for tax, a notice 27 of deficiency may be a single joint notice, except that if the tax 28 commission has been notified by either spouse that separate residences 29 have been established, then, in lieu of the single joint notice, a 30 duplicate original of the joint notice shall be mailed to each spouse at 31 his or her last known address in or out of this state. If the taxpayer 32 is deceased or under a legal disability, a notice of deficiency may be 33 mailed to his or her last known address in or out of this state, unless 34 the tax commission has received notice of the existence of a fiduciary 35 relationship with respect to the taxpayer. 36 (b) Notice of deficiency as assessment. After ninety days from the 37 mailing of a notice of deficiency, such notice shall be an assessment of 38 the amount of tax specified in such notice, together with the interest, 39 additions to tax and penalties stated in such notice, except only for 40 any such tax or other amounts as to which the taxpayer has within such 41 ninety day period filed with the tax commission a petition under section 42 11-1789 of this subchapter. If the notice of deficiency is addressed to 43 a person outside of the United States, such period shall be one hundred 44 fifty days instead of ninety days. 45 (c) Restrictions on assessment and levy. No assessment of a deficiency 46 in tax and no levy or proceeding in court for its collection shall be 47 made, begun or prosecuted, except as otherwise provided in section 48 11-1794 of this subchapter, until a notice of deficiency has been mailed 49 to the taxpayer, nor until the expiration of the time for filing a peti- 50 tion contesting such notice, nor, if a petition with respect to the 51 taxable year has been filed with the tax commission, until the decision 52 of the tax commission has become final. For exception in the case of 53 judicial review of the decision of the tax commission, see subdivision 54 (c) of section 11-1790 of this subchapter. 55 (d) Exceptions for mathematical errors. If a mathematical error 56 appears on a return, including an overstatement of the credit for incomeS. 8474 946 1 tax withheld at the source, or of the amount paid as estimated income 2 tax, the tax commission shall notify the taxpayer that an amount of tax 3 in excess of that shown upon the return is due, and that such excess has 4 been assessed. Such notice shall not be considered as a notice of defi- 5 ciency for the purposes of this section, subdivision (f) of section 6 11-1787 of this subchapter, limiting credits or refunds after petition 7 to the tax commission, or subdivision (b) of section 11-1789 of this 8 subchapter, authorizing the filing of a petition with the tax commission 9 based on a notice of deficiency, nor shall such assessment or collection 10 be prohibited by the provisions of subdivision (c) of this section. 11 (e) Exceptions where federal changes, corrections or disallowances are 12 not reported. (1) If the taxpayer or employer fails to comply with 13 section 11-1759 of this chapter, instead of the mode and time of assess- 14 ment provided for in subdivision (b) of this section, the tax commission 15 may assess a deficiency based upon such federal change, correction or 16 disallowance by mailing to the taxpayer a notice of additional tax due 17 specifying the amount of the deficiency, and such deficiency, together 18 with the interest, additions to tax and penalties stated in such notice, 19 shall be deemed assessed on the date such notice is mailed unless within 20 thirty days after the mailing of such notice a report of the federal 21 change, correction or disallowance or an amended return, where such 22 return was required by section 11-1759 of this chapter, is filed accom- 23 panied by a statement showing wherein such federal determination and 24 such notice of additional tax due are erroneous. 25 (2) Such notice shall not be considered as a notice of deficiency for 26 the purposes of this section, subdivision (f) of section 11-1787 of this 27 subchapter, limiting credits or refunds after petition to the tax 28 commission, or subdivision (b) of section 11-1789 of this subchapter, 29 authorizing the filing of a petition with the tax commission based on a 30 notice of deficiency, nor shall such assessment or the collection there- 31 of be prohibited by the provisions of subdivision (c) of this section. 32 (3) If a husband and wife are jointly liable for tax, a notice of 33 additional tax due may be a single joint notice, except that if the tax 34 commission has been notified by either spouse that separate residences 35 have been established, then, in lieu of the joint notice, a duplicate 36 original of the joint notice shall be mailed to each spouse at his or 37 her last known address in or out of this state. If the taxpayer is 38 deceased or under a legal disability, a notice of additional tax due may 39 be mailed to his or her last known address in or out of this state, 40 unless the tax commission has received notice of the existence of a 41 fiduciary relationship with respect to the taxpayer. 42 (f) Waiver of restrictions. The taxpayer shall at any time, whether or 43 not a notice of deficiency has been issued, have the right to waive the 44 restrictions on assessment and collection of the whole or any part of 45 the deficiency by a signed notice in writing filed with the tax commis- 46 sion. 47 (g) Deficiency defined. For purposes of this chapter, a deficiency 48 means the amount of the tax imposed by this chapter, less (i) the amount 49 shown as the tax upon the taxpayer's return, whether the return was made 50 or the tax computed by such taxpayer or by the tax commission, and less 51 (ii) the amounts previously assessed, or collected without assessment, 52 as a deficiency and plus (iii) the amount of any rebates. For the 53 purpose of this definition, the tax imposed by this chapter and the tax 54 shown on the return shall both be determined without regard to payments 55 on account of estimated tax or the credit for withholding tax; and a 56 rebate means so much of an abatement, credit, refund or other repayment,S. 8474 947 1 whether or not erroneous, made on the ground that the amounts entering 2 into the definition of a deficiency showed a balance in favor of the 3 taxpayer. 4 § 11-1782 Assessment. (a) Assessment date. The amount of tax which a 5 return shows to be due, or the amount of tax which a return would have 6 shown to be due but for a mathematical error, shall be deemed to be 7 assessed on the date of filing of the return, including any amended 8 return showing an increase of tax. In the case of a return properly 9 filed without computation of tax, the tax computed by the tax commission 10 shall be deemed to be assessed on the date on which payment is due. If 11 a notice of deficiency has been mailed, the amount of the deficiency 12 shall be deemed to be assessed on the date specified in subdivision (b) 13 of section 11-1781 of this subchapter if no petition to the tax commis- 14 sion is filed, or if a petition is filed, then upon the date when a 15 decision of the tax commission establishing the amount of the deficiency 16 becomes final. If an amended return or report filed pursuant to section 17 11-1759 of this chapter concedes the accuracy of a federal change or 18 correction, any deficiency in tax under this chapter resulting therefrom 19 shall be deemed to be assessed on the date of filing such report or 20 amended return, and such assessment shall be timely notwithstanding 21 section 11-1783 of this subchapter. If a notice of additional tax due, 22 as prescribed in subdivision (e) of section 11-1781 of this subchapter, 23 has been mailed, the amount of the deficiency shall be deemed to be 24 assessed on the date specified in such subdivision unless within thirty 25 days after the mailing of such notice a report of the federal change or 26 correction or an amended return, where such return was required by 27 section 11-1759 of this chapter, is filed accompanied by a statement 28 showing wherein such federal determination and such notice of additional 29 tax due are erroneous. Any amount paid as a tax or in respect of a tax, 30 other than amounts withheld at the source or paid as estimated income 31 tax, shall be deemed to be assessed upon the date of receipt of payment, 32 notwithstanding any other provisions. 33 (b) Other assessment powers. If the mode or time for the assessment of 34 any tax under this chapter, including interest, additions to tax and 35 assessable penalties, is not otherwise provided for, the tax commission 36 may establish the same by regulations. 37 (c) Estimated income tax. No unpaid amount of estimated tax shall be 38 assessed. 39 (d) Omission of income, item of tax preference, total taxable amount 40 or ordinary income portion of a lump sum distribution on return. The tax 41 may be assessed at any time within six years after the return was filed 42 if: (1) an individual omits from his city adjusted gross income, the 43 sum of his items of tax preference, or the total taxable amount or ordi- 44 nary income portion of a lump sum distribution an amount properly inclu- 45 dible therein which is in excess of twenty-five percent of the amount of 46 city adjusted gross income, the sum of the items of tax preference or 47 the total taxable amount or ordinary income portion of a lump sum 48 distribution stated in the return, or (2) an estate or trust omits from 49 its city adjusted gross income, the sum of its items of tax preference, 50 or the total taxable amount or ordinary income portion of a lump sum 51 distribution an amount properly includible therein which is in excess of 52 twenty-five percent of the amount stated in the return of city adjusted 53 gross income, or the sum of the items of tax preference, or the total 54 taxable amount or ordinary income portion of a lump sum distribution, 55 respectively. For purposes of this paragraph, city adjusted gross incomeS. 8474 948 1 means New York adjusted gross income as determined under paragraph four 2 of subsection (e) of section six hundred one of the tax law. 3 For purposes of this subdivision there shall not be taken into account 4 any amount which is omitted in the return if such amount is disclosed in 5 the return, or in a statement attached to the return, in a manner 6 adequate to apprise the commissioner of the nature and amount of the 7 item of income, tax preference, the total taxable amount or ordinary 8 income portion of a lump sum distribution. 9 (e) Cross reference. For assessment in case of jeopardy, see section 10 11-1794 of this subchapter. 11 § 11-1783 Limitations on assessment. (a) General. Except as otherwise 12 provided in this section, any tax under this chapter shall be assessed 13 within three years after the return was filed, whether or not such 14 return was filed on or after the date prescribed. 15 (b) Time return deemed filed. 16 (1) Early return. For purposes of this section a return of income tax, 17 except withholding tax, filed before the last day prescribed by law or 18 by regulations promulgated pursuant to law for the filing thereof, shall 19 be deemed to be filed on such last day. 20 (2) Return of withholding tax. For purposes of this section, if a 21 return of withholding tax for any period ending with or within a calen- 22 dar year is filed before April fifteenth of the succeeding calendar 23 year, such return shall be deemed to be filed on April fifteenth of such 24 succeeding calendar year. 25 (c) Exceptions. 26 (1) Assessment at any time. The tax may be assessed at any time if: 27 (A) no return is filed, 28 (B) a false or fraudulent return is filed with intent to evade tax, or 29 (C) the taxpayer or employer fails to comply with section 11-1759 of 30 this chapter. 31 (2) Extension by agreement. Where, before the expiration of the time 32 prescribed in this section for the assessment of tax, both the tax 33 commission and the taxpayer have consented in writing to its assessment 34 after such time, the tax may be assessed at any time prior to the expi- 35 ration of the period agreed upon. The period so agreed upon may be 36 extended by subsequent agreements in writing made before the expiration 37 of the period previously agreed upon. 38 (3) Report of federal changes, corrections or disallowances. If the 39 taxpayer or employer complies with section 11-1759 of this chapter, the 40 assessment, if not deemed to have been made upon the filing of the 41 report or amended return, may be made at any time within two years after 42 such report or amended return was filed. The amount of such assessment 43 of tax shall not exceed the amount of the increase in city tax attribut- 44 able to such federal change or correction. The provisions of this para- 45 graph shall not affect the time within which or the amount for which an 46 assessment may otherwise be made. 47 (4) Deficiency attributable to net operating loss carryback. If a 48 deficiency is attributable to the application to the taxpayer of a net 49 operating loss carryback, it may be assessed at any time that a defi- 50 ciency for the taxable year of the loss may be assessed. 51 (5) Recovery of erroneous refund. An erroneous refund shall be consid- 52 ered an underpayment of tax on the date made, and an assessment of a 53 deficiency arising out of an erroneous refund may be made at any time 54 within two years from the making of the refund, except that the assess- 55 ment may be made within five years from the making of the refund if itS. 8474 949 1 appears that any part of the refund was induced by fraud or misrepresen- 2 tation of a material fact. 3 (6) Request for prompt assessment. If a return is required for a dece- 4 dent or for a decedent's estate during the period of administration, the 5 tax shall be assessed within eighteen months after written request 6 therefor, made after the return is filed, by the executor, administrator 7 or other person representing the estate of such decedent, but not more 8 than three years after the return was filed, except as otherwise 9 provided in this subdivision and subdivision (d) of this section. 10 (7) Report on use of certain property. Under the circumstances 11 described in paragraph two of subdivision (g) of section 11-1712 of this 12 chapter, the tax may be assessed within three years after the filing of 13 a return reporting that property has been used for purposes other than 14 research and development to a greater extent than originally reported. 15 (8) Report concerning waste treatment facility, air pollution control 16 facility or eligible business facility. Under the circumstances 17 described in paragraph three of subdivision (h) of section 11-1712 of 18 this chapter, the tax may be assessed within three years after filing of 19 the return containing the information required by such paragraph, or, if 20 a certificate of compliance in respect to an air pollution control 21 facility shall be revoked, within three years after the tax commission 22 shall receive notice of such revocation from the taxpayer or as required 23 by section 19-0309 of the environmental conservation law, whichever 24 notice is received earlier. 25 (9) Except as otherwise provided in paragraph three of this subdivi- 26 sion, or as otherwise provided in this section where a longer period of 27 time may apply, if a taxpayer files an amended return, an assessment of 28 tax, if not deemed to have been made upon the filing of the amended 29 return, including recovery of a previously paid refund, attributable to 30 a change or correction on the amended return from a prior return may be 31 made at any time within one year after such amended return is filed. 32 (d) Omission of income, total taxable amount or ordinary income 33 portion of a lump sum distribution on return. The tax may be assessed at 34 any time within six years after the return was filed if: 35 (1) an individual omits from his city adjusted gross income the total 36 taxable amount or ordinary income portion of a lump sum distribution an 37 amount properly includible therein which is in excess of twenty-five 38 percent of the amount of city adjusted gross income or the total taxable 39 amount or ordinary income portion of a lump sum distribution stated in 40 the return, or 41 (2) an estate or trust omits from its city adjusted gross income, or 42 the total taxable amount or ordinary income portion of a lump sum 43 distribution an amount properly includible therein which is in excess of 44 twenty-five percent of the amount stated in the return of city adjusted 45 gross income, or the total taxable amount or ordinary income portion of 46 a lump sum distribution, respectively. For purposes of this paragraph, 47 city adjusted gross income means New York adjusted gross income as 48 determined under paragraph four of subsection (e) of section six hundred 49 one of the tax law. 50 For purposes of this subdivision there shall not be taken into account 51 any amount which is omitted in the return if such amount is disclosed in 52 the return, or in a statement attached to the return, in a manner 53 adequate to apprise the commissioner of the nature and amount of the 54 item of income, the total taxable amount or ordinary income portion of a 55 lump sum distribution.S. 8474 950 1 (e) Suspension of running of period of limitation. The running of the 2 period of limitations on assessment or collection of tax or other 3 amount, or of a transferee's liability, shall, after the mailing of a 4 notice of deficiency, be suspended for the period during which the tax 5 commission is prohibited under subdivision (c) of section 11-1781 of 6 this subchapter from making the assessment or from collecting by levy. 7 § 11-1784 Interest on underpayment. (a) General. If any amount of 8 income tax is not paid on or before the last date prescribed in this 9 chapter for payment, interest on such amount at the underpayment rate 10 set by the commissioner of taxation and finance pursuant to section 11 11-1797 of this subchapter, or if no rate is set, at the rate of seven 12 and one-half percent per annum shall be paid for the period from such 13 last date to the date paid, whether or not any extension of time for 14 payment was granted. Interest under this subdivision shall not be paid 15 if the amount thereof is less than one dollar. If the time for filing of 16 a return of tax withheld by an employer is extended, the employer shall 17 pay interest for the period for which the extension is granted and may 18 not charge such interest to the employee. 19 (b) Exception as to estimated tax. This section shall not apply to any 20 failure to pay estimated tax. 21 (c) Exception for mathematical error. No interest shall be imposed on 22 any underpayment of tax due solely to mathematical error if the taxpayer 23 files a return within the time prescribed in this chapter, including any 24 extension of time, and pays the amount of underpayment within three 25 months after the due date of such return, as it may be extended. 26 (d) Suspension of interest on deficiencies. If a waiver of 27 restrictions on assessment of a deficiency has been filed by the taxpay- 28 er, and if notice and demand by the tax commission for payment of such 29 deficiency is not made within thirty days after the filing of such waiv- 30 er, interest shall not be imposed on such deficiency for the period 31 beginning immediately after such thirtieth day and ending with the date 32 of notice and demand. 33 (e) Tax reduced by carryback. If the amount of tax for any taxable 34 year is reduced by reason of a carryback of a net operating loss, such 35 reduction in tax shall not affect the computation of interest under this 36 section for the period ending with the filing date for the taxable year 37 in which the net operating loss arises. Such filing date shall be deter- 38 mined without regard to extensions of time to file. 39 (f) Interest treated as tax. Interest under this section shall be paid 40 upon notice and demand and shall be assessed, collected and paid in the 41 same manner as income tax. Any reference in this chapter to the tax 42 imposed by this chapter shall be deemed also to refer to interest 43 imposed by this section on such tax. 44 (g) Interest on penalties or additions to tax. Interest shall be 45 imposed under subdivision (a) of this section in respect of any assessa- 46 ble penalty or addition to tax only if such assessable penalty or addi- 47 tion to tax is not paid within twenty-one calendar days from the date of 48 the notice and demand therefor under subdivision (b) of section 11-1792 49 of this subchapter, ten business days if the amount for which such 50 notice and demand is made equals or exceeds one hundred thousand 51 dollars, and in such case interest shall be imposed only for the period 52 from such date of the notice and demand to the date of payment. 53 (h) Payment within specified period after notice and demand. If notice 54 and demand is made for payment of any amount under subdivision (b) of 55 section 11-1792 of this subchapter, and if such amount is paid within 56 twenty-one calendar days, ten business days if the amount for which suchS. 8474 951 1 notice and demand is made equals or exceeds one hundred thousand 2 dollars, after the date of such notice and demand, interest under this 3 section on the amount so paid shall not be imposed for the period after 4 the date of such notice and demand. 5 (i) Limitation on assessment and collection. Interest prescribed under 6 this section may be assessed and collected, at any time during the peri- 7 od within which the tax or other amount to which such interest relates 8 may be assessed and collected, respectively. 9 (j) Interest on erroneous refund. Any portion of tax or other amount 10 which has been erroneously refunded, and which is recoverable by the 11 commissioner of taxation and finance, shall bear interest at the under- 12 payment rate set by such commissioner pursuant to section 11-1797 of 13 this subchapter, or if no rate is set, at the rate of seven and one-half 14 percent per annum from the date of the payment of the refund, but only 15 if it appears that any part of the refund was induced by fraud or a 16 misrepresentation of a material fact. 17 (k) Satisfaction by credits. If any portion of a tax is satisfied by 18 credit of an overpayment, then no interest shall be imposed under this 19 section on the portion of the tax so satisfied for any period during 20 which, if the credit had not been made, interest would have been allow- 21 able with respect to such overpayment. 22 § 11-1785 Additions to tax and civil penalties. (a) (1) Failure to 23 file tax return. (A) In case of failure to file a tax return under this 24 chapter on or before the prescribed date, determined with regard to any 25 extension of time for filing, unless it is shown that such failure is 26 due to reasonable cause and not due to willful neglect, there shall be 27 added to the amount required to be shown as tax on such return five 28 percent of the amount of such tax if the failure is for not more than 29 one month, with an additional five percent for each additional month or 30 fraction thereof during which such failure continues, not exceeding 31 twenty-five percent in the aggregate. 32 (B) In the case of a failure to file a return of tax within sixty days 33 of the date prescribed for filing of such return, determined with regard 34 to any extension of time for filing, unless it is shown that such fail- 35 ure is due to reasonable cause and not due to willful neglect, the addi- 36 tion to tax hereunder shall not be less than the lesser of one hundred 37 dollars or one hundred percent of the amount required to be shown as tax 38 on such return. 39 (C) For purposes of this paragraph, the amount of tax required to be 40 shown on the return shall be reduced by the amount of any part of the 41 tax which is paid on or before the date prescribed for payment of the 42 tax and by the amount of any credit against the tax which may be claimed 43 upon the return. 44 (2) Failure to pay tax shown on return. In case of failure to pay the 45 amounts shown as tax on any return required to be filed under this chap- 46 ter on or before the prescribed date, determined with regard to any 47 extension of time for payment, unless it is shown that such failure is 48 due to reasonable cause and not due to willful neglect, there shall be 49 added to the amount shown as tax on such return one-half of one percent 50 of the amount of such tax if the failure is not for more than one month, 51 with an additional one-half of one percent for each additional month or 52 fraction thereof during which such failure continues, not exceeding 53 twenty-five percent in the aggregate. For the purpose of computing the 54 addition for any month, the amount of tax shown on the return shall be 55 reduced by the amount of any part of the tax which is paid on or before 56 the beginning of such month and by the amount of any credit against theS. 8474 952 1 tax which may be claimed upon the return. If the amount of tax required 2 to be shown on a return is less than the amount shown as tax on such 3 return, this paragraph shall be applied by substituting such lower 4 amount. 5 (3) Failure to pay tax required to be shown on return. In case of 6 failure to pay any amount in respect of any tax required to be shown on 7 a return required to be filed under this chapter which is not so shown, 8 including an assessment made pursuant to subdivision (a) of section 9 11-1782 of this subchapter, within twenty-one calendar days of the date 10 of a notice and demand therefor, ten business days if the amount for 11 which such notice and demand is made equals or exceeds one hundred thou- 12 sand dollars, unless it is shown that such failure is due to reasonable 13 cause and not due to willful neglect, there shall be added to the amount 14 of tax stated in such notice and demand one-half of one percent of such 15 tax if the failure is not for more than one month, with an additional 16 one-half of one percent for each additional month or fraction thereof 17 during which such failure continues, not exceeding twenty-five percent 18 in the aggregate. For the purpose of computing the addition for any 19 month, the amount of tax stated in the notice and demand shall be 20 reduced by the amount of any part of the tax which is paid before the 21 beginning of such month. 22 (4) Limitations on additions. (A) With respect to any return, the 23 amount of the addition under paragraph one of this subdivision shall be 24 reduced by the amount of the addition under paragraph two of this subdi- 25 vision for any month to which an addition applies under both paragraphs 26 one and two of this subdivision. In any case described in subparagraph 27 (B) of such paragraph one of this subdivision, the amount of the addi- 28 tion under such paragraph one shall not be reduced below the amount 29 provided in such subparagraph. 30 (B) With respect to any return, the maximum amount of the addition 31 permitted under paragraph three of this subdivision shall be reduced by 32 the amount of the addition under paragraph one of this subdivision, 33 determined without regard to subparagraph (B) of such paragraph, which 34 is attributable to the tax for which the notice and demand is made and 35 which is not paid within ten days of such notice and demand. 36 (b) Deficiency due to negligence. (1) If any part of a deficiency is 37 due to negligence or intentional disregard of this chapter or rules or 38 regulations established pursuant to such chapter, but without intent to 39 defraud, there shall be added to the tax an amount equal to five percent 40 of the deficiency. 41 (2) There shall be added to the tax, in addition to the amount deter- 42 mined under paragraph one of this subdivision, an amount equal to fifty 43 percent of the interest payable under section 11-1784 of this subchapter 44 with respect to the portion of the underpayment described in such para- 45 graph one which is attributable to the negligence or intentional disre- 46 gard referred to in such paragraph, for the period beginning on the last 47 date prescribed by law for payment of such underpayment, determined 48 without regard to any extension, and ending on the date of the assess- 49 ment of the tax, or, if earlier, the date of the payment of the tax. 50 (3) If any payment is shown on a return made by a payor with respect 51 to dividends, patronage dividends and interest under subsection (a) of 52 section six thousand forty-two, subsection (a) of section six thousand 53 forty-four or subsection (a) of section six thousand forty-nine of the 54 internal revenue code, respectively, and the payee fails to include any 55 portion of such payment in city adjusted gross income, any portion of an 56 underpayment attributable to such failure shall be treated, for purposesS. 8474 953 1 of this subdivision, as due to negligence in the absence of clear and 2 convincing evidence to the contrary. If any penalty is imposed under 3 this subdivision by reason of this paragraph, the amount of the penalty 4 imposed by paragraph one of this subdivision shall be five percent of 5 the portion of the underpayment which is attributable to the failure 6 described in this paragraph. 7 (c) Failure by individual to pay estimated income tax. (1) Addition 8 to the tax. Except as otherwise provided in this subdivision and subdi- 9 vision (d) of this section, in the case of any underpayment of estimated 10 tax by an individual, there shall be added to the tax under this chapter 11 for the taxable year an amount determined by applying the underpayment 12 rate established under section 11-1797 of this subchapter, or if no rate 13 is set, at the rate of seven and one-half percent per annum, to the 14 amount of the underpayment for the period of the underpayment. Such 15 period shall run from the due date for the required installment to the 16 earlier of the fifteenth day of the fourth month following the close of 17 the taxable year or, with respect to any portion of the underpayment, 18 the date on which such portion is paid. For purposes of determining such 19 date, a payment of estimated tax shall be credited against unpaid 20 required installments in the order in which such installments are 21 required to be paid. There shall be four required installments for each 22 taxable year, due on April fifteenth, June fifteenth and September 23 fifteenth of such taxable year and on January fifteenth of the following 24 taxable year. 25 (2) Amount of underpayment. For purposes of paragraph one of this 26 subdivision, the amount of the underpayment shall be the excess of the 27 required installment over the amount, if any, of the installment paid on 28 or before the due date for the installment. 29 (3) Required installment. (A) Except as provided in paragraph four of 30 this subdivision, the amount of any required installment shall be twen- 31 ty-five percent of the required annual payment. 32 (B) The required annual payment is the lesser of 33 (i) ninety percent of the tax shown on the return for the taxable 34 year, or, if no return is filed, ninety percent of the tax for such 35 year, or 36 (ii) one hundred percent of the tax shown on the return of the indi- 37 vidual for the preceding taxable year. Provided, however, that the tax 38 shown on such return for taxable years beginning in two thousand eight 39 shall be calculated as if paragraph three of subdivision (f) of section 40 11-1715 of this chapter was in effect for taxable years beginning in two 41 thousand eight. Provided, however, that the tax shown on such return for 42 taxable years beginning in two thousand nine shall be calculated as if 43 paragraph two of subdivision (g) of section 11-1715 of this chapter was 44 in effect for taxable years beginning in two thousand nine. 45 Clause (ii) of this subparagraph shall not apply if the preceding 46 taxable year was not a taxable year of twelve months or if the individ- 47 ual did not file a return for such preceding taxable year. 48 (C) Limitation on use of preceding year's tax. 49 (i) General. If the city adjusted gross income shown on the return of 50 the individual for the preceding taxable year exceeds one hundred fifty 51 thousand dollars, clause (ii) of subparagraph (B) of this paragraph 52 shall be applied by substituting "one hundred ten percent" for "one 53 hundred percent". 54 (ii) Separate returns. In the case of a husband and wife who file 55 separate returns pursuant to subdivision (b) of section 11-1751 of this 56 chapter for the taxable year for which the amount of the installment isS. 8474 954 1 being determined, clause (i) of this subparagraph shall be applied by 2 substituting "seventy-five thousand dollars" for "one hundred fifty 3 thousand dollars". 4 (4) Annualized income installment. (A) In general. In the case of 5 any required installment, if the individual establishes that the annual- 6 ized income installment determined under subparagraph (B) of this para- 7 graph is less than the amount determined under paragraph three of this 8 subdivision, the annualized income installment shall be the required 9 installment. Any reduction in a required installment resulting from the 10 application of this subparagraph shall be recaptured by increasing the 11 amount of the next required installment determined under paragraph three 12 of this subdivision by the amount of such reduction, and by increasing 13 successive required installments as necessary to effect full recapture. 14 (B) Determination of annualized income installment. In the case of 15 any required installment, the annualized income installment is the 16 excess, if any, of an amount equal to the applicable percentage of the 17 tax for the taxable year computed by placing on an annualized basis the 18 taxable income for months in the taxable year ending before the due date 19 for the installment, over the aggregate amount of any prior required 20 installments for the taxable year. The applicable percentage of the tax 21 shall be twenty-two and one-half percent in the case of the first 22 installment, forty-five percent in the case of the second installment, 23 sixty-seven and one-half percent in the case of the third installment 24 and ninety percent in the case of the fourth installment, and shall be 25 computed without regard to any increase in the rates applicable to the 26 taxable year unless such increase was enacted at least thirty days prior 27 to the due date of the installment. 28 (5) Definitions and special rules. (A) Definition of the term tax 29 and application of credits against tax. For purposes of this subdivi- 30 sion and subdivision (d) of this section, the term "tax" means the tax 31 imposed under this chapter minus the credits against tax allowed under 32 this chapter, other than the credit under section 11-1773 of this chap- 33 ter, relating to tax withheld on wages. The credit allowed under 34 section 11-1773 of this chapter for the taxable year shall be deemed a 35 payment of estimated tax, and an equal part of such amount shall be 36 deemed paid on each installment due date for such taxable year, unless 37 the taxpayer establishes the dates on which all amounts were actually 38 withheld, in which case the amounts so withheld shall be deemed payments 39 of estimated tax on the dates on which such amounts were actually with- 40 held. 41 (B) Special rule where return filed on or before January thirty-first. 42 If, on or before January thirty-first of the following taxable year, 43 the taxpayer files a return for the taxable year and pays in full the 44 amount computed on the return as payable, then no addition to tax shall 45 be imposed under paragraph one of this subdivision with respect to any 46 underpayment of the fourth required installment for the taxable year. 47 (C) Special rules for farmers and fishermen. For purposes of this 48 subdivision, if an individual is a farmer or fisherman for any taxable 49 year there shall be only one required installment for the taxable year, 50 due on January fifteenth of the following taxable year in an amount 51 equal to the required annual payment determined under paragraph three of 52 this subdivision by substituting sixty-six and two-thirds percent for 53 ninety percent and without regard to subparagraph (C) of paragraph three 54 of this subdivision. Subparagraph (B) of this paragraph shall be applied 55 by substituting March first for January thirty-first and by treating the 56 required installment under this subparagraph as the fourth requiredS. 8474 955 1 installment. An individual is a farmer or fisherman for any taxable year 2 if the individual's federal gross income from farming or fishing, 3 including oyster farming, for the taxable year is at least two-thirds of 4 the total federal gross income from all sources for the taxable year or 5 if such individual's federal gross income from farming or fishing, 6 including oyster farming, shown on the return of the individual for the 7 preceding taxable year is at least two-thirds of the total federal gross 8 income from all sources shown on such return. 9 (D) Fiscal years. In applying this subdivision to a taxable year 10 beginning on any date other than January first, there shall be substi- 11 tuted, for the months specified in this subdivision, the months which 12 correspond thereto. 13 (E) Short taxable year. This subdivision shall be applied to taxable 14 years of less than twelve months in accordance with regulations 15 prescribed by the tax commission. 16 (F) Joint estimated tax of husband and wife. A husband and wife may 17 make the required annual payment determined under paragraph three of 18 this subdivision as if they were one taxpayer, in which case the liabil- 19 ity under paragraph one of this subdivision with respect to the esti- 20 mated tax shall be joint and several. No such joint payment may be made 21 if husband and wife are separated under a decree of divorce or separate 22 maintenance, or if they have different taxable years. If a joint 23 payment is made but husband and wife determine their taxes under this 24 chapter separately, the estimated tax for such year may be treated as 25 the estimated tax of either husband or wife, or may be divided between 26 them, as they may elect. 27 (6) Trusts and certain estates. (A) General. This subdivision shall 28 apply to any trust or estate except as provided in subparagraphs (B) and 29 (C) of this paragraph. 30 (B) Exception for estates and certain trusts. This subdivision shall 31 not apply with respect to any taxable year ending before the date two 32 years after the date of the decedent's death to (i) the estate of such 33 decedent or (ii) any trust all of which was treated, under subpart E of 34 part I of subchapter J of chapter one of the internal revenue code, as 35 owned by the decedent and to which the residue of the decedent's estate 36 will pass under his will, or, if no will is admitted to probate, which 37 is the trust primarily responsible for paying debts, taxes and expenses 38 of administration. 39 (C) Special rule for annualizations. In the case of any estate or 40 trust, subparagraph (B) of paragraph four of this subdivision shall be 41 applied by substituting "ending before the date one month before the due 42 date for the installment" for "ending before the due date for the 43 installment". 44 (D) In the case of a trust, the trustee may elect to treat any portion 45 of a payment of estimated tax made by such trust for any taxable year of 46 the trust as a payment made by a beneficiary of such trust. Any amount 47 so treated shall be treated as paid or credited to the beneficiary on 48 the last day of such taxable year, and for purposes of this subdivision, 49 the amount so treated shall not be treated as a payment of estimated tax 50 made by the trust, but shall be treated as a payment of estimated tax 51 made by such beneficiary on the January fifteenth following the end of 52 the trust's taxable year. 53 (E) An election under subparagraph (D) of this paragraph shall be made 54 on or before the sixty-fifth day after the close of the taxable year and 55 in such manner as the commissioner of taxation and finance may 56 prescribe.S. 8474 956 1 (F) Extension to last year of estate. In the case of a taxable year 2 reasonably expected to be the last taxable year of an estate, any refer- 3 ence in subparagraph (D) of this paragraph to a trust shall be treated 4 as including a reference to an estate, and the fiduciary of the estate 5 shall be treated as the trustee. 6 (d) Exceptions to addition to tax for failure to pay estimated income 7 tax. 8 (1) Where tax is small amount. No addition to tax shall be imposed 9 under subdivision (c) of this section for any taxable year if the tax 10 shown on the return for such taxable year, or, if no return is filed, 11 the tax, reduced by the credit allowable under section 11-1773 of this 12 chapter, is less than one hundred dollars. 13 (2) Where no tax liability for preceding taxable year. No addition to 14 tax shall be imposed under subdivision (c) of this section for any taxa- 15 ble year if the preceding taxable year was a taxable year of twelve 16 months, the individual did not have any liability for tax under this 17 chapter for the preceding taxable year and throughout the preceding 18 taxable year the individual was a resident of this city or a nonresident 19 who had city adjusted gross income. 20 (3) Installment due on or after individual's death. No addition to 21 tax shall be imposed under subdivision (c) of this section with respect 22 to any installment due on or after the individual's death. 23 (4) Waiver in certain cases. (A) In general. No addition to tax 24 shall be imposed under subdivision (c) of this section with respect to 25 any underpayment to the extent the tax commission determines that by 26 reason of casualty, disaster or other unusual circumstances the imposi- 27 tion of such addition to tax would be against equity and good 28 conscience. 29 (B) Newly retired or disabled individuals. No addition to tax shall 30 be imposed under subdivision (c) of this section with respect to any 31 underpayment if the tax commission determines that in the taxable year 32 for which estimated payments were required to be made or in the taxable 33 year preceding such taxable year the taxpayer retired after having 34 attained age sixty-two or became disabled, and that such underpayment 35 was due to reasonable cause and not to willful neglect. 36 (e) Deficiency due to fraud. (1) If any part of a deficiency is due 37 to fraud, there shall be added to the tax an amount equal to fifty 38 percent of the deficiency. 39 (2) There shall be added to the tax, in addition to the amount deter- 40 mined under paragraph one of this subdivision, an amount equal to fifty 41 percent of the interest payable under section 11-1784 of this subchapter 42 with respect to the portion of the underpayment described in such para- 43 graph one which is attributable to fraud, for the period beginning on 44 the last day prescribed by law for payment of such underpayment, deter- 45 mined without regard to any extension, and ending on the date of the 46 assessment of the tax, or, if earlier, the date of the payment of the 47 tax. 48 (3) The addition to tax under this subdivision shall be in lieu of any 49 other addition to tax imposed by subdivision (a) or (b) of this section. 50 (4) In the case of a joint return under section 11-1751 of this chap- 51 ter, this subdivision shall not apply with respect to the tax of a 52 spouse unless some part of the underpayment is due to the fraud of such 53 spouse. 54 (f) Non-willful failure to pay withholding tax. If any employer, 55 without intent to evade or defeat any tax imposed by this chapter or the 56 payment thereof, shall fail to make a return and pay a tax withheld byS. 8474 957 1 him or her at the time required by or under the provisions of section 2 11-1774 of this chapter, such employer shall be liable for such tax and 3 shall pay the same together with interest thereon and the addition to 4 tax provided in subdivision (a) of this section, and such interest and 5 addition to tax shall not be charged to or collected from the employee 6 by the employer. The tax commission shall have the same rights and 7 powers for the collection of such tax, interest and addition to tax 8 against such employer as are now prescribed by this chapter for the 9 collection of tax against an individual taxpayer. 10 (g) Willful failure to collect and pay over tax. Any person required 11 to collect, truthfully account for, and pay over the tax imposed by this 12 chapter who willfully fails to collect such tax or truthfully account 13 for and pay over such tax or willfully attempts in any manner to evade 14 or defeat the tax or the payment thereof, shall, in addition to other 15 penalties provided by law, be liable to a penalty equal to the total 16 amount of the tax evaded, or not collected, or not accounted for and 17 paid over. No addition to tax under subdivision (b) or (e) of this 18 section shall be imposed for any offense to which this subdivision 19 applies. The tax commission shall have the power, in its discretion, to 20 waive, reduce or compromise any penalty under this subdivision. 21 (h) Failure to file certain information returns. (1) Except as other- 22 wise provided in this paragraph, in case of each failure to file a 23 statement of a payment to another person, required under authority of 24 subdivision (d) of section 11-1758 of this chapter, relating to informa- 25 tion at source, including the duplicate statement of tax withheld on 26 wages, on the date prescribed therefor, determined with regard to any 27 extension of time for filing, unless it is shown that such failure is 28 due to reasonable cause and not to willful neglect, there shall, upon 29 notice and demand by the tax commission and in the same manner as tax, 30 be paid by the person so failing to file the statement, a penalty of 31 fifty dollars for each statement not so filed, but the total amount 32 imposed on the delinquent person for all such failures during any calen- 33 dar year shall not exceed ten thousand dollars. 34 (2) If any partnership or S corporation required to file a return or 35 report under subdivision (c) of section 11-1758 of this chapter or under 36 section 11-1759 of this chapter for any taxable year fails to file such 37 return or report at the time prescribed therefor, determined with regard 38 to any extension of time for filing, or files a return or report which 39 fails to show the information required under such subdivision (c) or 40 section 11-1759 of this chapter, unless it is shown that such failure is 41 due to reasonable cause and not due to willful neglect, there shall, 42 upon notice and demand by the commissioner and in the same manner as 43 tax, be paid by the partnership or S corporation a penalty for each 44 month, or fraction thereof, during which such failure continues, but not 45 to exceed five months. The amount of such penalty for any month is the 46 product of fifty dollars, multiplied by the number of partners in the 47 partnership or shareholders in the S corporation during any part of the 48 taxable year who were subject to tax under this chapter during any part 49 of such taxable year. 50 (i) Additional penalty. Any person who with fraudulent intent shall 51 fail to pay, or to deduct or withhold and pay, any tax, or to make, 52 render, sign or certify any return, or to supply any information within 53 the time required by or under this chapter, shall be liable to penalty 54 of not more than one thousand dollars, in addition to any other amounts 55 required under this chapter, to be imposed, assessed and collected by 56 the tax commission. The tax commission shall have the power, in itsS. 8474 958 1 discretion, to waive, reduce or compromise any penalty under this subdi- 2 vision. 3 (j) Fraudulent statement or failure to furnish statement to employee. 4 In addition to any criminal penalties provided by law, any person 5 required under the provisions of section 11-1772 of this chapter to 6 furnish a statement to an employee, who willfully furnishes a false or 7 fraudulent statement, or who willfully fails to furnish a statement in 8 the manner, at the time, and showing the information required under 9 section 11-1772 of this chapter, or regulations prescribed thereunder, 10 shall for each such failure be subject to a penalty under this chapter 11 of fifty dollars. 12 (k) Failure to supply identifying numbers. If any person who is 13 required by regulations prescribed under subdivision (b) of section 14 11-1758 of this chapter: 15 (1) to include his or her identifying number in any return, state- 16 ment, or other document; 17 (2) to furnish his or her identifying number to another person; or 18 (3) to include in any return, statement or other document made with 19 respect to another person the identifying number of such other person, 20 fails to comply with such requirement at the time prescribed by such 21 regulations, such person shall, unless it is shown that such failure is 22 due to reasonable cause and not due to willful neglect, pay a penalty of 23 five dollars for each such failure described in paragraph one of this 24 subdivision and fifty dollars for each such failure described in para- 25 graph two of this subdivision, and this paragraph, except that the total 26 amount imposed on such person for all such failures during any calendar 27 year shall not exceed ten thousand dollars; except that for failure to 28 include his or her own identification number in any return, statement or 29 other document, such penalty shall not be imposed unless such person 30 shall have failed to supply his or her identification number to the tax 31 commission within thirty days after demand therefor. 32 (1) Additions treated as tax. The additions to tax and penalties 33 provided by this section shall be paid upon notice and demand and shall 34 be assessed, collected and paid in the same manner as taxes, and any 35 reference in this chapter to income tax or tax imposed by this chapter, 36 shall be deemed also to refer to the additions to tax and penalties 37 provided by this section. For purposes of section 11-1781 of this 38 subchapter, this subdivision shall not apply to: 39 (1) any addition to tax under subdivision (a) of this section except 40 as to that portion attributable to a deficiency; 41 (2) any addition to tax under subdivision (c) of this section; 42 (3) any penalty under subdivision (h) of this section and any addi- 43 tional penalty under subdivision (i) of this section; and 44 (4) any penalties under subdivisions (j), (k), (q), (r), (s) and (t) 45 of this section. 46 (m) Determination of deficiency. For purposes of subdivisions (b) and 47 (e) of this section, the amount shown as the tax by the taxpayer upon 48 his or her return shall be taken into account in determining the amount 49 of the deficiency only if such return was filed on or before the last 50 day prescribed for the filing of such return, determined with regard to 51 any extension of time for such filing. 52 (n) Person defined. For purposes of subdivisions (g), (i), (o), (q) 53 and (r) of this section, the term person includes an individual, corpo- 54 ration, partnership or limited liability company or an officer or 55 employee of any corporation, including a dissolved corporation, or a 56 member or employee of any partnership, or a member, manager or employeeS. 8474 959 1 of a limited liability company, who as such officer, employee, manager 2 or member is under a duty to perform the act in respect of which the 3 violation occurs. 4 (o) Failure to make deposits of taxes. In case of failure by any 5 person required by this chapter, or by regulations of the tax commission 6 under this chapter, to deposit on the date prescribed therefor any 7 amount of tax imposed by this chapter in a depository authorized pursu- 8 ant to subdivision (a) of section 11-1792 of this subchapter to receive 9 such deposits, unless it is shown that such failure is due to reasonable 10 cause and not due to willful neglect, there shall be imposed on such 11 person a penalty of five percent of the amount of the underpayment. For 12 purposes of this subdivision the term "underpayment" means the excess of 13 the amount of the tax required to be so deposited over the amount, if 14 any, thereof, deposited on or before the date prescribed therefor. 15 (p) Substantial understatement of liability. If there is a substantial 16 understatement of income tax for any taxable year, there shall be added 17 to the tax an amount equal to ten percent of the amount of any underpay- 18 ment attributable to such understatement. For purposes of this subdivi- 19 sion, there is a substantial understatement of income tax for any taxa- 20 ble year if the amount of the understatement for the taxable year 21 exceeds the greater of ten percent of the tax required to be shown on 22 the return for the taxable year, or two thousand dollars. For purposes 23 of this subdivision, the term "understatement" means the excess of the 24 amount of the tax required to be shown on the return for the taxable 25 year, over the amount of the tax imposed which is shown on the return 26 reduced by any rebate, within the meaning of subdivision (g) of section 27 11-1781 of this subchapter. The amount of such understatement shall be 28 reduced by that portion of the understatement which is attributable to 29 the tax treatment of any item by the taxpayer if there is or was 30 substantial authority for such treatment, or any item with respect to 31 which the relevant facts affecting the item's tax treatment are 32 adequately disclosed in the return or in a statement attached to the 33 return. The tax commission may waive all or any part of the addition to 34 tax provided by this subdivision on a showing by the taxpayer that there 35 was reasonable cause for the understatement, or part thereof, and that 36 the taxpayer acted in good faith. 37 (q) Frivolous tax returns. If any individual files what purports to 38 be a return of any tax imposed by this chapter but which does not 39 contain information on which the substantial correctness of the self-as- 40 sessment may be judged, or contains information that on its face indi- 41 cates that the self-assessment is substantially incorrect; and such 42 conduct is due to a position which is frivolous, or an intent, which 43 appears on the purported return, to delay or impede the administration 44 of this chapter, then such individual shall pay a penalty not exceeding 45 five hundred dollars. This penalty shall be in addition to any other 46 penalty provided by law. 47 (r) Aiding or assisting in the giving of fraudulent returns, reports, 48 statements or other documents. (1) Any person who, with the intent that 49 tax be evaded, shall, for a fee or other compensation or as an incident 50 to the performance of other services for which such person receives 51 compensation, aid or assist in, or procure, counsel, or advise the prep- 52 aration or presentation under, or in connection with any matter arising 53 under this chapter of any return, report, declaration, statement or 54 other document which is fraudulent or false as to any material matter, 55 or supply any false or fraudulent information, whether or not such 56 falsity of fraud is with the knowledge or consent of the person author-S. 8474 960 1 ized or required to present such return, report, declaration, statement 2 or other document shall pay a penalty not exceeding one thousand 3 dollars. 4 (2) For purposes of paragraph one of this subdivision, the term 5 "procures" includes ordering, or otherwise causing, a subordinate to do 6 an act, and knowing of, and not attempting to prevent, participation by 7 a subordinate in an act. The term "subordinate" means any other person, 8 whether or not a director, officer, employee, or agent of the taxpayer 9 involved, over whose activities the person has direction, supervision or 10 control. 11 (3) For purposes of paragraph one of this subdivision, a person 12 furnishing typing, reproducing, or other mechanical assistance with 13 respect to a document shall not be treated as having aided or assisted 14 in the preparation of such document by reason of such assistance. 15 (4) The penalty imposed by this subdivision shall be in addition to 16 any other penalty provided by law. 17 (s) False information with respect to withholding. In addition to any 18 criminal penalty provided by law, if any individual makes a statement 19 under section 11-1771 of this chapter which results in a decrease in the 20 amounts deducted and withheld under this chapter, and as of the time 21 such statement was made, there was no reasonable basis for such state- 22 ment, such individual shall pay a penalty of five hundred dollars for 23 such statement. The tax commission shall waive the penalty imposed 24 under this subdivision if the taxes imposed with respect to the individ- 25 ual under this chapter for the taxable year are equal to or less than 26 the sum of the credits against such taxes allowed by this chapter, and 27 the payments of estimated tax which are considered payments on account 28 of such taxes. 29 (t) Failure of tax return preparer to conform to certain requirements. 30 (1) Failure to sign return or claim for refund. Any individual who is a 31 tax return preparer with respect to any return or claim for refund, who 32 is required pursuant to paragraph one of subdivision (g) of section 33 11-1758 of this chapter to sign such return or claim for refund, and who 34 fails to comply with such requirement with respect to such return or 35 claim for refund, shall be subject to a penalty of fifty dollars for 36 each such failure, unless it is shown that such failure is due to 37 reasonable cause and not due to willful neglect. The maximum penalty 38 imposed under this paragraph on any person with respect to returns or 39 claims for refund filed during any calendar year shall not exceed twen- 40 ty-five thousand dollars. 41 (2) Failure to furnish identifying number. If any identifying number 42 required to be included on any return or claim for refund pursuant to 43 paragraph two of subdivision (g) of section 11-1758 of this chapter is 44 not so included, the person who is the tax return preparer with respect 45 to such return or claim for refund shall be subject to a penalty of 46 fifty dollars with respect to such return or claim for refund unless it 47 is shown that such failure is due to reasonable cause and not willful 48 neglect. For purposes of this paragraph, where an employer and one or 49 more employees of such employer are tax return preparers with respect to 50 the same return or claim for refund or where a partnership and one or 51 more partners in such partnership are tax return preparers with respect 52 to the same return or claim for refund, such employer or such partner- 53 ship shall be deemed to be the sole tax return preparer with respect to 54 such return or claim for refund. The maximum penalty imposed under this 55 paragraph on any person with respect to returns or claims for refundS. 8474 961 1 filed during any calendar year shall not exceed twenty-five thousand 2 dollars. 3 (3) Failure to furnish copy to taxpayer. Any person who is a tax 4 return preparer with respect to any return or claim for refund, who is 5 required under paragraph three of subdivision (g) of section 11-1758 of 6 this chapter to furnish a copy of such return or claim for refund to the 7 taxpayer, and who fails to comply with such provision with respect to 8 such return or claim for refund shall be subject to a penalty of fifty 9 dollars for each such failure, unless it is shown that such failure is 10 due to reasonable cause and not due to willful neglect. The maximum 11 penalty imposed under this paragraph on any person with respect to 12 returns or claims for refund filed during any calendar year shall not 13 exceed twenty-five thousand dollars. 14 (4) Failure to retain copy or list. Any person who is a tax return 15 preparer with respect to any return or claim for refund, who is required 16 under paragraph four of subdivision (g) of section 11-1758 of this chap- 17 ter to: (i) retain a copy of such return or claim for refund or retain 18 on a list the name and taxpayer identifying number of the taxpayer for 19 whom such return or claim for refund was prepared and (ii) make such 20 copy or list available for inspection upon request by the commissioner 21 of taxation and finance, and who fails to comply with the retention 22 requirement or who complies with the retention requirement but fails to 23 comply with such request by the commissioner, shall be subject to a 24 penalty of fifty dollars for each such failure, unless it is shown that 25 such failure is due to reasonable cause and not due to willful neglect. 26 The maximum penalty imposed under this paragraph on any person with 27 respect to any calendar year shall not exceed twenty-five thousand 28 dollars. 29 (5) Failure to electronically file. If a tax return preparer is 30 required to file returns electronically pursuant to paragraph ten of 31 subdivision (g) of section 11-1758 of this chapter, and such preparer 32 fails to file one or more of such returns electronically, then such 33 preparer shall be subject to a penalty of fifty dollars for each such 34 failure to electronically file a return, unless it is shown that such 35 failure is due to reasonable cause and not due to willful neglect. For 36 purposes of this paragraph, reasonable cause shall include, but not be 37 limited to, a taxpayer's election not to electronically file his or her 38 return. 39 § 11-1786 Overpayment. (a) General. The state commissioner of taxa- 40 tion and finance, within the applicable period of limitations, may cred- 41 it an overpayment of income tax and interest on such overpayment against 42 any liability in respect of any tax imposed by this chapter or by chap- 43 ter nineteen of this title on the person who made the overpayment or any 44 other tax imposed on such person pursuant to the authority of the tax 45 law or any other law if such tax is administered by the state commis- 46 sioner of taxation and finance, against any liability in respect of any 47 tax imposed on such person by the tax law and, as provided in sections 48 one hundred seventy-one-c, one hundred seventy-one-d, one hundred seven- 49 ty-one-e, one hundred seventy-one-f and one hundred seventy-one-l of the 50 tax law, against past-due support, against a past-due legally enforcea- 51 ble debt, against a city of New York tax warrant judgment debt and 52 against the amount of a default in repayment of a guaranteed student, 53 state university or city university loan. The balance shall be refunded 54 by the state comptroller out of the proceeds of the tax retained by him 55 or her for such general purpose. Any refund under this section shall be 56 made only upon the filing of a return and upon a certificate of theS. 8474 962 1 state commissioner of taxation and finance approved by the state comp- 2 troller. The state comptroller, as a condition precedent to the approval 3 of such a certificate, may examine into the facts as disclosed by the 4 return of the person who made the overpayment and other information and 5 data available in the files of the state commissioner of taxation and 6 finance. 7 (b) Excessive withholding. If the amount allowable as a credit for 8 tax withheld from the taxpayer exceeds his or her tax to which the cred- 9 it relates, the excess shall be considered an overpayment. 10 (c) Overpayment by employer. If there has been an overpayment of tax 11 required to be deducted and withheld under section 11-1771 of this chap- 12 ter, refund shall be made to the employer only to the extent that the 13 amount of the overpayment was not deducted and withheld by the employer. 14 (d) Overpayment by a deceased person. Notwithstanding section thir- 15 teen hundred ten of the surrogate's court procedure act, any overpayment 16 by a decedent not in excess of one thousand dollars may be refunded to 17 the decedent's surviving spouse unless the return for the decedent was 18 filed by his or her executor or administrator. 19 (e) Credits against estimated tax. The commissioner of taxation and 20 finance may prescribe regulations providing for the crediting against 21 the estimated income tax for any taxable year of the amount determined 22 to be an overpayment of the income tax for a preceding taxable year. If 23 any overpayment of income tax is so claimed as a credit against esti- 24 mated tax for the succeeding taxable year, such amount shall be consid- 25 ered as a payment of the income tax for the succeeding taxable year, and 26 no claim for credit or refund of such overpayment shall be allowed for 27 the taxable year for which the overpayment arises, except upon request 28 to the commissioner of taxation and finance on or before the last day 29 prescribed for the filing of the return for the succeeding taxable year, 30 determined with regard to any extension of time granted. If good cause 31 is shown for reversing the credit, the commissioner of taxation and 32 finance may, in his or her discretion, credit the overpayment against a 33 liability or refund the overpayment without interest. Provided, the 34 person who made the overpayment will not be relieved of liability for 35 any penalty imposed for a consequent underpayment of estimated tax for 36 the succeeding taxable year. The decision of the commissioner of taxa- 37 tion and finance to grant or deny the request is final and not subject 38 to further administrative or judicial review. 39 (f) Rule where no tax liability. If there is no tax liability for a 40 period in respect of which an amount is paid as income tax, such amount 41 shall be considered an overpayment. 42 (g) Assessment and collection after limitation period. If any amount 43 of income tax is assessed or collected after the expiration of the peri- 44 od of limitations properly applicable thereto, such amount shall be 45 considered an overpayment. 46 (h) Cross reference. For provision barring application of article 47 fifty-two of the civil practice law and rules to any amount to be 48 refunded or credited to a taxpayer, see section seven of the tax law. 49 § 11-1787 Limitations on credit or refund. (a) General. Claim for 50 credit or refund of an overpayment of income tax shall be filed by the 51 taxpayer within three years from the time the return was filed or two 52 years from the time the tax was paid, whichever of such periods expires 53 the later, or if no return was filed, within two years from the time the 54 tax was paid. If the claim is filed within the three year period, the 55 amount of the credit or refund shall not exceed the portion of the tax 56 paid within the three years immediately preceding the filing of theS. 8474 963 1 claim plus the period of any extension of time for filing the return. 2 If the claim is not filed within the three year period, but is filed 3 within the two year period, the amount of the credit or refund shall not 4 exceed the portion of the tax paid during the two years immediately 5 preceding the filing of the claim. Except as otherwise provided in this 6 section, if no claim is filed, the amount of a credit or refund shall 7 not exceed the amount which would be allowable if a claim had been filed 8 on the date the credit or refund is allowed. 9 (b) Extension of time by agreement. If an agreement under the 10 provisions of paragraph two of subdivision (c) of section 11-1783 of 11 this subchapter, extending the period for assessment of income tax, is 12 made within the period prescribed in subdivision (a) of this section 13 for the filing of a claim for credit or refund, the period for filing a 14 claim for credit or refund, or for making credit or refund if no claim 15 is filed, shall not expire prior to six months after the expiration of 16 the period within which an assessment may be made pursuant to the agree- 17 ment or any extension thereof. The amount of such credit or refund 18 shall not exceed the portion of the tax paid after the execution of the 19 agreement and before the filing of the claim or the making of the credit 20 or refund, as the case may be, plus the portion of the tax paid within 21 the period which would be applicable under subdivision (a) of this 22 section if a claim had been filed on the date the agreement was 23 executed. 24 (c) Notice of federal change or correction. A claim for credit or 25 refund of any overpayment of tax attributable to a federal change or 26 correction required to be reported pursuant to section 11-1759 of this 27 chapter shall be filed by the taxpayer within two years from the time 28 the notice of such change or correction or such amended return was 29 required to be filed with the commissioner of taxation and finance. If 30 the report or amended return required by section 11-1759 of this chapter 31 is not filed within the ninety day period therein specified, no interest 32 shall be payable on any claim for credit or refund of the overpayment 33 attributable to the federal change or correction. The amount of such 34 credit or refund shall not exceed the amount of the reduction in tax 35 attributable to such federal change, correction or items amended on the 36 taxpayer's amended federal income tax return. This subdivision shall 37 not affect the time within which or the amount for which a claim for 38 credit or refund may be filed apart from this subdivision. 39 (d) Overpayment attributable to net operating loss carryback. A claim 40 for credit or refund of so much of an overpayment as is attributable to 41 the application to the taxpayer of a net operating loss carryback shall 42 be filed within three years from the time the return was due, including 43 extensions thereof, for the taxable year of the loss, or within the 44 period prescribed in subdivision (b) of this section in respect of such 45 taxable year, or within the period prescribed in subdivision (c) of this 46 section, where applicable, in respect of the taxable year to which the 47 net operating loss is carried back, whichever expires the latest. 48 (e) Failure to file claim within prescribed period. No credit or 49 refund shall be allowed or made, except as provided in subdivision (f) 50 of this section or subdivision (d) of section 11-1790 of this subchap- 51 ter, after the expiration of the applicable period of limitation speci- 52 fied in this chapter, unless a claim for credit or refund is filed by 53 the taxpayer within such period. Any later credit shall be void and any 54 later refund erroneous. No period of limitations specified in any other 55 law shall apply to the recovery by a taxpayer of moneys paid in respect 56 of taxes under this chapter.S. 8474 964 1 (f) Effect of petition to tax commission. If a notice of deficiency 2 for a taxable year has been mailed to the taxpayer under section 11-1781 3 of this subchapter and if the taxpayer files a timely petition with the 4 tax commission under section 11-1789 of this subchapter, it may deter- 5 mine that the taxpayer has made an overpayment for such year, whether or 6 not it also determines a deficiency for such a year. No separate claim 7 for credit or refund for such year shall be filed, and no credit or 8 refund for such year shall be allowed or made, except: 9 (1) as to overpayments determined by a decision of the tax commission 10 which has become final; and 11 (2) as to any amount collected in excess of an amount computed in 12 accordance with the decision of the tax commission which has become 13 final; and 14 (3) as to any amount collected after the period of limitation upon the 15 making of levy for collection has expired; and 16 (4) as to any amount claimed as a result of a change or correction 17 described in subdivision (c) of this section. 18 (g) Limit on amount of credit or refund. The amount of overpayment 19 determined under subdivision (f) of this section shall, when the deci- 20 sion of the tax commission has become final, be credited or refunded in 21 accordance with subdivision (a) of section 11-1786 of this subchapter 22 and shall not exceed the amount of tax which the tax commission deter- 23 mines as part of its decision was paid: 24 (1) after the mailing of the notice of deficiency, or 25 (2) within the period which would be applicable under subdivision (a), 26 (b) or (c) of this section, if on the date of the mailing of the notice 27 of deficiency a claim had been filed, whether or not filed, stating the 28 grounds upon which the tax commission finds that there is an overpay- 29 ment. 30 (h) Early return. For purposes of this section, any return filed 31 before the last day prescribed for the filing thereof shall be consid- 32 ered as filed on such last day, determined without regard to any exten- 33 sion of time granted the taxpayer. 34 (i) Prepaid income tax. For purposes of this section, any tax paid by 35 the taxpayer before the last day prescribed for its payment, any income 36 tax withheld from the taxpayer during any calendar year, and any amount 37 paid by the taxpayer as estimated income tax for a taxable year shall be 38 deemed to have been paid by him or her on the fifteenth day of the 39 fourth month following the close of his or her taxable year with respect 40 to which such amount constitutes a credit or payment. 41 (j) Return and payment of withholding tax. Notwithstanding subdivi- 42 sion (h) of this section, for purposes of this section with respect to 43 any withholding tax: 44 (1) if a return for any period ending with or within a calendar year 45 is filed before April fifteenth of the succeeding calendar year, such 46 return shall be considered filed on April fifteenth of such succeeding 47 calendar year; and 48 (2) if a tax with respect to remuneration paid during any period 49 ending with or within a calendar year is paid before April fifteenth of 50 the succeeding calendar year, such tax shall be considered paid on April 51 fifteenth of such succeeding calendar year. 52 (k) Running of periods of limitation suspended while taxpayer is 53 unable to manage financial affairs due to disability. (1) In the case of 54 an individual taxpayer, the running of the periods specified in subdivi- 55 sions (a), (b), and (c) of this section shall be suspended during any 56 period of such individual's life that such individual is financiallyS. 8474 965 1 disabled. For purposes of this subdivision, an individual taxpayer is an 2 individual who is subject to the tax imposed under this chapter. 3 (2) For purposes of paragraph one of this subdivision, an individual 4 taxpayer is financially disabled if such individual is unable to manage 5 his or her financial affairs by reason of a medically determinable phys- 6 ical or mental impairment of that individual which can be expected to 7 result in death or which has lasted or can be expected to last for a 8 continuous period of not less than twelve months. An individual shall 9 not be considered to have such impairment unless proof of the existence 10 thereof is furnished in such form and manner as the commissioner of 11 taxation and finance may require. 12 (3) An individual taxpayer shall not be treated as financially disa- 13 bled during any period that such individual's spouse or any other person 14 is authorized to act on behalf of such individual in financial matters. 15 (l) Cross reference. For provision barring refund of overpayment 16 credited against tax of a succeeding year, see subdivision (e) of 17 section 11-1786 of this subchapter. 18 § 11-1788 Interest on overpayment. (a) General. Notwithstanding the 19 provisions of section sixteen of the state finance law, interest shall 20 be allowed and paid as follows at the overpayment rate set by the 21 commissioner of taxation and finance pursuant to section 11-1797 of this 22 subchapter, or if no rate is set, at the rate of six percent per annum 23 upon any overpayment in respect of the tax imposed by this chapter: 24 (1) from the date of the overpayment to the due date of an amount 25 against which a credit is taken; 26 (2) from the date of the overpayment to a date, to be determined by 27 the commissioner of taxation and finance, preceding the date of a refund 28 check by not more than thirty days, whether or not such refund check is 29 accepted by the taxpayer after tender of such check to the taxpayer. The 30 acceptance of such check shall be without prejudice to any right of the 31 taxpayer to claim any additional overpayment and interest thereon. 32 (3) Late and amended returns and claims for credit or refund. 33 Notwithstanding paragraph one or two of this subdivision, in the case of 34 an overpayment claimed on a return of tax which is filed after the last 35 date prescribed for filing such return, determined with regard to exten- 36 sions, or claimed on an amended return of tax or claimed on a claim for 37 credit or refund, no interest shall be allowed or paid for any day 38 before the date on which such return or claim is filed. 39 (4) Interest on certain refunds. To the extent provided for in regu- 40 lations promulgated by the commissioner of taxation and finance, if an 41 item of income, gain, loss, deduction or credit is changed from the 42 taxable year or period in which it is reported to the taxable year or 43 period in which it belongs and the change results in an underpayment in 44 a taxable year or period and an overpayment in some other taxable year 45 or period, the provisions of paragraph three of this subdivision with 46 respect to an overpayment shall not be applicable to the extent that the 47 limitation in such paragraph on the right to interest would result in a 48 taxpayer not being allowed interest for a length of time with respect to 49 an overpayment while being required to pay interest on an equivalent 50 amount of the related underpayment. However, this paragraph shall not be 51 construed as limiting or mitigating the effect of any statute of limita- 52 tions or any other provision of law relating to the authority of such 53 commissioner to issue a notice of deficiency or to allow a credit or 54 refund on an overpayment. 55 (5) Amounts of less than one dollar. No interest shall be allowed or 56 paid if the amount thereof is less than one dollar.S. 8474 966 1 (b) Advance payment of tax, payment of estimated tax, and credit for 2 income tax withholding. The provisions of subdivisions (h) and (i) of 3 section 11-1787 of this subchapter applicable in determining the date of 4 payment of tax for purposes of determining the period of limitations on 5 credit or refund, shall be applicable in determining the date of payment 6 for purposes of this section. 7 (c) Income tax refund within forty-five days of claim for overpayment. 8 If any overpayment of tax imposed by this chapter is credited or 9 refunded within forty-five days after the last date prescribed, or 10 permitted by extension of time, for filing the return of such tax on 11 which such overpayment was claimed or within forty-five days after such 12 return was filed, whichever is later, or within forty-five days after an 13 amended return was filed claiming such overpayment or within forty-five 14 days after a claim for credit or refund was filed on which such overpay- 15 ment was claimed, within six months after a demand is filed pursuant to 16 paragraph six of subsection (b) of section six hundred fifty-one of the 17 tax law, no interest shall be allowed under this section on any such 18 overpayment. For purposes of this subdivision, any amended return or 19 claim for credit or refund filed before the last day prescribed, or 20 permitted by extension of time, for the filing of the return of tax for 21 such year shall be considered as filed on such last day. 22 (d) Refund of income tax caused by carryback. For purposes of this 23 section, if any overpayment of tax imposed by this chapter results from 24 a carryback of a net operating loss, such overpayment shall be deemed 25 not to have been made prior to the filing date for the taxable year in 26 which such net operating loss arises. Such filing date shall be deter- 27 mined without regard to extensions of time to file. For purposes of 28 subdivision (c) of this section any overpayment described herein shall 29 be treated as an overpayment for the loss year and such subdivision 30 shall be applied with respect to such overpayment by treating the return 31 for the loss year as not filed before claim for such overpayment is 32 filed. The term "loss year" means the taxable year in which such loss 33 arises. 34 (e) No interest until return in processible form. 35 (1) For purposes of subdivisions (a) and (c) of this section, a return 36 shall not be treated as filed until it is filed in processible form. 37 (2) For purposes of paragraph one of this subdivision, a return is in 38 a processible form if: 39 (A) such return is filed on a permitted form, and 40 (B) such return contains: 41 (i) the taxpayer's name, address, and identifying number and the 42 required signatures, and 43 (ii) sufficient required information, whether on the return or on 44 required attachments, to permit the mathematical verification of tax 45 liability shown on the return. 46 (f) Overpayment credited against past-due support, or against a past- 47 due legally enforceable debt, or a city of New York tax warrant judgment 48 debt, or defaulted guaranteed student, state university or city univer- 49 sity loans. If interest is payable pursuant to this section on that 50 portion of an overpayment of tax imposed by this chapter which is certi- 51 fied by the state commissioner of taxation and finance to the state 52 comptroller as the amount to be credited against past-due support, or 53 against a past-due legally enforceable debt, or a city of New York tax 54 warrant judgment debt, or the amount of a default in repayment of a 55 guaranteed student, state university or city university loan, as the 56 case may be, pursuant to the provisions of sections one hundred seven-S. 8474 967 1 ty-one-c, one hundred seventy-one-d, one hundred seventy-one-e, one 2 hundred seventy-one-f and one hundred seventy-one-l of the tax law, such 3 portion of such an overpayment shall cease to bear interest on the date 4 of such certification. 5 (g) Cross-reference. For provision with respect to interest after 6 failure to file notice of federal change under section 11-1759 of this 7 chapter, see subdivision (c) of section 11-1787 of this subchapter. 8 § 11-1789 Petition to tax commission. (a) General. The form of a 9 petition to the tax commission, and further proceedings before the tax 10 commission in any case initiated by the filing of a petition, shall be 11 governed by such rules as the tax commission shall prescribe. No peti- 12 tion shall be denied in whole or in part without opportunity for a hear- 13 ing on reasonable prior notice. Such hearing shall be conducted by one 14 or more members of the tax commission, or by a hearing officer desig- 15 nated by the tax commission to take evidence and report to the tax 16 commission. The tax commissioners shall, acting as a body, jointly 17 decide the case as quickly as practicable. Notice of the decision shall 18 be mailed promptly to the taxpayer by certified or registered mail at 19 his or her last known address, and such notice shall set forth the tax 20 commission's findings of fact and a brief statement of the grounds of 21 decision in each case decided in whole or in part adversely to the 22 taxpayer. 23 (b) Petition for redetermination of a deficiency. Within ninety days, 24 or one hundred fifty days if the notice is addressed to a person outside 25 of the United States, after the mailing of the notice of deficiency 26 authorized by section 11-1781 of this subchapter, the taxpayer may file 27 a petition with the tax commission for a redetermination of the defi- 28 ciency. Such petition may also assert a claim for refund for the same 29 taxable year or years, subject to the limitations of subdivision (g) of 30 section 11-1787 of this subchapter. 31 (c) Petition for refund. A taxpayer may file a petition with the tax 32 commission for the amounts asserted in a claim for refund if: 33 (1) the taxpayer has filed a timely claim for refund with the tax 34 commission, 35 (2) the taxpayer has not previously filed with the tax commission a 36 timely petition under subdivision (b) of this section for the same 37 taxable year unless the petition under this subdivision relates to a 38 separate claim for credit or refund properly filed under subdivision (f) 39 of section 11-1787 of this subchapter, and 40 (3) either: (A) six months have expired since the claim was filed, or 41 (B) the tax commission has mailed to the taxpayer, by registered or 42 certified mail, a notice of disallowance of such claim in whole or in 43 part. 44 No petition under this subdivision shall be filed more than two years 45 after the date of mailing of a notice of disallowance, unless prior to 46 the expiration of such two year period it has been extended by written 47 agreement between the taxpayer and the tax commission. If a taxpayer 48 files a written waiver of the requirement that he or she be mailed a 49 notice of disallowance, the two year period prescribed by this subdivi- 50 sion for filing a petition for refund shall begin on the date such waiv- 51 er is filed. 52 (d) Assertion of deficiency after filing petition. 53 (1) Petition for redetermination of deficiency. If a taxpayer files 54 with the tax commission, a petition for redetermination of a deficiency, 55 the tax commission shall have power to determine a greater deficiency 56 than asserted in the notice of deficiency and to determine if thereS. 8474 968 1 should be assessed any addition to tax or penalty provided in section 2 11-1785 of this subchapter, if claim therefor is asserted at or before 3 the hearing under rules of the tax commission. 4 (2) Petition for refund. If the taxpayer files with the tax commis- 5 sion a petition for credit or refund for a taxable year, the tax commis- 6 sion may: 7 (A) determine a deficiency for such year as to any amount of defi- 8 ciency asserted at or before the hearing under rules of the tax commis- 9 sion, and within the period in which an assessment would be timely under 10 section 11-1783 of this subchapter, or 11 (B) deny so much of the amount for which credit or refund is sought 12 in the petition, as is offset by other issues pertaining to the same 13 taxable year which are asserted at or before the hearing under rules of 14 the tax commission. 15 (3) Opportunity to respond. A taxpayer shall be given a reasonable 16 opportunity to respond to any matters asserted by the tax commission 17 under this subdivision. 18 (4) Restriction on further notices of deficiency. If the taxpayer 19 files a petition with the tax commission under this section, no notice 20 of deficiency under section 11-1781 of this subchapter may thereafter be 21 issued by the tax commission for the same taxable year, except in case 22 of fraud or with respect to a change or correction required to be 23 reported under section 11-1759 of this chapter. 24 (e) Burden of proof. In any case before the tax commission under this 25 chapter, the burden of proof shall be upon the petitioner except for the 26 following issues, as to which the burden of proof shall be upon the tax 27 commission: 28 (1) whether the petitioner has been guilty of fraud with intent to 29 evade tax; 30 (2) whether the petitioner is liable as the transferee of property of 31 a taxpayer, but not to show that the taxpayer was liable for the tax; 32 (3) whether the petitioner is liable for any increase in a deficiency 33 where such increase is asserted initially after a notice of deficiency 34 was mailed and a petition under this section filed, unless such increase 35 in deficiency is the result of a change or correction required to be 36 reported under section 11-1759 of this chapter, and of which change or 37 correction the tax commission had no notice at the time it mailed the 38 notice of deficiency; and 39 (4) whether any person is liable for a penalty under subdivision (q) 40 or (r) of section 11-1785 of this subchapter. 41 (f) Evidence of related federal determination. Evidence of a federal 42 determination relating to issues raised in a case before the tax commis- 43 sion under this section shall be admissible, under rules established by 44 the tax commission. 45 (g) Jurisdiction over other years. The tax commission shall consider 46 such facts with relation to the taxes for other years as may be neces- 47 sary correctly to determine the tax for the taxable year, but in so 48 doing shall have no jurisdiction to determine whether or not the tax for 49 any other year has been overpaid or underpaid. 50 § 11-1790 Review of tax commission decision. (a) General. A decision 51 of the tax commission shall be subject to judicial review at the 52 instance of any taxpayer effected thereby in the manner provided by law 53 for the review of a final decision or action of administrative agencies 54 of the state. An application by a taxpayer for such review must be made 55 within four months after notice of the decision is sent by certified or 56 registered mail to the taxpayer.S. 8474 969 1 (b) Judicial review exclusive remedy of taxpayer. The review of a 2 decision of the tax commission provided by this section shall be the 3 exclusive remedy available to any taxpayer for the judicial determi- 4 nation of the liability of the taxpayer for the taxes imposed by this 5 chapter. 6 (c) Assessment pending review; review bond. Irrespective of any 7 restrictions on the assessment and collection of deficiencies, the tax 8 commission may assess a deficiency after the expiration of the period 9 specified in subdivision (a) of this section, notwithstanding that an 10 application for judicial review in respect of such deficiency has been 11 duly made by the taxpayer, unless the taxpayer, at or before the time 12 his or her application for review is made, has paid the deficiency, has 13 deposited with the tax commission the amount of the deficiency, or has 14 filed with the tax commission a bond, which may be a jeopardy bond under 15 subdivision (h) of section 11-1794 of this subchapter, in the amount of 16 the portion of the deficiency, including interest and other amounts, in 17 respect of which the application for review is made and all costs and 18 charges which may accrue against him or her in the prosecution of the 19 proceeding, including costs of all appeals, and with surety approved by 20 a justice of the supreme court of the state of New York, conditioned 21 upon the payment of the deficiency, including interest and other 22 amounts, as finally determined and such costs and charges. If as a 23 result of a waiver of the restrictions on the assessment and collection 24 of a deficiency any part of the amount determined by the tax commission 25 is paid after the filing of the review bond, such bond shall, at the 26 request of the taxpayer, be proportionately reduced. 27 (d) Credit, refund or abatement after review. If the amount of a 28 deficiency determined by the tax commission is disallowed in whole or in 29 part by the court of review, the amount so disallowed shall be credited 30 or refunded to the taxpayer, without the making of claim therefor, or, 31 if payment has not been made, shall be abated. 32 (e) Date of finality of tax commission decision. A decision of the 33 tax commission shall become final upon the expiration of the period 34 specified in subdivision (a) of this section for making an application 35 for review, if no such application has been duly made within such time, 36 or if such application has been duly made, upon expiration of the time 37 for all further judicial review, or upon the rendering by the tax 38 commission of a decision in accordance with the mandate of the court on 39 review, provided, however, for the purpose of making an application for 40 review, the decision of the tax commission shall be deemed final on the 41 date the notice of decision is sent by certified or registered mail to 42 the taxpayer. 43 § 11-1791 Mailing rules; holidays; miscellaneous. (a) Timely mail- 44 ing. (1) If any return, claim, statement, notice, petition, or other 45 document required to be filed, or any payment required to be made, with- 46 in a prescribed period or on or before a prescribed date under authority 47 of any provision of this chapter is, after such period or such date, 48 delivered by United States mail to the tax commission, bureau, office, 49 officer or person with which or with whom such document is required to 50 be filed, or to which or to whom such payment is required to be made, 51 the date of the United States postmark stamped on the envelope shall be 52 deemed to be the date of delivery. This subdivision shall apply only if 53 the postmark date falls within the prescribed period or on or before the 54 prescribed date for the filing of such document, or for making the 55 payment, including any extension granted for such filing or payment, and 56 only if such document or payment was deposited in the mail, postageS. 8474 970 1 prepaid, properly addressed to the tax commission, bureau, office, offi- 2 cer or person with which or with whom the document is required to be 3 filed or to which or to whom such payment is required to be made. If any 4 document or payment is sent by United States registered mail, such 5 registration shall be prima facie evidence that such document or payment 6 was delivered to the tax commission, bureau, office, officer or person 7 to which or to whom addressed. To the extent that the tax commission 8 shall prescribe by regulation, certified mail may be used in lieu of 9 registered mail under this section. This subdivision shall apply in the 10 case of postmarks not made by the United States post office only if and 11 to the extent provided by regulations of the tax commission. 12 (2)(A) Any reference in paragraph one of this subdivision to the 13 United States mail shall be treated as including a reference to any 14 delivery service designated by the secretary of the treasury of the 15 United States pursuant to section seventy-five hundred two of the Inter- 16 nal Revenue Code and any reference in paragraph one of this subdivision 17 to a postmark by the United States mail shall be treated as including a 18 reference to any date recorded or marked in the manner described in 19 section seventy-five hundred two of the Internal Revenue Code by a 20 designated delivery service. If the commissioner of taxation and finance 21 finds that any delivery service designated by such secretary is inade- 22 quate for the needs of the state, such commissioner may withdraw such 23 designation for purposes of this article. Such commissioner may also 24 designate additional delivery services meeting the criteria of section 25 seventy-five hundred two of the Internal Revenue Code for purposes of 26 this article, or may withdraw any such designation if such commissioner 27 finds that a delivery service so designated is inadequate for the needs 28 of the state. Any reference in paragraph one of this subdivision to the 29 United States mail shall be treated as including a reference to any 30 delivery service designated by such commissioner and any reference in 31 paragraph one of this subdivision to a postmark by the United States 32 mail shall be treated as including a reference to any date recorded or 33 marked in the manner described in section seventy-five hundred two of 34 the Internal Revenue Code by a delivery service designated by the 35 commissioner. 36 (B) Any equivalent of registered or certified mail designated by the 37 United States secretary of the treasury, or as may be designated by the 38 commissioner of taxation and finance pursuant to the same criteria used 39 by the secretary for such designation pursuant to section seventy-five 40 hundred two of the Internal Revenue Code, shall be included within the 41 meaning of registered or certified mail as used in paragraph one of this 42 subdivision. If such commissioner finds that any equivalent of regis- 43 tered or certified mail designated by such secretary or such commission- 44 er is inadequate for the needs of the state, such commissioner may with- 45 draw such designation for purposes of this article. 46 (b) Last known address. For purposes of this chapter, a taxpayer's 47 last known address shall be the address given in the last return filed 48 by such taxpayer, unless subsequent to the filing of such return the 49 taxpayer shall have notified the tax commission of a change of address. 50 (c) Last day a Saturday, Sunday or legal holiday. When the last day 51 prescribed under authority of this chapter, including any extension of 52 time, for performing any act falls on Saturday, Sunday, or a legal holi- 53 day in the state of New York, the performance of such act shall be 54 considered timely if it is performed on the next succeeding day which is 55 not a Saturday, Sunday or a legal holiday.S. 8474 971 1 (d) Certificate; unfiled return. For purposes of this chapter, the 2 certificate of the tax commission to the effect that a tax has not been 3 paid, that a return has not been filed, or that information has not been 4 supplied, as required by or under the provisions of this chapter, shall 5 be prima facie evidence that such tax has not been paid, that such 6 return has not been filed, or that such information has not been 7 supplied. 8 (e) Attorney general; jurisdiction. The attorney general shall have 9 concurrent jurisdiction with any district attorney in the prosecution of 10 any offenses arising under article thirty-seven of the tax law with 11 respect to the tax imposed under this chapter. 12 § 11-1792 Collection, levy and liens. (a) Collection procedures. The 13 taxes imposed by this chapter shall be collected by the tax commission, 14 and it may establish the mode or time for the collection of any amount 15 due it under this chapter if not otherwise specified. The tax commis- 16 sion shall, upon request, give a receipt for any sum collected under 17 this chapter. The tax commission may authorize banks or trust companies 18 which are depositaries or financial agents of the state to receive and 19 give a receipt for any tax imposed under this chapter in such manner, at 20 such times, and under such conditions as the tax commission may 21 prescribe; and the tax commission shall prescribe the manner, times and 22 conditions under which the receipt of such tax by such banks and trust 23 companies is to be treated as payment of such tax to the tax commission. 24 (b) Notice and demand for tax. The tax commission shall as soon as 25 practicable give notice to each person liable for any amount of tax, 26 addition to tax, penalty or interest, which has been assessed but 27 remains unpaid, stating the amount and demanding payment thereof. Such 28 notice shall be left at the dwelling or usual place of business of such 29 person or shall be sent by mail to such person's last known address. 30 Except where the tax commission determines that collection would be 31 jeopardized by delay, if any tax is assessed prior to the last date, 32 including any date fixed by extension, prescribed for payment of such 33 tax, payment of such tax shall not be demanded until after such date. 34 (c) Issuance of warrant after notice and demand. If any person liable 35 under this chapter for the payment of any tax, addition to tax, penalty 36 or interest neglects or refuses to pay the same within twenty-one calen- 37 dar days after notice and demand therefor is given to such person under 38 subdivision (b) of this section, ten business days if the amount for 39 which such notice and demand is made equals or exceeds one hundred thou- 40 sand dollars, the commissioner of taxation and finance may within six 41 years after the date of such assessment issue a warrant under such 42 commissioner's official seal directed to the sheriff of any county of 43 the state, or to any officer or employee of the department of taxation 44 and finance, commanding him or her to levy upon and sell such person's 45 real and personal property for the payment of the amount assessed, with 46 the cost of executing the warrant, and to return such warrant to such 47 commissioner and pay to him or her the money collected by virtue thereof 48 within sixty days after the receipt of the warrant. If such commissioner 49 finds that the collection of the tax or other amount is in jeopardy, 50 notice and demand for immediate payment of such tax may be made by such 51 commissioner and upon failure or refusal to pay such tax or other amount 52 such commissioner may issue a warrant without regard to the twenty-one 53 day period, or ten-day period if applicable, provided in this subdivi- 54 sion. 55 (d) Copy of warrant to be filed and lien to be created. Any sheriff 56 or officer or employee who receives a warrant under subdivision (c) ofS. 8474 972 1 this section shall within five days thereafter file a copy with the 2 clerk of the appropriate county. The clerk shall thereupon enter in the 3 judgment docket, in the column for judgment debtors, the name of the 4 taxpayer mentioned in the warrant, and in appropriate columns the tax or 5 other amounts for which the warrant is issued and the date when such 6 copy is filed; and such amount shall thereupon be a lien upon the title 7 to and interest in real, personal and other property of the taxpayer. 8 Such lien shall not apply to personal property unless such warrant is 9 filed in the department of state. 10 (e) Judgment. When a warrant has been filed with the county clerk 11 the tax commission shall, in the right of the city, be deemed to have 12 obtained judgment against the taxpayer for the tax or other amounts. 13 (f) Execution. The sheriff or officer or employee shall thereupon 14 proceed upon the warrant in all respects, with like effect, and in the 15 same manner prescribed by law in respect to executions issued against 16 property upon judgments of a court of record, and a sheriff shall be 17 entitled to the same fees for his or her services in executing the 18 warrant, to be collected in the same manner. An officer or employee of 19 the department of taxation and finance may proceed in any county or 20 counties of this state and shall have all the powers of execution 21 conferred by law upon sheriffs, but shall be entitled to no fee or 22 compensation in excess of actual expenses paid in connection with the 23 execution of the warrant. 24 (g) Taxpayer not a resident. Where a notice and demand under subdi- 25 vision (b) of this section shall have been given to a taxpayer who is 26 not then a resident, and it appears to the tax commission that it is not 27 practicable to find in this state property of the taxpayer sufficient to 28 pay the entire balance of tax or other amount owing by such taxpayer who 29 is not then a resident, the tax commission may, in accordance with 30 subdivision (c) of this section, issue a warrant directed to an officer 31 or employee of the department of taxation and finance, a copy of which 32 warrant shall be mailed by certified or registered mail to the taxpayer 33 at his or her last known address, subject to the rules for mailing 34 provided in subdivision (a) of section 11-1781 of this subchapter. Such 35 warrant shall command the officer or employee to proceed in Albany coun- 36 ty, and he or she shall, within five days after receipt of the warrant, 37 file the warrant and obtain a judgment in accordance with this section. 38 Thereupon the tax commission may authorize the institution of any action 39 or proceeding to collect or enforce the judgment in any place and by any 40 procedure that a civil judgment of the supreme court of the state of New 41 York could be collected or enforced. The tax commission may also, in 42 its discretion, designate agents or retain counsel for the purpose of 43 collecting, outside the state of New York, any unpaid taxes, additions 44 to tax, penalties or interest which have been assessed under this chap- 45 ter against taxpayers who are not residents of this state, may fix the 46 compensation of such agents and counsel to be paid out of money appro- 47 priated or otherwise lawfully available for payment thereof, and may 48 require of them bonds or other security for the faithful performance of 49 their duties, in such form and in such amount as the tax commission 50 shall deem proper and sufficient. 51 (h) Action by state for recovery of taxes. Action may be brought by 52 the attorney general at the instance of the tax commission in the name 53 of the city or both to recover the amount of any unpaid taxes, additions 54 to tax, penalties or interest which have been assessed under this chap- 55 ter within six years prior to the date the action is commenced.S. 8474 973 1 (i) Release of lien. The tax commission, if it finds that the inter- 2 ests of the city will not thereby be jeopardized, and upon such condi- 3 tions as it may require, may release any property from the lien of any 4 warrant for unpaid taxes, additions to tax, penalties and interest filed 5 pursuant to this section, and such release may be recorded in the office 6 of any recording officer in which such warrant has been filed. 7 § 11-1793 Transferees. (a) General. The liability, at law or in 8 equity, of a transferee of property of a taxpayer for any tax, additions 9 to tax, penalty or interest due under this chapter, shall be assessed, 10 paid, and collected in the same manner and subject to the same 11 provisions and limitations as in the case of the tax to which the 12 liability relates, except that the period of limitations for assessment 13 against the transferee shall be extended by one year for each successive 14 transfer, in order, from the original taxpayer to the transferee 15 involved, but not by more than three years in the aggregate. The term 16 transferee includes donee, heir, legatee, devisee and distributee. 17 (b) Exceptions. 18 (1) If before the expiration of the period of limitations for assess- 19 ment of liability of the transferee, a claim has been filed by the tax 20 commission in any court against the original taxpayer or the last 21 preceding transferee based upon the liability of the original taxpayer, 22 then the period of limitation for assessment of liability of the trans- 23 feree shall in no event expire prior to one year after such claim has 24 been finally allowed, disallowed or otherwise disposed of. 25 (2) If, before the expiration of the time prescribed in subdivision 26 (a) or the immediately preceding paragraph of this subdivision for the 27 assessment of the liability, the tax commission and the transferee have 28 both consented in writing to its assessment after such time, the liabil- 29 ity may be assessed at any time prior to the expiration of the period 30 agreed upon. The period so agreed upon may be extended by subsequent 31 agreements in writing made before the expiration of the period previous- 32 ly agreed upon. For the purpose of determining the period of limitation 33 on credit or refund to the transferee of overpayments of tax made by 34 such transferee or overpayments of tax made by the transferor as to 35 which the transferee is legally entitled to credit or refund, such 36 agreement and any extension thereof shall be deemed an agreement and 37 extension thereof referred to in subdivision (b) of section 11-1787 of 38 this subchapter. If the agreement is executed after the expiration of 39 the period of limitation for assessment against the original taxpayer, 40 then in applying the limitations under subdivision (b) of section 41 11-1787 of this subchapter on the amount of the credit or refund, the 42 periods specified in subdivision (a) of section 11-1787 of this subchap- 43 ter shall be increased by the period from the date of such expiration to 44 the date of the agreement. 45 (c) Deceased transferor. If any person is deceased, the period of 46 limitation for assessment against such person shall be the period that 47 would be in effect if he or she had lived. 48 (d) Evidence. Notwithstanding the provisions of subdivision (e) of 49 section 11-1797 of this subchapter the tax commission shall use its 50 powers to make available to the transferee evidence necessary to enable 51 the transferee to determine the liability of the original taxpayer and 52 of any preceding transferees, but without undue hardship to the original 53 taxpayer or preceding transferee. See subdivision (e) of section 54 11-1789 of this subchapter for rule as to burden of proof. 55 § 11-1794 Jeopardy assessment. (a) Authority for making. If the tax 56 commission believes that the assessment or collection of a deficiencyS. 8474 974 1 will be jeopardized by delay, it shall, notwithstanding the provisions 2 of sections 11-1781 and 11-1796 of this subchapter, immediately assess 3 such deficiency, together with all interest, penalties and additions to 4 tax provided for by law, and notice and demand shall be made by the tax 5 commission for the payment thereof. 6 (b) Notice of deficiency. If the jeopardy assessment is made before 7 any notice in respect of the tax to which the jeopardy assessment 8 relates has been mailed under section 11-1781 of this subchapter, then 9 the tax commission shall mail a notice under such section within sixty 10 days after the making of the assessment. 11 (c) Amount assessable before decision of tax commission. The jeopardy 12 assessment may be made in respect of a deficiency greater or less than 13 that of which notice is mailed to the taxpayer and whether or not the 14 taxpayer has theretofore filed a petition with the tax commission. The 15 tax commission may, at any time before rendering its decision, abate 16 such assessment, or any unpaid portion thereof, to the extent that it 17 believes the assessment to be excessive in amount. The tax commission 18 may in its decision redetermine the entire amount of the deficiency and 19 of all amounts assessed at the same time in connection therewith. 20 (d) Amount assessable after decision of tax commission. If the 21 jeopardy assessment is made after the decision of the tax commission is 22 rendered, such assessment may be made only in respect of the deficiency 23 determined by the tax commission in its decision. 24 (e) Expiration of right to assess. A jeopardy assessment may not be 25 made after the decision of the tax commission has become final or after 26 the taxpayer has made an application for review of the decision of the 27 tax commission. 28 (f) Collection of unpaid amounts. When a petition has been filed with 29 the tax commission and when the amount which should have been assessed 30 has been determined by a decision of the tax commission which has become 31 final, then any unpaid portion, the collection of which has been stayed 32 by bond, shall be collected as part of the tax upon notice and demand 33 from the tax commission, and any remaining portion of the assessment 34 shall be abated. If the amount already collected exceeds the amount 35 determined as the amount which should have been assessed, such excess 36 shall be credited or refunded to the taxpayer as provided in section 37 11-1786 of this subchapter without the filing of claim therefor. If the 38 amount determined as the amount which should have been assessed is 39 greater than the amount actually assessed, then the difference shall be 40 assessed and shall be collected as part of the tax upon notice and 41 demand from the tax commission. 42 (g) Abatement if jeopardy does not exist. The tax commission may 43 abate the jeopardy assessment if it finds that jeopardy does not exist. 44 Such abatement may not be made after a decision of the tax commission in 45 respect of the deficiency has been rendered or, if no petition is filed 46 with the tax commission, after the expiration of the period for filing 47 such petition. The period of limitation on the making of assessments 48 and levy or a proceeding for collection, in respect of any deficiency, 49 shall be determined as if the jeopardy assessment so abated had not been 50 made, except that the running of such period shall in any event be 51 suspended for the period from the date of such jeopardy assessment until 52 the expiration of the tenth day after the day on which such jeopardy 53 assessment is abated. 54 (h) Bond to stay collection. The collection of the whole or any 55 amount of any jeopardy assessment may be stayed by filing with the tax 56 commission, within such time as may be fixed by regulation, a bond in anS. 8474 975 1 amount equal to the amount as to which the stay is desired, conditioned 2 upon the payment of the amount, together with interest thereon, the 3 collection of which is stayed at the time at which, but for the making 4 of the jeopardy assessment, such amount would be due. Upon the filing 5 of the bond the collection of so much of the amount assessed as is 6 covered by the bond shall be stayed. The taxpayer shall have the right 7 to waive such stay at any time in respect of the whole or any part of 8 the amount covered by the bond, and if as a result of such waiver any 9 part of the amount covered by the bond is paid, then the bond shall at 10 the request of the taxpayer, be proportionately reduced. If any portion 11 of the jeopardy assessment is abated, or if a notice of deficiency under 12 section 11-1781 of this subchapter is mailed to the taxpayer in a lesser 13 amount, the bond shall, at the request of the taxpayer, be proportion- 14 ately reduced. 15 (i) Petition to tax commission. If the bond is given before the 16 taxpayer has filed his or her petition under section 11-1789 of this 17 subchapter, the bond shall contain a further condition that if a peti- 18 tion is not filed within the period provided in such section, then the 19 amount, the collection of which is stayed by the bond, will be paid on 20 notice and demand at any time after the expiration of such period, 21 together with interest thereon from the date of the jeopardy notice and 22 demand to the date of notice and demand under this subdivision. The 23 bond shall be conditioned upon the payment of so much of such assess- 24 ment, collection of which is stayed by the bond, as is not abated by a 25 decision of the tax commission which has become final. If the tax 26 commission determines that the amount assessed is greater than the 27 amount which should have been assessed, then the bond shall, at the 28 request of the taxpayer, be proportionately reduced when the decision of 29 the tax commission is rendered. 30 (j) Stay of sale of seized property pending tax commission decision. 31 Where a jeopardy assessment is made, the property seized for the 32 collection of the tax shall not be sold: 33 (1) if subdivision (b) of this section is applicable, prior to the 34 issuance of the notice of deficiency and the expiration of the time 35 provided in section 11-1789 of this subchapter for filing a petition 36 with the tax commission, and 37 (2) if a petition is filed with the tax commission, whether before or 38 after the making of such jeopardy assessment, prior to the expiration of 39 the period during which the assessment of the deficiency would be 40 prohibited if subdivision (a) of this section were not applicable. 41 Such property may be sold if the taxpayer consents to the sale, or if 42 the tax commission determines that the expenses of conservation and 43 maintenance will greatly reduce the net proceeds, or if the property is 44 perishable. 45 (k) Interest. For the purpose of subdivision (a) of section 11-1784 46 of this subchapter, the last date prescribed for payment shall be deter- 47 mined without regard to any notice and demand for payment issued under 48 this section prior to the last date otherwise prescribed for such 49 payment. 50 (l) Early termination of taxable year. If the tax commission finds 51 that a taxpayer designs quickly to depart from this state or to remove 52 his or her property therefrom, or to conceal himself or herself or his 53 or her property therein, or to do any other act tending to prejudice or 54 to render wholly or partly ineffectual proceedings to collect the city 55 personal income tax for the current or the preceding taxable year unless 56 such proceedings be brought without delay, the tax commission shallS. 8474 976 1 declare the taxable period for such taxpayer immediately terminated, and 2 shall cause notice of such finding and declaration to be given the 3 taxpayer, together with a demand for immediate payment of the tax for 4 the taxable period so declared terminated and of the tax for the preced- 5 ing taxable year or so much of such tax as is unpaid, whether or not the 6 time otherwise allowed by law for filing return and paying the tax has 7 expired; and such taxes shall thereupon become immediately due and paya- 8 ble. In any proceeding brought to enforce payment of taxes made due and 9 payable by virtue of the provisions of this subdivision, the finding of 10 the tax commission made as herein provided, whether made after notice to 11 the taxpayer or not, shall be for all purposes presumptive evidence of 12 jeopardy. 13 (m) Reopening of taxable period. Notwithstanding the termination of 14 the taxable period of the taxpayer by the tax commission, as provided in 15 subdivision (1) of this section, the tax commission may reopen such 16 taxable period each time the taxpayer is found by the tax commission to 17 have received income, within the current taxable year, since the termi- 18 nation of such period. A taxable period so terminated by the tax 19 commission may be reopened by the taxpayer if he or she files with the 20 tax commission a true and accurate return of taxable income and credits 21 allowed under this chapter for such taxable period, together with such 22 other information as the tax commission may by regulations prescribe. 23 (n) Furnishing of bond where taxable year is closed by the tax 24 commission. Payment of taxes shall not be enforced by any proceedings 25 under the provisions of subdivision (1) of this section prior to the 26 expiration of the time otherwise allowed for paying such taxes if the 27 taxpayer furnishes, under regulations prescribed by the tax commission, 28 a bond to insure the timely making of returns with respect to, and 29 payment of, such taxes or any city personal income taxes for prior 30 years. 31 § 11-1795 Criminal penalties; cross-reference. For criminal penal- 32 ties, see article thirty-seven of the tax law. 33 § 11-1796 Income taxes of members of armed forces and victims of 34 certain terrorist attacks. (a) Time to be disregarded. In the case of 35 an individual serving in the armed forces of the United States, or serv- 36 ing in support of such armed forces, in an area designated by the presi- 37 dent of the United States by executive order as a "combat zone" at any 38 time during the period designated by the president by executive order as 39 the period of combatant activities in such zone, or hospitalized inside 40 or outside the state as a result of injury received while serving in 41 such an area during such time, the period of service in such area, plus 42 the period of continuous hospitalization inside or outside the state 43 attributable to such injury, and the next one hundred eighty days there- 44 after, shall be disregarded in determining, under this chapter, in 45 respect of the city personal income tax liability, including any inter- 46 est, penalty, or addition to the tax, of such individual: 47 (1) Whether any of the following acts was performed within the time 48 prescribed therefor: 49 (A) filing any return of income tax, except withholding tax; 50 (B) payment of any income tax, except withholding tax, or any install- 51 ment thereof or of any other liability in respect thereof; 52 (C) filing a petition with the tax commission for credit or refund or 53 for redetermination of a deficiency, or application for review of a 54 decision rendered by the tax commission; 55 (D) allowance of a credit or refund of city personal income tax; 56 (E) filing a claim for credit or refund of city personal income tax;S. 8474 977 1 (F) assessment of city personal income tax; 2 (G) giving or making any notice or demand for the payment of any city 3 personal income tax, or with respect to any liability to the city in 4 respect of such income tax; 5 (H) collection, by the tax commission, by levy or otherwise of the 6 amount of any liability in respect of such income tax; 7 (I) bringing suit by the city, the state, or any officer, on their 8 behalf, in respect of any liability in respect of such income tax; and 9 (J) any other act required or permitted under this chapter or speci- 10 fied in regulations prescribed under this section by the tax commission. 11 (2) The amount of any credit or refund. 12 (b) Special rule for overpayments. (1) Subdivision (a) of this section 13 shall not apply for purposes of determining the amount of interest on 14 any overpayment of tax. 15 (2) If an individual is entitled to the benefits of subdivision (a) of 16 this section with respect to any return, amended return, or claim for 17 credit or refund, and such return, amended return or claim is timely 18 filed, determined after the application of such subdivision, paragraph 19 three of subdivision (a) and subdivision (c) of section 11-1788 of this 20 subchapter of this title shall not apply. 21 (c) Action taken before ascertainment of right to benefits. The 22 assessment or collection of the tax imposed by this chapter or of any 23 liability in respect of such tax, or any action or proceeding by or on 24 behalf of the city in connection therewith, may be made, taken, begun, 25 or prosecuted in accordance with law, without regard to the provisions 26 of subdivision (a) of this section, unless prior to such assessment, 27 collection, action, or proceeding it is ascertained that the person 28 concerned is entitled to the benefits of subdivision (a) of this 29 section. 30 (d) Members of armed forces dying in action. In the case of any person 31 who dies while in active service as a member of the armed forces of the 32 United States, if such death occurred while serving in a combat zone 33 during a period of combatant activities in such zone, as described in 34 subdivision (a) of this section, or as a result of wounds, disease or 35 injury incurred while so serving, the tax imposed by this chapter shall 36 not apply with respect to the taxable year in which falls the date of 37 his or her death, or with respect to any prior taxable year ending on or 38 after the first day so served in a combat zone, and no returns shall be 39 required in behalf of such person or his or her estate for such year; 40 and the tax for any such taxable year which is unpaid at the date of 41 death, including interest, additions to tax and penalties, if any, shall 42 not be assessed and, if assessed, the assessment shall be abated and, if 43 collected, shall be refunded to the legal representative of such estate 44 if one has been appointed and has qualified, or, if no legal represen- 45 tative has been appointed or has qualified, to the surviving spouse. 46 (e) Treatment of individuals performing Desert Shield services. (1) 47 Any individual who performed Desert Shield services shall be entitled to 48 the benefits of subdivisions (a) and (b) of this section in the same 49 manner as if such services were services referred to in subdivision (a) 50 of this section. 51 (2) For purposes of this subdivision, the term "Desert Shield 52 services" means any services in the armed forces of the United States or 53 in support of such armed forces if 54 (A) such services are performed in the area designated by the presi- 55 dent of the United States as the "Persian Gulf Desert Shield area", andS. 8474 978 1 (B) such services are performed during the period beginning on August 2 second, nineteen hundred ninety, and ending on the date on which any 3 portion of the area referred to in subparagraph (A) of this paragraph is 4 designated by the president as a combat zone pursuant to section one 5 hundred twelve of the internal revenue code. 6 (f) Relief for personnel under hostile fire. For purposes of this 7 section, members of the armed forces of the United States who perform 8 military service in an area outside an area designated by the president 9 of the United States by executive order as a "combat zone", which 10 service is in direct support of military operations in such zone and is 11 performed under conditions which qualify such members for hostile fire 12 pay, as authorized under subdivision (a) of section nine of the federal 13 uniformed services pay act of nineteen hundred sixty-three, shall, 14 during the period of such qualifying service, be deemed to have served 15 in such combat zone. 16 (g) Application to spouse. The provisions of subdivisions (a), (b), 17 (c), (e) and (f) of this section shall apply to the spouse of any indi- 18 vidual entitled to the benefits of subdivision (a) of this section; 19 provided, however, that such subdivisions shall not apply for any spouse 20 for any taxable year beginning more than two years after the date desig- 21 nated under section one hundred twelve of the internal revenue code as 22 the date of termination of combatant activities in a combat zone. 23 (h) Individuals dying as a result of certain attacks. (1) General. In 24 the case of a specified terrorist victim, any tax imposed by this chap- 25 ter shall not apply: (A) with respect to the taxable year in which 26 falls the date of death; and (B) with respect to any prior taxable year 27 in the period beginning with the last taxable year ending before the 28 taxable year in which the wounds or injury referred to in paragraph 29 three of this subdivision were incurred. 30 (2) Taxation of certain benefits. Paragraph one of this subdivision 31 shall not apply to the amount of any tax imposed by this chapter which 32 would be computed by only taking into account the items of income, gain, 33 or other amounts determined by the United States secretary of the treas- 34 ury to be taxable pursuant to paragraph three of subdivision (d) of 35 section six hundred ninety-two of the internal revenue code. 36 (3) Specified terrorist victim. For purposes of this subdivision, the 37 term "specified terrorist victim" means any decedent who dies as a 38 result of wounds or injury incurred as a result of the terrorist attacks 39 against the United States on September eleventh, two thousand one, 40 provided, however, such term shall not include any individual identified 41 by the attorney general of the United States to have been a participant 42 or conspirator in any such attack or a representative of such an indi- 43 vidual. 44 § 11-1797 General powers of tax commission. (a) General. The tax 45 commission shall administer and enforce the tax imposed by this chapter 46 and it is authorized to make such rules and regulations, and to require 47 such facts and information to be reported, as it may deem necessary to 48 enforce the provisions of this chapter. 49 (b) Examination of books and witnesses. (1) The tax commission for the 50 purpose of ascertaining the correctness of any return, or for the 51 purpose of making an estimate of taxable income of any person, shall 52 have power to examine or to cause to have examined, by any agent or 53 representative designated by it for that purpose, any books, papers, 54 records or memoranda bearing upon the matters required to be included in 55 the return, and may require the attendance of the person rendering the 56 return or any officer or employee of such person, or the attendance ofS. 8474 979 1 any other person having knowledge in the premises, and may take testimo- 2 ny and require proof material for its information, with power to admin- 3 ister oaths to such person or persons. 4 (2) The tax commission may take any action under paragraph one of this 5 subdivision to inquire into the commission of any offense connected with 6 the administration or enforcement of this chapter, provided, however, 7 that notwithstanding the provisions of section 11-1774 of this chapter 8 no such action shall be taken after a referral by the department or the 9 tax commission to the attorney general, a district attorney or any other 10 prosecutorial agency is in effect. 11 (c) Abatement authority. The tax commission, of its own motion, may 12 abate any small unpaid balance of an assessment of city personal income 13 tax, or any liability in respect thereof, if the tax commission deter- 14 mines under uniform rules prescribed by it that the administration and 15 collection costs involved would not warrant collection of the amount 16 due. It may also abate, of its own motion, the unpaid portion of the 17 assessment of any tax or any liability in respect thereof, which is 18 excessive in amount, or is assessed after the expiration of the period 19 of limitation properly applicable thereto, or is erroneously or illegal- 20 ly assessed. No claim for abatement under this subdivision shall be 21 filed by a taxpayer. 22 (d) Special refund authority. Where no questions of fact or law are 23 involved and it appears from the records of the tax commission that any 24 moneys have been erroneously or illegally collected from any taxpayer or 25 other person, or paid by such taxpayer or other person under a mistake 26 of facts, pursuant to the provisions of this chapter, the tax commission 27 at any time, without regard to any period of limitations, shall have the 28 power, upon making a record of its reasons therefor in writing, to cause 29 such moneys so paid and being erroneously and illegally held to be 30 refunded and to issue therefor its certificate to the comptroller. 31 (e) Secrecy requirement and penalties for violation. (1) Except in 32 accordance with proper judicial order or as otherwise provided by law, 33 it shall be unlawful for the tax commission, any tax commissioner, any 34 officer or employee of the department of taxation and finance, any 35 person engaged or retained by such department on an independent contract 36 basis, any depositary to which any return may be delivered as provided 37 in subdivision (h) or (i) of this section, any officer or employee of 38 such depositary, or any person who, pursuant to this section, is permit- 39 ted to inspect any report or return or to whom a copy, an abstract or a 40 portion of any report or return is furnished, or to whom any information 41 contained in any report or return is furnished, to divulge or make known 42 in any manner the amount of income or any particulars set forth or 43 disclosed in any report or return required under this chapter. 44 (2) The officers charged with the custody of such reports and returns 45 shall not be required to produce any of them or evidence of anything 46 contained in them in any action or proceeding in any court, except on 47 behalf of the tax commission in an action or proceeding under the 48 provisions of this chapter, the tax law or in any other action or 49 proceeding involving the collection of a tax due under this chapter or 50 such tax law to which the city, state or the tax commission is a party 51 or a claimant, or on behalf of any party to any action or proceeding 52 under the provisions of this chapter when the reports, returns or facts 53 shown thereby are directly involved in such action or proceeding, in any 54 of which events the court may require the production of, and may admit 55 in evidence, so much of said reports, returns or of the facts shown 56 thereby, as are pertinent to the action or proceeding and no more. TheS. 8474 980 1 tax commission may, nevertheless, publish a copy or a summary of any 2 decision rendered after the hearing required under section 11-1789 of 3 this subchapter. 4 (3) Nothing in this section shall be construed to prohibit the deliv- 5 ery by the state commissioner of taxation and finance to the county 6 clerk of a county within the city of New York of a mailing list of indi- 7 viduals to whom income tax forms are mailed by the state commissioner of 8 taxation and finance for the sole purpose of compiling a list of 9 prospective jurors as provided in article sixteen of the judiciary law. 10 Provided, however, such delivery shall only be made pursuant to an order 11 of the chief administrator of the courts, appointed pursuant to section 12 two hundred ten of such law. No such order may be issued unless such 13 chief administrator is satisfied that such mailing list is needed to 14 compile a proper list of prospective jurors for the county for which 15 such order is sought and that, in view of the responsibilities imposed 16 by the various laws of the state on the department of taxation and 17 finance, it is reasonable to require the state commissioner of taxation 18 and finance to furnish such list. Such order shall provide that such 19 list shall be used for the sole purpose of compiling a list of prospec- 20 tive jurors and that such county clerk shall take all necessary steps to 21 insure that the list is kept confidential and that there is no unauthor- 22 ized use or disclosure of such list. Furthermore, nothing in this 23 section shall be construed to prohibit the delivery to a taxpayer or his 24 or her duly authorized representative of a certified copy of any return 25 or report filed in connection with his or her tax or to prohibit the 26 publication of statistics so classified as to prevent the identification 27 of particular reports or returns and the items thereof, or the 28 inspection by the attorney general or other legal representatives of the 29 state or city of the report or return of any taxpayer who shall bring 30 action to set aside or review the tax based thereon, or against whom an 31 action or proceeding under this chapter has been recommended by the 32 commissioner of taxation and finance, the corporation counsel or the 33 attorney general or has been instituted, or the inspection of the 34 reports or returns required under this chapter by the comptroller or 35 duly designated officer or employee of the state department of audit and 36 control, for purposes of the audit of a refund of any tax paid by a 37 taxpayer under this chapter, or the furnishing to the state department 38 of social services of the amount of an overpayment of tax and interest 39 thereon certified to the comptroller to be credited against past-due 40 support pursuant to section one hundred seventy-one-c of the tax law and 41 of the name and social security number of the taxpayer who made such 42 overpayment or the furnishing to the New York state higher education 43 services corporation of the amount of an overpayment of tax and interest 44 thereon certified to the comptroller to be credited against the amount 45 of a default in repayment of a guaranteed student loan pursuant to 46 section one hundred seventy-one-d of the tax law and of the name and 47 social security number of the taxpayer who made such overpayment or the 48 furnishing to the state university of New York or the city university of 49 New York or the attorney general on behalf of such state or city univer- 50 sity the amount of an overpayment of tax and interest thereon certified 51 to the comptroller to be credited against the amount of a default in 52 repayment of a state university loan or city university loan pursuant to 53 section one hundred seventy-one-e of the tax law and of the name and 54 social security number of the taxpayer who made such overpayment, or the 55 disclosing to a state agency, pursuant to section one hundred seventy- 56 one-f of the tax law, of the amount of an overpayment and interest ther-S. 8474 981 1 eon certified to the comptroller to be credited against a past-due 2 legally enforceable debt owed to such agency and of the name and social 3 security number of the taxpayer who made such overpayment, or the 4 disclosing to the commissioner of finance of the city of New York, 5 pursuant to section one hundred seventy-one-1 of the tax law, of the 6 amount of an overpayment and interest thereon certified to the comp- 7 troller to be credited against a city of New York tax warrant judgment 8 debt and of the name and social security number of the taxpayer who made 9 such overpayment. Reports and returns shall be preserved for three years 10 and thereafter until the state commissioner of taxation and finance 11 orders them to be destroyed. 12 (3-a) Notwithstanding the provisions of paragraph one of this subdivi- 13 sion, the state commissioner of taxation and finance or the commissioner 14 of finance may disclose to a taxpayer or a taxpayer's related member, as 15 defined in subdivision (t) of section 11-1712 of this chapter, informa- 16 tion relating to any royalty paid, incurred or received by such taxpayer 17 or related member to or from the other, including the treatment of such 18 payments by the taxpayer or the related member in any report or return 19 transmitted to the state commissioner of taxation and finance under this 20 chapter or the New York state tax law or the commissioner of finance 21 under this title. 22 (4) (A) Any officer or employee of the state, who willfully violates 23 the provisions of this subdivision shall be dismissed from office and be 24 incapable of holding any public office in this state for a period of 25 five years thereafter. 26 (B) Cross-reference: For criminal penalties, see article thirty-seven 27 of the tax law. 28 (f) Cooperation with the United States and other states. Notwith- 29 standing the provisions of subdivision (e) of this section, the tax 30 commission may permit the secretary of the treasury of the United States 31 or his or her delegates, or the proper tax officer of any state imposing 32 an income tax upon the incomes of individuals, or the authorized repre- 33 sentative of either such officer, to inspect any return filed under this 34 chapter, or may furnish to such officer or his or her authorized repre- 35 sentative an abstract of any such return or supply him or her with 36 information concerning an item contained in any such return, or 37 disclosed by any investigation of tax liability under this chapter, but 38 such permission shall be granted or such information furnished to such 39 officer or his or her representative only if the laws of the United 40 States or of such other state, as the case may be, grant substantially 41 similar privileges to the commission or officer of this state charged 42 with the administration of the tax imposed by this chapter and such 43 information is to be used for tax purposes only; and provided further 44 the commissioner of taxation and finance may furnish to the commissioner 45 of internal revenue or his or her authorized representative such returns 46 filed under this chapter and other tax information, as he or she may 47 consider proper, for use in court actions or proceedings under the 48 internal revenue code, whether civil or criminal, where a written 49 request therefor has been made to the commissioner of taxation and 50 finance by the secretary of the treasury of the United States or his or 51 her delegates, provided the laws of the United States grant substantial- 52 ly similar powers to the secretary of the treasury of the United States 53 or his or her delegates. Where the commissioner of taxation and finance 54 has so authorized use of returns and other information in such actions 55 or proceedings, officers and employees of the department of taxation andS. 8474 982 1 finance may testify in such actions or proceedings in respect to such 2 returns or other information. 3 (g) Cooperation with the cities of the state of New York. Notwith- 4 standing the provisions of subdivision (e) of this section, the tax 5 commission may permit the proper city officer of any city of the state 6 of New York imposing a personal income tax upon the incomes of resi- 7 dents, or an unincorporated business income tax, or an earnings tax on 8 nonresidents, or the authorized representative of any such officer, to 9 inspect any return filed under this chapter, or may furnish to such 10 officer or his or her authorized representative an abstract of any such 11 return or supply him or her with information concerning an item 12 contained in any such return, or disclosed by any investigation of tax 13 liability under this chapter, but such permission shall be granted or 14 such information furnished to such officer or his or her representative 15 only if the local laws of such city grant substantially similar privi- 16 leges to the commission or officer of this state charged with the admin- 17 istration of the tax imposed by this chapter and such information is to 18 be used for tax purposes only; and provided further the commissioner of 19 taxation and finance may furnish to such city officer or the legal 20 representative of such city such returns filed under this chapter and 21 other tax information, as he or she may consider proper, for use in 22 court actions or proceedings under such local law, whether civil or 23 criminal, where a written request therefor has been made to the commis- 24 sioner of taxation and finance by such city officer or his or her dele- 25 gate, provided the local law of such city grants substantially similar 26 powers to such city officer or his or her delegate. Where the commis- 27 sioner of taxation and finance has so authorized use of returns and 28 other information in such actions or proceedings, officers and employees 29 of the department of taxation and finance may testify in such actions or 30 proceedings in respect to such returns or other information. 31 (h) Withholding returns. Notwithstanding the provisions of subdivision 32 (e) of this section the tax commission in its discretion, when making 33 deposits, pursuant to section 11-1798 of this subchapter, of taxes with- 34 held by employers, may deliver to the depositary the withholding returns 35 filed by such employers as provided in section 11-1774 of this chapter, 36 for the purpose of insuring that all money so deposited shall be 37 correctly credited to taxpayers' accounts. 38 (i) Filing returns and making payments to depository banks. Notwith- 39 standing the provisions of subdivision (e) of this section, the tax 40 commission, in its discretion, may require or permit any or all individ- 41 uals, estates or trusts liable for any tax imposed by this chapter, to 42 make payments on account of estimated tax and payment of any tax, penal- 43 ty or interest imposed by this chapter to banks, banking houses or trust 44 companies designated by the tax commission and to file reports and 45 returns with such banks, banking houses or trust companies as agents of 46 the tax commission, in lieu of making any such payment to the tax 47 commission. However, the tax commission shall designate only such banks, 48 banking houses or trust companies as are or shall be designated by the 49 comptroller as depositories pursuant to section 11-1798 of this subchap- 50 ter. 51 (j) (1) Authority to set interest rates. The commissioner of taxation 52 and finance shall set the overpayment and underpayment rates of interest 53 to be paid pursuant to sections 11-1784, 11-1785 and 11-1788 of this 54 subchapter, but if no such rates of interest are set, such overpayment 55 rate shall be deemed to be set at six percent per annum and the under- 56 payment rate shall be deemed to be set at seven and one-half per annum.S. 8474 983 1 Such rates shall be the rates prescribed by paragraphs two and four of 2 this subdivision, but shall not be less than seven and one-half percent 3 per annum. Any such rates set by such commissioner shall apply to taxes, 4 or any portion thereof, which remain or become due or overpaid on or 5 after the date on which such rates become effective and shall apply only 6 with respect to interest computed or computable for periods or portions 7 of periods occurring in the period during which such rates are in 8 effect. 9 (1) Authority to set interest rates. The commissioner of taxation and 10 finance shall set the overpayment and underpayment rates of interest to 11 be paid pursuant to sections 11-1784, 11-1785 and 11-1788 of this 12 subchapter, but if no such rates of interest are set, such rates shall 13 be deemed to be set at six percent per annum. Such rates shall be the 14 rates prescribed by paragraphs two and four of this subdivision, but the 15 underpayment rate shall not be less than six percent per annum. Any such 16 rates set by such commissioner shall apply to taxes, or any portion 17 thereof, which remain or become due or overpaid on or after the date on 18 which such rates become effective and shall apply only with respect to 19 interest computed or computable for periods or portions of periods 20 occurring in the period during which such rates are in effect. 21 (2) Rates of interest. (A) Overpayment rate. The overpayment rate of 22 interest set under this subdivision shall be the sum of (i) the federal 23 short-term rate as provided under paragraph three of this subdivision, 24 plus (ii) two percentage points. 25 (B) Underpayment rate. The underpayment rate of interest set under 26 this subdivision shall be the sum of (i) the federal short-term rate as 27 provided under paragraph three of this subdivision, plus (ii) five and 28 one-half percentage points. 29 (3) Federal short-term rate. For the purposes of this subdivision: 30 (A) The federal short-term rate for any month shall be the federal 31 short-term rate determined by the United States secretary of the treas- 32 ury during such month in accordance with subsection (d) of section 33 twelve hundred seventy-four of the internal revenue code for use in 34 connection with section six thousand six hundred twenty-one of the 35 internal revenue code. Any such rate shall be rounded to the nearest 36 full percent, or, if a multiple of one-half of one percent, such rate 37 shall be increased to the next highest full percent. 38 (B) Period during which rate applies. 39 (i) In general. Except as provided in clauses (ii) and (iii) of this 40 subparagraph, the federal short-term rate for the first month in each 41 calendar quarter shall apply during the first calendar quarter beginning 42 after such month. 43 (ii) Special rule for individual estimated tax. In determining the 44 addition to tax under subdivision (c) of section 11-1785 of this 45 subchapter for failure to pay estimated tax for any taxable year, the 46 federal short-term rate which applies during the third month following 47 the taxable year shall also apply during the first fifteen days of the 48 fourth month following such taxable year. 49 (iii) Special rule for the month of September, nineteen hundred eight- 50 y-nine. The federal short-term rate for the month of April, nineteen 51 hundred eighty-nine shall apply with respect to setting the rate of 52 interest for the month of September, nineteen hundred eighty-nine. 53 (4) Notwithstanding the provisions of paragraph two of this subdivi- 54 sion to the contrary, in the case of interest payable by an employer 55 with respect to income taxes required to be withheld and paid over by 56 him or her pursuant to the provisions of subchapter four of this chapterS. 8474 984 1 and with respect to interest payable to an employer pursuant to subdivi- 2 sion (c) of section 11-1786 of this subchapter, the rates of interest 3 prescribed by this section shall be the overpayment and underpayment 4 rates of interest prescribed in paragraph two of subsection (e) of 5 section one thousand ninety-six of the tax law. 6 (5) In computing the amount of any interest required to be paid under 7 this article by the commissioner of taxation and finance or by the 8 taxpayer, or any other amount determined by reference to such amount of 9 interest, such interest and such amount shall be compounded daily. The 10 provisions of this paragraph shall not apply for purposes of computing 11 the amount of any addition to tax for failure to pay estimated tax under 12 subdivision (c) of section 11-1785 of this subchapter. 13 (6) Publication of interest rates. The commissioner of taxation and 14 finance shall cause to be published in the section for miscellaneous 15 notices in the state register, and give other appropriate general notice 16 of, the interest rates to be set under this subdivision no later than 17 twenty days preceding the first day of the calendar quarter during which 18 such interest rates apply. The setting and publication of such interest 19 rates shall not be included within paragraph (a) of subdivision two of 20 section one hundred two of the state administrative procedure act relat- 21 ing to the definition of a rule. 22 (7) Cross-reference. For provisions relating to the power of the 23 commissioner of taxation and finance to abate small amounts of interest, 24 see subdivision (c) of this section. 25 (k) Disclosure of collection activities with respect to joint return. 26 Notwithstanding the provisions of subdivision (e) of this section, if 27 any deficiency of tax with respect to a joint return is assessed and the 28 individuals filing such return are no longer married or no longer reside 29 in the same household, upon request in writing by either of such indi- 30 viduals, the commissioner of taxation and finance shall disclose in 31 writing to the individual making the request whether such commissioner 32 has attempted to collect such deficiency from such other individual, the 33 general nature of such collection activities, and the amount collected. 34 The opening paragraph of this subdivision shall not apply to any defi- 35 ciency which may not be collected by reason of expiration of time within 36 which to issue a warrant under subdivision (c) of section 11-1792 of 37 this subchapter or within which to collect such tax by execution and 38 levy or by court proceeding. 39 (l) Disclosure of certain information where more than one person is 40 subject to penalty. If the commissioner of taxation and finance deter- 41 mines that a person is liable for a penalty under subdivision (g) of 42 section 11-1785 of this subchapter with respect to any failure, upon 43 request in writing of such person, such commissioner shall disclose in 44 writing to such person (1) the name of any other person whom such 45 commissioner has determined to be liable for such penalty with respect 46 to such failure, and (2) whether such commissioner has attempted to 47 collect such penalty from such other person, the general nature of such 48 collection activities, and the amount collected. 49 (m) (1) Notwithstanding the provisions of subdivision (e) of this 50 section, upon written request from the chairperson of the committee on 51 ways and means of the United States House of Representatives, the chair- 52 person of the committee on finance of the United States Senate, or the 53 chairperson of the joint committee on taxation of the United States 54 Congress, the commissioner of taxation and finance shall furnish such 55 committee with any current or prior year returns specified in such 56 request that were filed under this article by the president of theS. 8474 985 1 United States, vice-president of the United States, member of the United 2 States Congress representing New York state, or any person who served in 3 or was employed by the executive branch of the government of the United 4 States on the executive staff of the president, in the executive office 5 of the president, or in an acting or confirmed capacity in a position 6 subject to confirmation by the United States senate; or, in New York 7 state: a statewide elected official, as defined in paragraph (a) of 8 subdivision one of section seventy-three-a of the public officers law; a 9 state officer or employee, as defined in subparagraph (i) of paragraph 10 (c) of subdivision one of such section seventy-three-a; a political 11 party chairperson, as defined in paragraph (h) of subdivision one of 12 such section seventy-three-a; a local elected official, as defined in 13 subdivisions one and two of section eight hundred ten of the general 14 municipal law; a person appointed, pursuant to law, to serve due to 15 vacancy or otherwise in the position of a local elected official, as 16 defined in subdivisions one and two of section eight hundred ten of the 17 general municipal law; a member of the state legislature; or a judge or 18 justice of the unified court system; provided however that, prior to 19 furnishing any return, the commissioner shall redact any copy of a 20 federal return, or portion thereof, attached to, or any information on a 21 federal return that is reflected on, such return, and any social securi- 22 ty numbers, account numbers and residential address information. 23 (2) No returns shall be furnished pursuant to this subdivision unless 24 the chairperson of the requesting committee certifies in writing that 25 such returns have been requested related to, and in furtherance of, a 26 legitimate task of the Congress, that the requesting committee has made 27 a written request to the United States secretary of the treasury for 28 related federal reports or returns or report or return information, 29 pursuant to 26 U.S.C. Section 6103(f), and that if such requested 30 returns are inspected by and/or submitted to another committee, to the 31 United States House of Representatives, or to the United States Senate, 32 then such inspection and/or submission shall occur in a manner consist- 33 ent with federal law as informed by the requirements and procedures 34 established in 26 U.S.C. Section 6103(f). 35 § 11-1798 Deposit and disposition of revenues. All revenue collected 36 by the state commissioner of taxation and finance from the taxes imposed 37 pursuant to this chapter or chapter nineteen of this title shall be 38 deposited daily with such responsible banks, banking houses or trust 39 companies, as may be designated by the state comptroller, to the credit 40 of the comptroller, in trust for the city. Such deposits shall be kept 41 in trust and separate and apart from all other moneys in the possession 42 of the comptroller. The state comptroller shall require adequate securi- 43 ty from all such depositories of such revenue collected by the state 44 commissioner of taxation and finance. The state comptroller shall retain 45 in his or her hands such amounts as the commissioner of taxation and 46 finance may determine to be necessary for refunds in respect to the 47 taxes imposed by this chapter and such chapter nineteen and for reason- 48 able costs of the state commissioner of taxation and finance in adminis- 49 tering, collecting and distributing such taxes, out of which the comp- 50 troller shall pay any refunds of such taxes to which taxpayers shall be 51 entitled under this chapter and such chapter nineteen and except further 52 that he or she shall pay to a non-obligated spouse that amount of over- 53 payment of tax imposed pursuant to the authority of article thirty of 54 the tax law or former article two-E of the general city law and the 55 interest on such amount which has been credited pursuant to section one 56 hundred seventy-one-c, one hundred seventy-one-d, one hundred seventy-S. 8474 986 1 one-e, one hundred seventy-one-f or one hundred seventy-one-l of the tax 2 law and which is certified to him or her by the commissioner of taxation 3 and finance as the amount due such non-obligated spouse pursuant to 4 paragraph six of subsection (b) of section six hundred fifty-one of the 5 tax law, and he or she shall deduct a like amount which he shall pay 6 into the treasury to the credit of the general fund from amounts subse- 7 quently payable to the department of social services, the state univer- 8 sity of New York, the city university of New York, the higher education 9 services corporation, or to the revenue arrearage account or special 10 offset fiduciary account pursuant to section ninety-one-a or 11 ninety-one-c of the state finance law, as the case may be, whichever had 12 been credited the amount originally withheld from such overpayment and, 13 with respect to amounts originally withheld from such overpayment pursu- 14 ant to section one hundred seventy-one-l of the tax law and paid to the 15 city of New York, the comptroller shall collect a like amount from the 16 city of New York. The state comptroller, after reserving such refund 17 fund and such costs shall, on or before the fifteenth day of each month, 18 pay to the chief fiscal officer of the city the balance of such taxes 19 collected, to be paid into the treasury of the city to the credit of the 20 general fund except that he or she shall pay to the state department of 21 social services that amount of overpayments of the taxes imposed pursu- 22 ant to this chapter or chapter nineteen of this title and the interest 23 on such amount which is certified to him or her by the state commission- 24 er of taxation and finance as the amount to be credited against past-due 25 support pursuant to subdivision six of section one hundred seventy-one-c 26 of the tax law and except that he or she shall pay to the New York state 27 higher education services corporation that amount of overpayments of the 28 taxes imposed pursuant to this chapter or chapter nineteen of this title 29 and the interest on such amount which is certified to him or her by the 30 state commissioner of taxation and finance as the amount to be credited 31 against the amount of defaults in repayment of guaranteed student loans 32 pursuant to subdivision five of section one hundred seventy-one-d of the 33 tax law and except that he or she shall pay to the state university of 34 New York or the city university of New York, respectively, that amount 35 of overpayments of the taxes imposed pursuant to this chapter or chapter 36 nineteen of this title and the interest on such amount which is certi- 37 fied to him or her by the state commissioner of taxation and finance as 38 the amount to be credited against the amount of defaults in repayment of 39 state university or city university loans pursuant to subdivision six of 40 section one hundred seventy-one-e of the tax law, and except further 41 that, notwithstanding any other provision of law, he or she shall credit 42 to the revenue arrearage account, pursuant to section ninety-one-a of 43 the state finance law, that amount of overpayments of the taxes imposed 44 pursuant to this chapter or chapter nineteen of this title and the 45 interest on such amount which is certified to him or her by the state 46 commissioner of taxation and finance as the amount to be credited 47 against a past-due legally enforceable debt owed to a state agency 48 pursuant to paragraph (a) of subdivision six of section one hundred 49 seventy-one-f of the tax law, provided, however, he or she shall credit 50 to the special offset fiduciary account, pursuant to section 51 ninety-one-c of the state finance law, any such amount creditable as a 52 liability as set forth in paragraph (b) of subdivision six of section 53 one hundred seventy-one-f of the tax law, and except further that he or 54 she shall pay to the city of New York that amount of overpayments of tax 55 imposed pursuant to this chapter or chapter nineteen of this title and 56 the interest on such amount which is certified to him or her by theS. 8474 987 1 state commissioner of taxation and finance as the amount to be credited 2 against city of New York tax warrant judgment debt pursuant to section 3 one hundred seventy-one-l of the tax law. The amount deducted for admin- 4 istering, collecting and distributing such taxes during such monthly 5 period shall be paid by the state comptroller into the general fund of 6 the state treasury to the credit of the state purposes fund therein. The 7 first payment to such chief fiscal officer shall be made on or before 8 March fifteenth, nineteen hundred seventy-six, which payment shall 9 represent the balance of revenue after provision for refund and such 10 reasonable costs, with respect to taxes collected from January first, 11 nineteen hundred seventy-six through February twenty-ninth, nineteen 12 hundred seventy-six. Subsequent payments shall be made on or before 13 April fifteenth, nineteen hundred seventy-six and on or before the 14 fifteenth day of each succeeding month thereafter, and shall represent 15 the balance of revenue with respect to taxes collected the preceding 16 calendar month. The amounts so payable shall be certified to the state 17 comptroller by the state commissioner of taxation and finance or his or 18 her delegate, either of whom shall not be held liable for any inaccuracy 19 in such certificate. Where the amount so paid over to such chief fiscal 20 officer is more or less than the amount then due such city, the amount 21 of overpayment or underpayment shall be certified to the state comp- 22 troller by the state commissioner of taxation and finance or his or her 23 delegate, either of whom shall not be held liable for any inaccuracy in 24 such certificate. The amount of overpayment or underpayment shall be so 25 certified to the state comptroller as soon after the discovery of the 26 overpayment or underpayment as reasonably possible and subsequent 27 payments by the state comptroller to such chief fiscal officer shall be 28 adjusted by subtracting the amount of any such overpayment from, or by 29 adding the amount of any such underpayment to such number of subsequent 30 payments and distributions as the state comptroller and the state 31 commissioner of taxation and finance shall consider reasonable in view 32 of the amount of the overpayment or underpayment and all other facts and 33 circumstances. 34 § 11-1800 Enforcement with other taxes. (a) If there is assessed a 35 tax under this chapter and there is also assessed a tax or taxes against 36 the same taxpayer pursuant to article twenty-two of the tax law or under 37 chapter nineteen of this title and if the tax commission takes action 38 under such article twenty-two or under such chapter nineteen with 39 respect to the enforcement and collection of the tax or taxes assessed 40 under such articles or chapter, the tax commission shall, wherever 41 possible, accompany such action with a similar action under similar 42 enforcement and collection provisions of this chapter. 43 (b) Any moneys collected as a result of such joint action shall be 44 deemed to have been collected in proportion to the amounts due, includ- 45 ing tax, penalties, interest and additions to tax, under article twen- 46 ty-two of the tax law and this city income tax. 47 (c) Whenever the tax commission takes any action with respect to a 48 deficiency of income tax under article twenty-two of the tax law or 49 under chapter nineteen of this title, other than the action set forth in 50 subdivision (a) of this section, it may in its discretion accompany such 51 action with a similar action under such city income tax. 52 § 11-1801 Administration, collection and review. (a) Except as other- 53 wise provided in this chapter, any tax imposed by this chapter shall be 54 administered and collected by the tax commission in the same manner as 55 the tax imposed by article twenty-two of the tax law is administered and 56 collected by such commission. Whenever there is joint collection ofS. 8474 988 1 state and city personal income taxes, it shall be deemed that such 2 collections shall represent proportionately the applicable state and 3 city personal income taxes in determining the amount to be remitted to 4 the city. 5 (b) The tax commission, in its discretion, may require or permit any 6 or all persons liable for any tax imposed by this chapter to make 7 payments on account of estimated tax and payment of any tax, penalty or 8 interest to such banks, banking houses or trust companies designated by 9 the tax commission and to file returns with such banks, banking houses 10 or trust companies, as agent of the tax commission, in lieu of paying a 11 tax imposed by this chapter directly to the tax commission. However, 12 the tax commission shall designate only such banks, banking houses or 13 trust companies which are designated by the comptroller as depositories 14 of the state. 15 (c) Notwithstanding any other provisions of this chapter, the tax 16 commission may require: 17 (1) the filing of any or all of the following: 18 (A) a combined return which, in addition to the return provided for in 19 section 11-1751 of this chapter, may also include any or both of the 20 returns required to be filed by a resident individual of New York state 21 pursuant to the provisions of section six hundred fifty-one of the tax 22 law and which may be required to be filed by such individual pursuant to 23 chapter nineteen of this title and 24 (B) a combined employer's return which, in addition to the employer's 25 return provided for by this chapter, may also include any or both of the 26 employer's returns required to be filed by the same employer pursuant to 27 the provisions of section six hundred seventy-four of such law and 28 required to be filed by such employer pursuant to such chapter nineteen 29 of this title and 30 (2) where a combined return or employer's return is required, and with 31 respect to the payment of estimated tax, the tax commission may also 32 require the payment to it of a single amount which shall equal the total 33 of the amounts which would have been required to be paid with the 34 returns or employer's returns or in payment of estimated tax pursuant to 35 the provisions of article twenty-two of the tax law, and the provisions 36 of this chapter as if no combined return or employer's return were 37 required. 38 § 11-1802 Construction. This chapter shall be construed and enforced 39 in conformity with article thirty of the tax law, as added to such law 40 by chapter eight hundred eighty-one of the laws of nineteen hundred 41 seventy-five, pursuant to which article it is enacted. 42 CHAPTER 19 43 EARNINGS TAX ON NONRESIDENTS 44 SUBCHAPTER 1 45 GENERAL 46 § 11-1901 Meaning of terms. As used in this chapter, the following 47 terms shall mean and include: 48 (a) "Commissioner" means the commissioner of finance of the city 49 except that with respect to taxes imposed for any taxable year beginning 50 on or after January first, nineteen hundred seventy-six, such term shall 51 mean state tax commission. 52 (b) "Payroll period" and "employer" mean the same as payroll period 53 and employer as defined in subsections (b) and (d) of section thirty- 54 four hundred one of the internal revenue code, and "employee" shall alsoS. 8474 989 1 include all those included as employees in subsection (c) of such 2 section of such code. 3 (c) "Commissioner of finance" means the commissioner of finance of the 4 city. 5 (d) "This state" means the state of New York. 6 (e) "Wages" means wages as defined in subsection (a) of section thir- 7 ty-four hundred one of the internal revenue code, except that (1) wages 8 shall not include payments for active service as a member of the armed 9 forces of the United States and shall not include, in the case of a 10 nonresident individual or partner of a partnership doing an insurance 11 business as a member of the New York insurance exchange described in 12 section six thousand two hundred one of the insurance law, any item of 13 income, gain, loss or deduction of such business which is such individ- 14 ual's distributive or pro rata share for federal income tax purposes or 15 which such individual is required to take into account separately for 16 federal income tax purposes, and (2) wages shall include (i) the amount 17 of member or employee contributions to a retirement system or pension 18 fund picked up by the employer pursuant to subdivision f of section five 19 hundred seventeen or subdivision d of section six hundred thirteen of 20 the retirement and social security law or section 13-225.1, 13-327.1, 21 13-125.1, 13-125.2 or 13-521.1 of title thirteen of the code of the 22 preceding municipality or subdivision nineteen of section twenty-five 23 hundred seventy-five of the education law, (ii) the amount deducted or 24 deferred from an employee's salary under a flexible benefits program 25 established pursuant to section twenty-three of the general municipal 26 law or section twelve hundred ten-a of the public authorities law, (iii) 27 the amount by which an employee's salary is reduced pursuant to the 28 provisions of subdivision b of section 12-126.1 and subdivision b of 29 section 12-126.2 of title twelve of the code of the preceding munici- 30 pality, and (iv) the amount of member or employee contributions to a 31 retirement system or pension fund picked up or paid by the employer for 32 members of the Manhattan and Bronx surface transportation authority 33 pension plan and treated as employer contributions in determining income 34 tax treatment under subdivision (h) of section four hundred fourteen of 35 the Internal Revenue Code. 36 (f) "Net earnings from self-employment" means the same as net earnings 37 from self-employment as defined in subsection (a) of section fourteen 38 hundred two of the internal revenue code, except that the deduction for 39 wages and salaries paid or incurred for the taxable year which is not 40 allowed pursuant to section two hundred eighty-c of such code shall be 41 allowed, and except that an estate or trust shall be deemed to have net 42 earnings from self-employment determined in the same manner as if it 43 were an individual subject to the tax on self-employment income imposed 44 by section fourteen hundred one of the internal revenue code diminished 45 by: (1) the amount of any deduction allowed by subsection (c) of 46 section six hundred forty-two of the internal revenue code and (2) the 47 deductions allowed by sections six hundred fifty-one and six hundred 48 sixty-one of such code to the extent that they represent distributions 49 or payments to a resident of the city. However, "trade or business" as 50 used in subsection (a) of section fourteen hundred two of such code 51 shall mean the same as trade or business as defined in subsection (c) of 52 section fourteen hundred two of such code, except that paragraphs four, 53 five and six of such subsection shall not apply in determining net earn- 54 ings from self-employment taxable under this chapter. Provided, however, 55 in the case of a nonresident individual or partner of a partnership 56 doing an insurance business described in section six thousand twoS. 8474 990 1 hundred one of the insurance law, any item of income, gain, loss or 2 deduction of such business which is the individual's distributive or pro 3 rata share for federal income tax purposes or which the individual is 4 required to take into account separately for federal income tax purposes 5 shall not be considered to be "net earnings from self-employment". 6 (g) "Taxable year" means the taxpayer's taxable year for federal 7 income tax purposes. 8 (h) Resident individual. A resident individual means an individual: 9 (1) who is domiciled in the city, unless (A) he or she maintains no 10 permanent place of abode in the city, maintains a permanent place of 11 abode elsewhere, and spends in the aggregate not more than thirty days 12 of the taxable year in the city, or (B) (i) within any period of five 13 hundred forty-eight consecutive days he or she is present in a foreign 14 country or countries for at least four hundred fifty days, and (ii) 15 during such period of five hundred forty-eight consecutive days he or 16 she is not present in the city for more than ninety days and does not 17 maintain a permanent place of abode in the city at which his or her 18 spouse, unless such spouse is legally separated, or minor children are 19 present for more than ninety days, and (iii) during any period of less 20 than twelve months which would be treated as a separate taxable period 21 pursuant to section 11-1919 of this chapter, and which period is 22 contained within such period of five hundred forty-eight consecutive 23 days, he or she is present in the city for a number of days which does 24 not exceed an amount which bears the same ratio to ninety as the number 25 of days contained in such period of less than twelve months bears to 26 five hundred forty-eight, or 27 (2) who is not domiciled in the city but maintains a permanent place 28 of abode in the city and spends in the aggregate more than one hundred 29 eighty-three days of the taxable year in the city, unless such individ- 30 ual is in active service in the armed forces of the United States. 31 (i) Nonresident individual. A nonresident individual means an individ- 32 ual who is not a resident. 33 (j) Resident estate or trust. A resident estate or trust means: 34 (1) the estate of a decedent who at his or her death was domiciled in 35 the city, 36 (2) a trust, or a portion of a trust, consisting of property trans- 37 ferred by will of a decedent who at his or her death was domiciled in 38 the city, or 39 (3) a trust, or portion of a trust, consisting of the property of: 40 (A) a person domiciled in the city at the time such property was 41 transferred to the trust, if such trust or portion of a trust was then 42 irrevocable, or if it was then revocable and has not subsequently become 43 irrevocable; or 44 (B) a person domiciled in the city at the time such trust, or portion 45 of a trust, became irrevocable, if it was revocable when such property 46 was transferred to the trust but has subsequently become irrevocable. 47 For the purposes of this subdivision, a trust or portion of a trust is 48 revocable if it is subject to a power, exercisable immediately or at any 49 future time, to revest title in the person whose property constitutes 50 such trust or portion of a trust, and a trust or portion of a trust 51 becomes irrevocable when the possibility that such power may be exer- 52 cised has been terminated. 53 (k) Nonresident estate or trust. A nonresident estate or trust means 54 an estate or trust which is not a resident. 55 (l) Unless a different meaning is clearly required, any terms used in 56 this chapter shall have the same meaning as when used in a comparableS. 8474 991 1 context in the laws of the United States relating to federal taxes but 2 such meaning shall be subject to the exceptions or modifications 3 prescribed in or pursuant to article two-E of the general city law or by 4 the laws of this state. Any reference in this chapter to the internal 5 revenue code, the internal revenue code of nineteen hundred eighty-six 6 or to the laws of the United States shall mean the provisions of the 7 internal revenue code of nineteen hundred eighty-six, unless a reference 8 to the internal revenue code of nineteen hundred fifty-four is clearly 9 intended, and amendments thereto, and other provisions of the laws of 10 the United States relating to federal taxes, as the same are included in 11 the appendix and supplement to the appendix to this chapter. The quota- 12 tion of such laws of the United States is intended to make them a part 13 of this chapter and to avoid constitutional uncertainties which might 14 result if such laws were merely incorporated by reference. The quota- 15 tion of a provision of the federal internal revenue code or of any other 16 law of the United States shall not necessarily mean that it is applica- 17 ble to or has relevance to this chapter. 18 (m) With respect to any taxable year beginning in nineteen hundred 19 seventy, until and including the thirty-first day of December, nineteen 20 hundred seventy-one, "administrator" shall be read as "state tax commis- 21 sion"; "administrative agencies of the city" shall be read as "adminis- 22 trative agencies of the state"; "depositories or financial agents of the 23 city" shall be read as "depositories or financial agents of the state"; 24 "officers or employees of the department of finance of the city" shall 25 be read as "officers or employees of the state department of taxation 26 and finance"; in sections 11-1934, 11-1936, 11-1939, and 11-1942 of this 27 chapter "city" shall be read as "state"; "corporation counsel or other 28 appropriate officer of the city" or "corporation counsel of the city" 29 shall be read as "state attorney general"; and the words "it" or "its" 30 shall apply instead of the pronouns used where the reference is to tax 31 commission. Provided, however, with respect to declarations of estimated 32 tax and payments of such tax and the withholding tax requirements, until 33 and including the thirty-first day of December, nineteen hundred seven- 34 ty-one, any such terms shall be so read with respect to any taxable year 35 or other period beginning in nineteen hundred seventy-one. 36 (n) The term "partnership" shall include, unless a different meaning 37 is clearly required, a subchapter K limited liability company. The term 38 "subchapter K limited liability company" shall mean a limited liability 39 company classified as a partnership for federal income tax purposes. The 40 term "limited liability company" means a domestic limited liability 41 company or a foreign limited liability company, as defined in section 42 one hundred two of the limited liability company law, a limited liabil- 43 ity investment company formed pursuant to section five hundred seven of 44 the banking law, or a limited liability trust company formed pursuant to 45 section one hundred two-a of the banking law. 46 § 11-1902 Persons subject to tax. (a) Imposition of tax. (1) A tax is 47 hereby imposed for each taxable year ending on or after July first, 48 nineteen hundred sixty-six and on or before December thirty-first, nine- 49 teen hundred seventy and for each taxable year beginning after December 50 thirty-first, nineteen hundred ninety-nine, on the wages earned and net 51 earnings from self-employment, within the city, of every nonresident 52 individual, estate and trust which shall comprise: (i) A tax at the 53 rate of one-fourth of one percent on all wages. 54 (ii) A tax at the rate of three-eighths of one percent on all net 55 earnings from self-employment.S. 8474 992 1 (2) For each taxable year beginning on or after January first, nine- 2 teen hundred seventy-one and ending on or before December thirty-first, 3 nineteen hundred ninety-nine, a tax is hereby imposed on the wages 4 earned, and net earnings from self-employment, within the city, of every 5 nonresident individual, estate and trust which shall comprise: (i) A 6 tax at the rate of forty-five hundredths of one percent on all wages. 7 (ii) A tax at the rate of sixty-five hundredths of one percent on all 8 net earnings from self-employment. 9 (3) For each taxable year beginning in nineteen hundred seventy and 10 ending in nineteen hundred seventy-one, two tentative taxes shall be 11 computed, the first as provided in paragraph one of this subdivision and 12 the second as provided in paragraph two of this subdivision, and the tax 13 for each such year shall be the sum of that proportion of each tentative 14 tax which the number of days in nineteen hundred seventy and the number 15 of days in nineteen hundred seventy-one, respectively, bears to the 16 number of days in the entire taxable year. 17 (4) For each taxable year beginning in nineteen hundred ninety-nine 18 and ending in two thousand, two tentative taxes shall be computed, the 19 first as provided in paragraph two of this subdivision and the second as 20 provided in paragraph one of this subdivision, and the tax for each such 21 year shall be the sum of that proportion of each tentative tax which the 22 number of days in nineteen hundred ninety-nine and the number of days in 23 two thousand, respectively, bears to the number of days in the entire 24 taxable year. 25 (b) Exclusion. (1) In computing the amount of wages and net earnings 26 from self-employment taxable under subdivision (a) of this section, 27 there shall be allowed an exclusion against the total of wages and net 28 earnings from self-employment in accordance with the following table: 29 Total of wages and net earnings 30 from self-employment Exclusion allowable 31 Not over $10,000 $3,000 32 Over $10,000 but not over $20,000 $2,000 33 Over $20,000 but not over $30,000 $1,000 34 Over $30,000 None 35 (2) The exclusion allowable shall be applied pro rata against wages 36 and net earnings from self-employment. 37 (3) For taxable periods of less than one year, the exclusion allowable 38 shall be prorated pursuant to regulations of the commissioner. 39 (c) Limitation. In no event shall a taxpayer be subject to the tax 40 under this chapter in an amount greater than such taxpayer would be 41 required to pay if such taxpayer were a resident of the city and subject 42 to a tax on personal income of residents of the city adopted by the city 43 pursuant to authority granted by the general city law or the tax law. 44 § 11-1903 Taxable years to which tax imposed by this chapter applies; 45 tax for taxable years beginning prior to and ending after July first, 46 nineteen hundred sixty-six. (a) General. The tax imposed by this chapter 47 is imposed for each taxable year beginning with taxable years ending on 48 or after July first, nineteen hundred sixty-six. 49 (b) Alternate methods for determining tax for taxable years ending on 50 or after July first, nineteen hundred sixty-six. (1) The tax for any 51 taxable year ending on or after July first, nineteen hundred sixty-six 52 and on or before June thirtieth, nineteen hundred sixty-seven, shall be 53 the same part of the tax which would have been imposed had this chapter 54 been in effect for the entire taxable year as the number of months, orS. 8474 993 1 major portions thereof, of the taxable year occurring after July first, 2 nineteen hundred sixty-six is of the number of months, or major portions 3 thereof, in the taxable year. 4 (2)(i) In lieu of the method of computation of tax prescribed in para- 5 graph one of this subdivision, if the taxpayer maintains adequate 6 records for any taxable year ending on or after July first, nineteen 7 hundred sixty-six and on or before June thirtieth, nineteen hundred 8 sixty-seven, the tax for such taxable year, at the election of the 9 taxpayer, may be computed on the basis of the wages which the taxpayer 10 would have reported had he or she filed a federal income tax return for 11 a taxable year beginning July first, nineteen hundred sixty-six, and 12 ending with the close of such taxable year ending on or before June 13 thirtieth, nineteen hundred sixty-seven, and the net earnings from self- 14 employment which the taxpayer would have reported for federal income tax 15 purposes had he or she filed a self-employment tax return for a taxable 16 year beginning July first, nineteen hundred sixty-six and ending with 17 the close of such taxable year ending on or before June thirtieth, nine- 18 teen hundred sixty-seven. 19 (ii) For purposes of this paragraph, the exclusions allowable under 20 section 11-1902 of this subchapter shall be reduced by a fraction, the 21 numerator of which is the number of months, or major portions thereof, 22 of the taxable year occurring before July first, nineteen hundred 23 sixty-six, and the denominator of which is the number of months, or 24 major portions thereof, in the taxable year. Except as provided in this 25 paragraph, the tax for such period ending on or before June thirtieth, 26 nineteen hundred sixty-seven, shall be computed in accordance with the 27 other provisions of this chapter. 28 § 11-1904 Allocation to the city. (a) General. If net earnings from 29 self-employment are derived from services performed, or from sources, 30 within and without the city, there shall be allocated to the city a fair 31 and equitable portion of such earnings. 32 (b) Allocation of net earnings from self-employment. 33 (1) Place of business. If a taxpayer has no regular place of business 34 outside the city all of his or her net earnings from self-employment 35 shall be allocated to the city. 36 (2) Allocation by taxpayer's books. The portion of net earnings from 37 self-employment allocable to the city may be determined from the books 38 and records of a taxpayer's trade or business, if the methods used in 39 keeping such books and the accuracy thereof are approved by the commis- 40 sioner as fairly and equitably reflecting net earnings from self-employ- 41 ment within the city. 42 (3) Allocation by formula. If paragraph two of this subdivision does 43 not apply to the taxpayer, the portion of net earnings from self-employ- 44 ment allocable to the city shall be determined by multiplying (A) net 45 earnings from self-employment within and without the city, by (B) the 46 average of the following three percentages: 47 (i) Property percentage. The percentage computed by dividing (A) the 48 average of the value, at the beginning and end of the taxable year, of 49 real and tangible personal property connected with net earnings from 50 self-employment and located within the city, by (B) the average of the 51 value, at the beginning and end of the taxable year, of all real and 52 tangible personal property connected with the net earnings from self-em- 53 ployment and located both within and without the city. For this 54 purpose, real property shall include real property whether owned or 55 rented.S. 8474 994 1 (ii) Payroll percentage. The percentage computed by dividing (A) the 2 total wages, salaries and other personal service compensation paid or 3 incurred during the taxable year to employees in connection with the net 4 earnings from self-employment derived from a trade or business carried 5 on within the city, by (B) the total of all wages, salaries and other 6 personal service compensation paid or incurred during the taxable year 7 to employees in connection with the net earnings from self-employment 8 derived from a trade or business carried on both within and without the 9 city. 10 (iii) Gross income percentage. The percentage computed by dividing 11 (A) the gross sales or charges for services performed by or through an 12 agency located within the city, by (B) the total of all gross sales or 13 charges for services performed within and without the city. The sales 14 or charges to be allocated to the city shall include all sales negoti- 15 ated or consummated, and charges for services performed, by an employee, 16 agent, agency or independent contractor chiefly situated at, connected 17 by contract or otherwise with, or sent out from, offices or other agen- 18 cies of the trade or business from which a taxpayer is deriving net 19 earnings from self-employment, situated within the city. 20 (c) Other allocation methods. The portion of net earnings from self- 21 employment allocable to the city shall be determined in accordance with 22 rules and regulations of the commissioner if it shall appear to the 23 commissioner that the net earnings from self-employment are not fairly 24 and equitably reflected under the provisions of subdivision (b) of this 25 section. 26 (d) Special rules for real estate. Income and deductions from the 27 rental of real property and gain and loss from the sale, exchange or 28 other disposition of real property, shall not be subject to allocation 29 under subdivision (b) or (c) of this section, but shall be considered as 30 entirely derived from or connected with the place in which such property 31 is located. 32 § 11-1905 Accounting periods and methods. (a) Accounting periods. A 33 taxpayer's taxable year under this chapter shall be the same as his or 34 her taxable year for federal income tax purposes. 35 (b) Change of accounting periods. If a taxpayer's taxable year is 36 changed for federal income tax purposes, his or her taxable year for 37 purposes of this chapter shall be similarly changed. If a taxable peri- 38 od of less than twelve months results from a change of taxable year, the 39 exclusion allowable under section 11-1902 of this subchapter shall be 40 prorated under regulations of the commissioner. 41 (c) Accounting methods. A taxpayer's method of accounting under this 42 chapter shall be the same as his or her method of accounting for federal 43 income tax purposes. In the absence of any method of accounting for 44 federal income tax purposes, net earnings from self-employment within 45 the city shall be computed under such method as in the opinion of the 46 commissioner clearly reflects net earnings from self-employment within 47 the city. 48 (d) Change of accounting methods. (1) If a taxpayer's method of 49 accounting is changed for federal income tax purposes, his or her method 50 of accounting for purposes of this chapter shall be similarly changed. 51 (2) If a taxpayer's method of accounting is changed, other than from 52 an accrual to an installment method, any additional tax which results 53 from adjustments determined to be necessary solely by reason of the 54 change shall not be greater than if such adjustments were ratably allo- 55 cated and included for the taxable year of the change and the preceding 56 taxable years, beginning after July first, nineteen hundred sixty-six,S. 8474 995 1 not in excess of two, during which the taxpayer used the method of 2 accounting from which the change is made. 3 (3) If a taxpayer's method of accounting is changed from an accrual to 4 an installment method, any additional tax for the year of such change of 5 method and for any subsequent year which is attributable to the receipt 6 of installment payments properly accrued in a prior year, shall be 7 reduced by the portion of tax for any prior taxable year attributable to 8 the accrual of such installment payments, in accordance with regulations 9 of the commissioner. 10 § 11-1908 Withholding of tax on wages. On or after the first payroll 11 period beginning August twenty-seventh, nineteen hundred sixty-six, 12 every employer maintaining an office or transacting business within this 13 state and making payment of any wages taxable under this chapter shall 14 deduct and withhold from such wages for each payroll period a tax 15 computed in such manner as to result, so far as practicable, in with- 16 holding from the employee's wages during each calendar year an amount 17 substantially equivalent to the tax reasonably estimated to be due from 18 the employee under this chapter. The method of determining the amount to 19 be withheld shall be prescribed by regulations of the commissioner. 20 § 11-1909 Withholding of tax on wages for taxable periods commencing 21 on or after January first, nineteen hundred seventy-six. The provisions 22 contained in sections 11-1908, 11-1910, 11-1911, 11-1912, 11-1913 and 23 11-1914 of this subchapter shall not be applicable to taxes imposed for 24 taxable periods commencing on or after January first, nineteen hundred 25 seventy-six provided however, with respect to such periods, the 26 provisions contained in part V of article twenty-two of the tax law 27 shall be applicable with the same force and effect as if those 28 provisions had been incorporated in full in this section except that the 29 term "aggregate amount" contained in paragraphs one, two and three of 30 subsection (a) of section six hundred seventy-four of the tax law shall 31 mean the aggregate amounts of New York state personal income tax, city 32 earnings tax on nonresidents and city personal income tax on residents 33 authorized pursuant to article thirty of the tax law required to be 34 deducted and withheld and provided, however, that the provisions of such 35 paragraphs shall not be applicable to employer's returns required to be 36 filed with respect to taxes required to be deducted and withheld during 37 the calendar year nineteen hundred seventy-six, but such returns shall 38 be required to be filed with the tax commission at the times and in the 39 manner provided for in subdivision (a) of section 11-1912 of this 40 subchapter, except the term "commission" in such subdivision shall be 41 read as "tax commission." This section shall not apply to payments by 42 the United States for service in the armed forces of the United States 43 so long as the right to require deduction and withholding of tax from 44 such payments is prohibited by the laws of the United States. Service in 45 the armed forces of the United States shall have the same meaning as 46 when used in a comparable context in the laws of the United States 47 relating to withholding of city income taxes. 48 § 11-1910 Information statement for employee. Every employer required 49 to deduct and withhold tax under this chapter from the wages of an 50 employee, shall furnish to each such employee in respect of the wages 51 paid by such employer to such employee during the calendar year on or 52 before February fifteenth of the succeeding year, or, if his or her 53 employment is terminated before the close of such calendar year, within 54 thirty days from the date on which the last payment of the wages is 55 made, a written statement as prescribed by the commissioner showing the 56 total amount of wages paid by the employer to the employee, the amountS. 8474 996 1 of wages paid for services performed within the city, the amount 2 deducted and withheld as tax, and such other information as the commis- 3 sioner may prescribe. The written statement required under this 4 section may be furnished to such employee in an electronic format. 5 § 11-1911 Credit for tax withheld. Wages upon which tax is required to 6 be withheld shall be taxable under this chapter as if no withholding 7 were required, but any amount of tax actually deducted and withheld 8 under this chapter in any calendar year shall be deemed to have been 9 paid on behalf of the employee from whom withheld, and such employee 10 shall be credited with having paid that amount of tax in such calendar 11 year. For a taxable year of less than twelve months, the credit shall be 12 made under regulations of the commissioner. 13 § 11-1912 Employer's return and payment of withheld taxes. (a) Gener- 14 al. On or after the first payroll period beginning August twenty-sev- 15 enth, nineteen hundred sixty-six, every employer required to deduct and 16 withhold tax under this chapter shall, for each calendar month, on or 17 before the fifteenth day of the month following the close of such calen- 18 dar month file a withholding return as prescribed by the commissioner 19 and pay over to the commissioner or to the depository designated by the 20 commissioner, the taxes so required to be deducted and withheld, except 21 that for the month of December in any year the returns shall be filed 22 and the taxes paid on or before January thirty-first of the succeeding 23 year. Where the aggregate amount required to be deducted and withheld 24 by any employer under this chapter and under chapter seventeen of this 25 title is less than twenty-five dollars in a calendar month and the 26 aggregate of such taxes for the semi-annual period ending on June thir- 27 tieth and December thirty-first can reasonably be expected to be less 28 than one hundred fifty dollars, the commissioner may, by regulation, 29 permit an employer to file a return on or before July thirty-first for 30 the semi-annual period ending on June thirtieth and on or before January 31 thirty-first for the semi-annual period ending on December thirty-first. 32 The commissioner may, if he or she believes such action necessary for 33 the protection of the revenues, require any employer to make a return 34 and pay to him or her the tax deducted and withheld at any time, or from 35 time to time. Where the amount of wages paid by an employer is not 36 sufficient under this chapter and under chapter seventeen of this title 37 to require the withholding of tax from the wages of any of his or her 38 employees, the commissioner may, by regulation, permit such employer to 39 file an annual return on or before February twenty-eighth of the follow- 40 ing calendar year. 41 (b) Combined returns. The commissioner may by regulation provide for 42 the filing of one return which shall include the return required to be 43 filed under this section, together with the employer's return required 44 to be filed under chapter seventeen of this title. 45 (c) Deposit in trust for city. Whenever any employer fails to collect, 46 truthfully account for, pay over the tax, or make returns of the tax as 47 required in this section, the commissioner may serve a notice requiring 48 such employer to collect the taxes which become collectible after 49 service of such notice, to deposit such taxes in a bank approved by the 50 commissioner, in a separate account, in trust for the city and payable 51 to the commissioner, and to keep the amount of such tax in such account 52 until payment over to the commissioner. Such notice shall remain in 53 effect until a notice of cancellation is served by the commissioner. 54 § 11-1913 Employer's liability for withheld taxes. Every employer 55 required to deduct and withhold the tax under this chapter is hereby 56 made liable for such tax. For purposes of assessment and collection,S. 8474 997 1 any amount required to be withheld and paid over to the commissioner, 2 and any additions to tax, penalties and interest with respect thereto 3 shall be considered the tax of the employer. Any amount of tax actually 4 deducted and withheld under this chapter shall be held to be a special 5 fund in trust for the city. No employee shall have any right of action 6 against his or her employer in respect to any monies deducted and with- 7 held from his or her wages and paid over to the commissioner in compli- 8 ance or in intended compliance with this chapter. 9 § 11-1914 Employer's failure to withhold. If an employer fails to 10 deduct and withhold the tax, as required, and thereafter the tax against 11 which such tax may be credited is paid, the tax so required to be 12 deducted and withheld shall not be collected from the employer, but the 13 employer shall not be relieved from liability for any penalties, inter- 14 est or additions to the tax otherwise applicable in respect of such 15 failure to deduct and withhold. 16 § 11-1915 Combined returns, employer's returns and payments. The 17 state tax commission may require: 18 (1) The filing of any or all of the following: 19 (A) A combined return which in addition to the return provided for in 20 this chapter may also include returns required to be filed under a law 21 authorized by article thirty of the tax law and under article twenty-two 22 of the tax law. 23 (B) A combined employer's return which in addition to the employer's 24 return provided for by this chapter may also include employer's returns 25 required to be filed under a law authorized by article thirty of the tax 26 law and under article twenty-two of the tax law. 27 (2) Where a combined return or employer's return is required, and 28 with respect to the payment of estimated tax, the state tax commission 29 may also require payment of a single amount which shall be the total of 30 the amounts, total taxes less any credits or refunds, required to be 31 paid with the returns or employer's returns or in payment of estimated 32 tax pursuant to the provisions of this chapter, a law authorized by 33 article thirty of the tax law and pursuant to the provisions of article 34 twenty-two of the tax law. 35 SUBCHAPTER 2 36 RETURNS AND PAYMENT OF TAX 37 § 11-1916 Returns and payment of tax. (a) General. On or before the 38 fifteenth day of the fourth month following the close of the taxable 39 year, every person subject to the tax shall make and file a return and 40 any balance of the tax shown due on the face of such return shall be 41 paid therewith. The commissioner may, by regulation, provide for the 42 filing of returns and payment of the tax at such other times as he or 43 she deems necessary for the proper enforcement of this chapter. The 44 commissioner may also provide by regulation that any return otherwise 45 required to be made and filed under this chapter by any nonresident 46 individual need not be made and filed if such nonresident individual 47 had, during the taxable year to which the return would relate, no net 48 earnings from self-employment within the city. Any regulation allowing 49 such waiver of return may provide for additional limitations on and 50 conditions and prerequisites to the privilege of not filing a return. 51 (b) Decedents. The return for any deceased individual shall be made 52 and filed by his or her executor, administrator, or other person charged 53 with his or her property. If a final return of a decedent is for a 54 fractional part of a year, the due date of such return shall be theS. 8474 998 1 fifteenth day of the fourth month following the close of the twelve- 2 month period which began with the first day of such fractional part of 3 the year. 4 (c) Individuals under a disability. The return for an individual who 5 is unable to make a return by reason of minority or other disability 6 shall be made and filed by his or her guardian, committee, fiduciary or 7 other person charged with the care of his or her person or property, 8 other than a receiver in possession of only a part of his or her proper- 9 ty, or by his or her duly authorized agent. 10 (d) Estates and trust. The return for an estate or trust shall be made 11 and filed by the fiduciary. 12 (e) Joint fiduciaries. If two or more fiduciaries are acting jointly, 13 the return may be made by any one of them. 14 (f) Cross reference. For provisions as to information returns by part- 15 nerships, employers and other persons, see section 11-1921 of this 16 subchapter. 17 § 11-1917 Time and place for filing returns and paying tax. A person 18 required to make and file a return under this chapter shall, without 19 assessment, notice or demand, pay any tax due thereon to the commission- 20 er on or before the date fixed for filing such return, determined with- 21 out regard to any extension of time for filing the return. The commis- 22 sioner shall prescribe by regulation the place for filing any return, 23 statement, or other document required pursuant to this chapter and for 24 payment of any tax. 25 § 11-1918 Signing of returns and other documents. (a) General. Any 26 return, statement or other document required to be made pursuant to this 27 chapter shall be signed in accordance with regulations or instructions 28 prescribed by the commissioner. The fact that an individual's name is 29 signed to a return, statement, or other document, shall be prima facie 30 evidence for all purposes that the return, statement or other document 31 was actually signed by such individual. 32 (b) Partnerships. Any return, statement or other document required of 33 a partnership shall be signed by one or more partners. The fact that a 34 partner's name is signed to a return, statement, or other document, 35 shall be prima facie evidence for all purposes that such partner is 36 authorized to sign on behalf of the partnership. 37 (c) Certifications. The making or filing of any return, statement or 38 other document or copy thereof required to be made or filed pursuant to 39 this chapter, including a copy of a federal return, shall constitute a 40 certification by the person making or filing such return, statement or 41 other document or copy thereof that the statements contained therein are 42 true and that any copy filed is a true copy. 43 § 11-1919 Change of residence status during year. (a) General. If an 44 individual changes his or her status during his or her taxable year from 45 resident to nonresident, or from nonresident to resident, he or she 46 shall file a return as a nonresident for the portion of the year during 47 which he or she is a nonresident if he or she is subject to the tax 48 imposed by this chapter or, if not subject to such tax, an information 49 return for the portion of the year during which he or she is a nonresi- 50 dent, subject to such exceptions as the commissioner may prescribe by 51 regulation. Such information return shall be due at the same time as 52 the return required by chapter seventeen of this title for the portion 53 of the year during which such individual is a resident. 54 (b) City taxable wages and net earnings from self-employment for 55 portion of year individual is a nonresident. The city taxable wages and 56 net earnings from self-employment for the portion of the year duringS. 8474 999 1 which he or she is a nonresident shall be determined, except as provided 2 in subdivision (c) of this section, under this chapter as if his or her 3 taxable year for federal income tax purposes were limited to the period 4 of his or her nonresident status. 5 (c) Special accruals. (1) If an individual changes his or her status 6 from resident to nonresident, he or she shall, regardless of his or her 7 method of accounting, accrue for the portion of the taxable year prior 8 to such change of status any items of income, gain, loss or deduction 9 accruing prior to the change of status, if not otherwise properly inclu- 10 dible, whether or not because of an election to report on an installment 11 basis, or allowable for city earnings tax purposes for such portion of 12 the taxable year for a prior taxable year. The amounts of such accrued 13 items shall be determined as if such accrued items were includible or 14 allowable for federal self-employment tax purposes. 15 (2) If an individual changes his or her status from nonresident to 16 resident, he or she shall, regardless of his or her method of account- 17 ing, accrue for the portion of the taxable year prior to such change of 18 status any items of income, gain, loss or deduction accruing prior to 19 the change of status, if not otherwise properly includible, whether or 20 not because of an election to report on an installment basis, or allow- 21 able for federal self-employment tax purposes for such portion of the 22 taxable year or for prior taxable year. The amounts of such accrued 23 items shall be determined if such accrued items were includible or 24 allowable for federal self-employment tax purposes. 25 (3) No item of income, gain, loss or deduction which is accrued under 26 this subdivision shall be taken into account in determining city 27 adjusted wages earned, or net earnings from self-employment, within the 28 city, for any subsequent taxable period. 29 (4) Where an individual changes his or her status from resident to 30 nonresident, the accruals under this subdivision shall not be required 31 if the individual files with the commissioner a bond or other security 32 acceptable to the commissioner, conditioned upon the inclusion of 33 amounts accruable under this subdivision in city adjusted gross income 34 under chapter seventeen of this title for one or more subsequent taxable 35 years as if the individual has not changed his or her resident status. 36 In such event, the tax under this chapter shall not apply to such 37 amounts. 38 (d) Prorations. Where an individual changes his or her status during 39 his or her taxable year from resident to nonresident or from nonresident 40 to resident, the exclusion allowable under subdivision (b) of section 41 11-1902 of this chapter shall be prorated, under regulations of the 42 commissioner, to reflect the portions of the entire taxable year during 43 which the individual was a resident and a nonresident. 44 § 11-1920 Extension of time. (a) General. The commissioner may grant a 45 reasonable extension of time for payment of tax or estimated tax, or any 46 installment, or for filing any return, statement, or other document 47 required pursuant to this chapter, on such terms and conditions as he or 48 she may require. Except for a taxpayer who is outside the United States 49 or who intends to claim nonresident status pursuant to subparagraphs 50 (i), (ii) and (iii) of paragraph one of subdivision (h) of section 51 11-1901 of this chapter, no such extension for filing any return, state- 52 ment or other document, shall exceed six months. 53 (b) Furnishing of security. If any extension of time is granted for 54 payment of any amount of tax, the commissioner may require the taxpayer 55 to furnish a bond or other security in an amount not exceeding twice theS. 8474 1000 1 amount for which the extension of time for payment is granted, on such 2 terms and conditions as the commissioner may require. 3 § 11-1921 Requirements concerning returns, notices, records and state- 4 ments. (a) General. The commissioner may prescribe regulations as to the 5 keeping of records, the content and form of returns and statements, and 6 the filing of copies of federal income tax returns and determinations. 7 The commissioner may require any person, by regulation or notice served 8 upon such person, to make such returns, render such statements, or keep 9 such records, as the commissioner may deem sufficient to show whether or 10 not such person is liable under this chapter for tax or for collection 11 of tax. 12 (b) Partnerships. Every partnership doing business in the city and 13 having no partners who are residents shall make a return for the taxable 14 year setting forth all items of income, gain, loss and deduction and 15 such other pertinent information as the commissioner may by regulations 16 and instructions prescribe. Such return shall be filed on or before the 17 fifteenth day of the fourth month following the close of each taxable 18 year. For purposes of this subdivision, "taxable year" means year or 19 period which would be a taxable year of the partnership if it were 20 subject to tax under this chapter. 21 (c) Information at source. The commissioner may prescribe regulations 22 and instructions requiring returns of information to be made and filed 23 on or before February twenty-eighth of each year as to the payment or 24 crediting in any calendar year of amounts of six hundred dollars or more 25 to any taxpayer under this chapter. Such returns may be required of any 26 person, including lessees or mortgagors of real or personal property, 27 fiduciaries, employers, and all officers and employees of this state, or 28 any municipal corporation or political subdivision of this state, having 29 the control, receipt, custody, disposal or payment of interest, rents, 30 salaries, wages, premiums, annuities, compensations, remunerations, 31 emoluments or other fixed or determinable gains, profits or income, 32 except interest coupons payable to bearer. A duplicate of the statement 33 as to tax withheld on wages, required to be furnished by an employer to 34 an employee, shall constitute the return of information required to be 35 made under this section with respect to such wages. 36 (d) Notice of qualification as receiver, etc. Every receiver, trustee 37 in bankruptcy, assignee for benefit of creditors, or other like fiduci- 38 ary shall give notice of his or her qualifications as such to the 39 commissioner, as may be required by regulation. 40 § 11-1922 Report of change in federal or New York state taxable 41 income. If the amount of a taxpayer's federal or New York state taxable 42 income or self-employment income reported on his or her federal or New 43 York state tax return for any taxable year is changed or corrected by 44 the United States internal revenue service or the New York state commis- 45 sioner of taxation and finance or other competent authority, or as the 46 result of a renegotiation of a contract or subcontract with the United 47 States or New York state or if a taxpayer, pursuant to subsection (d) of 48 section six thousand two hundred thirteen of the internal revenue code, 49 executes a notice of waiver of the restrictions provided in subsection 50 (a) of said section or if a taxpayer, pursuant to subdivision (f) of 51 section six hundred eighty-one of the tax law executes a notice of waiv- 52 er of the restrictions provided in subdivision (c) of said section, or 53 if any tax on self-employment income in addition to that shown on his or 54 her return is assessed, the taxpayer shall report such change or 55 correction in federal or New York state taxable income or such execution 56 of such notice of waiver or such assessment and the changes orS. 8474 1001 1 corrections of his or her federal or New York state taxable income or 2 self-employment income on which it is based, within ninety days after 3 the final determination of such change, correction, or renegotiation, or 4 such execution of such notice of waiver or the making of such assessment 5 as otherwise required by the commissioner, and shall concede the accura- 6 cy of such determination or state wherein it is erroneous. Any taxpayer 7 filing an amended federal or New York state income or self-employment 8 income tax return shall also file within ninety days thereafter an 9 amended return under this chapter, and shall give such information as 10 the commissioner may require. The commissioner may by regulation 11 prescribe such exceptions to the requirements of this section as he or 12 she deems appropriate. For purposes of this section, (i) the term 13 "taxpayer" shall include a partnership having any income derived from 14 city sources, and (ii) the term "federal income tax return" shall 15 include the returns of income required under section six thousand thir- 16 ty-one of the internal revenue code. Reports made under this section by 17 a partnership shall indicate the portion of the change in each item of 18 income, gain, loss or deduction allocable to each partner and shall set 19 forth such identifying information with respect to such partner as may 20 be prescribed by the commissioner. 21 SUBCHAPTER 3 22 PROCEDURE AND ADMINISTRATION 23 § 11-1923 Notice of deficiency. (a) General. If upon examination of a 24 taxpayer's return under this chapter the commissioner determines that 25 there is a deficiency of tax, he or she may mail a notice of deficiency 26 to the taxpayer. If a taxpayer fails to file a return required under 27 this chapter, the commissioner is authorized to estimate the taxpayer's 28 wages and net earnings from self-employment or the wages from which 29 taxes are required to be deducted and withheld and the tax thereon, from 30 any information in the commissioner's possession, and to mail a notice 31 of deficiency to the taxpayer. A notice of deficiency shall be mailed 32 by certified or registered mail to the taxpayer at such taxpayer's last 33 known address in or out of the city. If the taxpayer is deceased or 34 under a legal disability, a notice of deficiency may be mailed to his or 35 her last known address in or out of the city, unless the commissioner 36 has received notice of the existence of a fiduciary relationship with 37 respect to the taxpayer. 38 (b) Notice of deficiency as assessment. The notice of deficiency shall 39 be an assessment of the amount of tax specified in such notice, together 40 with the interest, additions to tax and penalties stated in such notice. 41 (c) Restrictions on collection and levy. No notice and demand for 42 payment of an assessment of a deficiency in tax made by a notice of 43 deficiency and no levy or proceeding in court for its collection shall 44 be made, begun or prosecuted, except as otherwise provided in section 45 11-1937 of this subchapter, until the expiration of the time for filing 46 a petition contesting such notice, nor, if a petition with respect to 47 the taxable year has been filed with the commissioner, until the deci- 48 sion of the commissioner has become final. After a petition has been 49 filed the restriction provided herein shall not apply to such part of 50 the deficiency as is not contested by the petition. For exception in 51 the case of judicial review of the decision of the commissioner, see 52 subdivision (c) of section 11-1932 of this subchapter. 53 (d) Exceptions for mathematical errors. If a mathematical error 54 appears on a return, including an overstatement of the credit for taxS. 8474 1002 1 withheld at the source or of the amount paid as estimated tax, the 2 commissioner shall notify the taxpayer that an amount of tax in excess 3 of that shown upon the return is due, and that such excess has been 4 assessed. Such notice shall not be considered as a notice of deficiency 5 for the purposes of this section, subdivision (f) of section 11-1929 of 6 this subchapter, limiting credits or refunds after petition to the 7 commissioner, or subdivision (b) of section 11-1931 of this subchapter, 8 authorizing the filing of a petition with the commissioner based on a 9 notice of deficiency, nor shall collection of such assessment be prohib- 10 ited by the provisions of subdivision (c) of this section. 11 (e) Exception where change in federal or New York state taxable income 12 is not reported (1) If the taxpayer fails to comply with section 11-1922 13 of this chapter in not reporting a change or correction increasing his 14 or her federal or New York state taxable income or self-employment 15 income as reported on such taxpayer's federal or New York state tax 16 return or in not reporting a change or correction which is treated in 17 the same manner as if it were a deficiency for federal or New York state 18 tax purposes or in not filing an amended return or in not reporting the 19 execution of a notice of waiver or an assessment described in such 20 section, instead of the mode and time of assessment and collection 21 provided for in subdivision (b) of this section, the commissioner may 22 assess a deficiency based upon such changed or corrected federal or New 23 York state taxable income or self-employment income by mailing to the 24 taxpayer a notice of additional tax due specifying the amount of the 25 deficiency, and such deficiency, together with the interest, additions 26 to tax and penalties stated in such notice, shall be deemed assessed and 27 subject to collection procedures on the date such notice is mailed 28 unless within thirty days after the mailing of such notice a report of 29 the federal or New York state change or correction or an amended return, 30 where such return was required by section 11-1922 of this chapter is 31 filed accompanied by a statement showing wherein such federal or New 32 York state determination of such notice of additional tax due are erro- 33 neous. 34 (2) Such notice shall not be considered as a notice of deficiency for 35 the purposes of this section, subdivision (f) of section 11-1929 of this 36 subchapter, limiting credits or refunds after petition to the commis- 37 sioner, or subdivision (b) of section 11-1931 of this subchapter, 38 authorizing the filing of a petition with the commissioner based on a 39 notice of deficiency, nor shall the collection of such assessment be 40 prohibited by the provisions of subdivision (c) of this section. 41 If the taxpayer is deceased or under a legal disability, a notice of 42 additional tax due may be mailed to his or her last known address in or 43 out of the city, unless the commissioner has received notice of the 44 existence of a fiduciary relationship with respect to the taxpayer. 45 (f) Waiver of restrictions. The taxpayer shall at any time have the 46 right to waive the mailing of a notice of deficiency or restriction on 47 collection of the whole or any part of the deficiency, or both, by a 48 signed notice in writing filed with the commissioner. 49 (g) Deficiency defined. For purposes of this chapter, a deficiency 50 means the amount of the tax imposed by this chapter, less (1) the amount 51 shown as the tax upon the taxpayer's return, whether the return was made 52 or the tax computed by the taxpayer or by the commissioner, and less, 53 (2) the amounts previously assessed, or collected without assessment, as 54 a deficiency and plus (3) the amount of any rebates. For the purpose of 55 this definition, the tax imposed by this chapter and the tax shown on 56 the return shall both be determined without regard to payments onS. 8474 1003 1 account of estimated tax or the credit for withholding tax; and a rebate 2 means so much of an abatement, refund or other repayment, whether or not 3 erroneous, made on the ground that the amounts entering into the defi- 4 nition of a deficiency showed a balance in favor of the taxpayer. 5 § 11-1924 Assessment. (a) Assessment date. The amount of tax which a 6 return shows to be due, or the amount of tax which a return would have 7 shown to be due but for a mathematical error, shall be deemed to be 8 assessed on the date of filing of the return, including any amended 9 return showing an increase of tax. In the case of a return properly 10 filed without computation of tax, the tax computed by the commissioner 11 shall be deemed to be assessed on the date on which payment is due. If 12 a notice of deficiency has been mailed, the amount of the deficiency 13 shall be deemed to be assessed on the date on which it is mailed. If an 14 amended return or report filed pursuant to section 11-1922 of this chap- 15 ter concedes the accuracy of a federal or New York state adjustment, 16 change or correction, any deficiency in tax under this chapter resulting 17 therefrom shall be deemed to be assessed on the date of filing such 18 report or amended return, and such assessment shall be timely notwith- 19 standing section 11-1925 of this subchapter. If a notice of additional 20 tax due, as prescribed in subdivision (e) of section 11-1923 of this 21 subchapter, has been mailed, the amount of the deficiency shall be 22 deemed to be assessed on the date specified in such subdivision unless 23 within thirty days after the mailing of such notice a report of the 24 federal or New York state change or correction or an amended return, 25 where such return was required by section 11-1922 of this chapter, is 26 filed accompanied by a statement showing wherein such federal or New 27 York state determination and such notice of additional tax due are erro- 28 neous. Any amount paid as a tax or in respect of a tax, other than 29 amounts withheld at the source or paid as estimated income tax, shall be 30 deemed to be assessed upon the date of receipt of payment, notwithstand- 31 ing any other provisions. 32 (b) Other assessment powers. If the mode or time for the assessment 33 of any tax under this chapter, including interest, additions to tax and 34 assessable penalties, is not otherwise provided for, the commissioner 35 may establish the same by regulations. 36 (d) Supplemental assessment. The commissioner may, at any time within 37 the period prescribed for assessment, make a supplemental assessment, 38 subject to the provisions of section 11-1923 of this subchapter where 39 applicable, whenever it is ascertained that any assessment is imperfect 40 or incomplete in any material respect. 41 (e) Cross reference. For assessment in case of jeopardy, see section 42 11-1937 of this subchapter. 43 § 11-1925 Limitations on assessment. (a) General. Except as otherwise 44 provided in this section, any tax under this chapter shall be assessed 45 within three years after the return was filed, whether or not such 46 return was filed on or after the date prescribed. 47 (b) Exceptions. (1) Assessment at any time. The tax may be assessed at 48 any time if: 49 (A) no return is filed, 50 (B) a false or fraudulent return is filed with intent to evade tax, or 51 (C) the taxpayer fails to comply with section 11-1922 of this chapter 52 in not reporting a change or correction increasing his or her federal or 53 New York state taxable income or self-employment income as reported on 54 the taxpayer's federal or New York state tax return, or the execution of 55 a notice of waiver and the changes or corrections on which it is based 56 or in not reporting an assessment or a change or correction which isS. 8474 1004 1 treated in the same manner as if it were a deficiency for federal or New 2 York state income tax purposes, or in not filing an amended return. 3 (2) Extension by agreement. Where, before the expiration of the time 4 prescribed in this section for the assessment of tax, both the commis- 5 sioner and the taxpayer have consented in writing to its assessment 6 after such time, the tax may be assessed at any time prior to the expi- 7 ration of the period agreed upon. The period so agreed upon may be 8 extended by subsequent agreements in writing made before the expiration 9 of the period previously agreed upon. 10 (3) Report of changed or corrected federal or New York state income. 11 If the taxpayer shall, pursuant to section 11-1922 of this chapter, 12 report a change or correction or file an amended return increasing the 13 taxpayer's federal or New York state taxable income or earnings from 14 self-employment or report an assessment or a change or correction which 15 is treated in the same manner as if it were a deficiency for federal or 16 New York state income tax purposes, the assessment, if not deemed to 17 have been made upon the filing of the report or amended return, may be 18 made at any time within two years after such report or amended return 19 was filed. The amount of such assessment of tax shall not exceed the 20 amount of the increase in city tax on earnings attributable to such 21 federal or New York state change or correction. The provisions of this 22 paragraph shall not affect the time within which or the amount for which 23 an assessment may otherwise be made. 24 (4) Recovery of erroneous refund. An erroneous refund shall be consid- 25 ered an underpayment of tax on the date made, and an assessment of a 26 deficiency arising out of an erroneous refund may be made at any time 27 within two years from the making of the refund, except that the assess- 28 ment may be made within five years from the making of the refund if it 29 appears that any part of the refund was induced by fraud or misrepresen- 30 tation of a material fact. 31 (5) Request for prompt assessment. If a return is required for a dece- 32 dent or for the decedent's estate during the period of administration, 33 the tax shall be assessed within eighteen months after written request 34 therefor, made after the return is filed, by the executor, administrator 35 or other person representing the estate of such decedent, but not more 36 than three years after the return was filed, except as otherwise 37 provided in this subdivision and subdivision (c) of this section. 38 (c) Omission of income on return. The tax may be assessed at any time 39 within six years after the return was filed if a taxpayer omits from a 40 return an amount properly includible therein which is in excess of twen- 41 ty-five per centum of the amount of the gross income derived by the 42 taxpayer from any trade or business. 43 For purposes of this subdivision there shall not be taken into account 44 any amount which is omitted in the return if such amount is disclosed in 45 the return, or in a statement attached to the return, in a manner 46 adequate to apprise the commissioner of the nature and amount of such 47 item. 48 (d) Suspension of running of period of limitation. The running of the 49 period of limitations on or collection of tax or other amount, or of a 50 transferee's liability, shall, after the mailing of a notice of defi- 51 ciency, be suspended for the period during which the commissioner is 52 prohibited under subdivision (c) of section 11-1923 of this subchapter 53 collecting by levy or proceeding in court. 54 § 11-1926 Interest on underpayment. (a) General. If any amount of tax 55 is not paid on or before the last date prescribed in this chapter for 56 payment, interest on such amount at the appropriate rates prescribed forS. 8474 1005 1 underpayments of tax under chapter seventeen of this title shall be paid 2 for the period from such last date to the date paid, whether or not any 3 extension of time for payment was granted. Interest under this subdivi- 4 sion shall not be paid if the amount thereof is less than one dollar. 5 If the time for filing a return of tax withheld by an employer is 6 extended, the employer shall pay interest for the period for which the 7 extension is granted and may not charge such interest to the employee. 8 (c) Exception for mathematical error. No interest shall be imposed on 9 any underpayment of tax due solely to mathematical error if the taxpayer 10 files a return within the time prescribed in this chapter, including any 11 extension of time, and pays the amount of underpayment within three 12 months after the due date of such return, as it may be extended. 13 (d) No interest on interest. No interest under this chapter shall be 14 imposed on any interest provided by this chapter. 15 (e) Suspension of interest on deficiencies. If a waiver of 16 restrictions on collection of an assessment of a deficiency has been 17 filed by the taxpayer, and if notice and demand by the commissioner for 18 payment of such assessed deficiency is not made within thirty days after 19 the filing of such waiver, interest shall not be imposed on such defi- 20 ciency for the period beginning immediately after such thirtieth day and 21 ending with the date of notice and demand. 22 (f) Interest treated as tax. Interest under this section shall be 23 paid upon notice and demand and shall be assessed, collected and paid in 24 the same manner as tax. Any reference in this chapter to the tax 25 imposed by this chapter shall be deemed also to refer to interest 26 imposed by this section on such tax. 27 (g) Interest on penalties or additions to tax. Interest shall be 28 imposed under subdivision (a) of this section in respect of any assess- 29 able penalty or addition to tax only if such assessable penalty or addi- 30 tion to tax is not paid within ten days from the date of the notice and 31 demand therefor under subdivision (b) of section 11-1934 of this 32 subchapter, and in such case interest shall be imposed only for the 33 period from such date of the notice and demand to the date of payment. 34 (h) Payment prior to notice of deficiency. If, prior to the mailing 35 to the taxpayer of a notice of deficiency under subdivision (b) of 36 section 11-1923 of this subchapter, the commissioner mails to the 37 taxpayer a notice of proposed increase of tax and within thirty days 38 after the date of the notice of proposed increase the taxpayer pays all 39 amounts shown on the notice to be due to the commissioner, no interest 40 under this section on the amount so paid shall be imposed for the period 41 after the date of such notice of proposed increase. 42 (i) Payment within ninety days after notice of deficiency. If a 43 notice of deficiency under section 11-1923 of this subchapter is mailed 44 to the taxpayer, and the total amount specified in such notice is paid 45 on or before the ninetieth day after the date of mailing, interest under 46 this section shall not be imposed for the period after the date of the 47 notice. 48 (j) Payment within ten days after notice and demand. If notice and 49 demand is made for payment of any amount under subdivision (b) of 50 section 11-1934 of this subchapter, and if such amount is paid within 51 ten days after the date of such notice and demand, interest under this 52 section on the amount so paid shall not be imposed for the period after 53 the date of such notice and demand. 54 (k) Limitation on assessment and collection. Interest prescribed 55 under this section may be assessed and collected at any time during theS. 8474 1006 1 period within which the tax or other amount to which such interest 2 relates may be assessed and collected, respectively. 3 (l) Interest on erroneous refund. Any portion of tax or other amount 4 which has been erroneously refunded, and which is recoverable by the 5 commissioner, shall bear interest at the rate of six per centum per 6 annum from the date of the payment of the refund, but only if it appears 7 that any part of the refund was induced by fraud or a misrepresentation 8 of a material fact. 9 (m) Satisfaction by credits. If any portion of a tax is satisfied by 10 credit of an overpayment, then no interest shall be imposed under this 11 section on the portion of the tax so satisfied for any period during 12 which, if the credit had not been made, interest would have been allow- 13 able with respect to such overpayment. 14 § 11-1927 Additions to tax and civil penalties. (a) Failure to file 15 tax return. In case of failure to file a tax return under this chapter 16 on or before the prescribed date, determined with regard to any exten- 17 sion of time for filing, unless it is shown that such failure is due to 18 reasonable cause and not due to willful neglect, there shall be added to 19 the amount required to be shown as tax on such return five percent of 20 the amount of such tax if the failure is for not more than one month, 21 with an additional five percent for each additional month or fraction 22 thereof during which such failure continues, not exceeding twenty-five 23 percent in the aggregate. For this purpose, the amount of tax required 24 to be shown on the return shall be reduced by the amount of any part of 25 the tax which is paid on or before the date prescribed for payment of 26 the tax and by the amount of any credit against the tax which may be 27 claimed upon the return. 28 (b) Deficiency due to negligence. If any part of a deficiency is due 29 to negligence or intentional disregard of this chapter or rules or regu- 30 lations hereunder, but without intent to defraud, there shall be added 31 to the tax an amount equal to five percent of the deficiency. 32 (c) Failure to file declaration or underpayment of estimated tax. If 33 any taxpayer fails to file a declaration of estimated tax or fails to 34 pay all or any part of an installment of estimated tax, the taxpayer 35 shall be deemed to have made an underpayment of estimated tax. There 36 shall be added to the tax for the taxable year an amount at the rate of 37 six per centum upon the amount of the underpayment for the period of the 38 underpayment but not beyond the fifteenth day of the fourth month 39 following the close of the taxable year. The amount of underpayment 40 shall be the excess of the amount of the installment which would be 41 required to be paid if the estimated tax were equal to seventy percent 42 of the tax attributable to net earnings from self employment shown on 43 the tax return for the taxable year, or if no return was filed, of the 44 tax so attributable for such year, over the amount, if any, of the 45 installment paid on or before the last day prescribed for such payment. 46 No underpayment shall be deemed to exist with respect to a declaration 47 or installment otherwise due on or after the taxpayer's death. 48 (d) Exception to addition for underpayment of estimated tax. The addi- 49 tion to tax under subdivision (c) of this section with respect to any 50 underpayment of any installment shall not be imposed if the total amount 51 of all payments of estimated tax made on or before the last date 52 prescribed for the payment of such installment equals or exceeds which- 53 ever of the following is the lesser: 54 (1) The amount which would have been required to be paid on or before 55 such date if the estimated tax were whichever of the following is the 56 lesser:S. 8474 1007 1 (A) The tax attributable to net earnings from self-employment shown on 2 the return of the individual for the preceding taxable year, if a return 3 showing a liability for tax was filed by the individual for the preced- 4 ing taxable year and such preceding year was a taxable year of twelve 5 months, or 6 (B) An amount equal to seventy percent of the tax so attributable for 7 the taxable year computed by placing on an annualized basis the taxable 8 net earnings from self-employment for the months in the taxable year 9 ending before the month in which the installment is required to be paid. 10 For purposes of this subparagraph, the taxable net earnings from self- 11 employment shall be placed on an annualized basis by: 12 (i) multiplying by twelve, or, in the case of a taxable year of less 13 than twelve months, the number of months in the taxable year, the taxa- 14 ble net earnings from self-employment for the months in the taxable year 15 ending before the month in which the installment is required to be 16 paid, 17 (ii) dividing the resulting amount by the number of months in the 18 taxable year ending before the month in which such installment date 19 falls, and 20 (iii) deducting from such amount the proper proportion of the exclu- 21 sion allowable for the taxable year by subdivision (b) of section 22 11-1902 of this chapter; or 23 (2) An amount equal to ninety percent of the tax computed, at the 24 rates applicable to the taxable year, on the basis of the actual taxable 25 net earnings from self-employment for the months in the taxable year 26 ending before the month in which the installment is required to be paid. 27 (e) Deficiency due to fraud. If any part of a deficiency is due to 28 fraud, there shall be added to the tax an amount equal to fifty percent 29 of the deficiency. This amount shall be in lieu of any other addition 30 to tax imposed by subdivision (a) or (b) of this section. 31 (f) Non-willful failure to pay withholding tax. If any employer, with- 32 out intent to evade or defeat any tax imposed by this chapter or the 33 payment thereof, shall fail to make a return and pay a tax withheld by 34 him or her at the time required by or under provisions of section 35 11-1912 of this chapter, such employer shall be liable for such tax and 36 shall pay the same together with interest thereon and the addition to 37 tax provided in subdivision (a) of this section, and such interest and 38 addition to tax shall not be charged to or collected from the employee 39 by the employer. The commissioner shall have the same rights and powers 40 for the collection of such tax, interest and addition to tax against 41 such employer as are now prescribed by this chapter for the collection 42 of tax against an individual taxpayer. 43 (g) Willful failure to collect and pay over tax. Any person required 44 to collect, truthfully account for, and pay over the tax imposed by this 45 chapter who willfully fails to collect such tax or truthfully account 46 for and pay over such tax or willfully attempts in any manner to evade 47 or defeat the tax or the payment thereof, shall, in addition to other 48 penalties provided by law, be liable to a penalty equal to the total 49 amount of the tax evaded, or not collected, or not accounted for and 50 paid over. No addition to tax under subdivision (b) or (e) of this 51 section shall be imposed for any offense to which this subdivision 52 applies. 53 (h) Failure to file certain information returns. In case of each fail- 54 ure to file a statement of a payment to another person, required under 55 authority of subdivision (c) of section 11-1921 of this chapter, relat- 56 ing to information at source, including the duplicate statement of taxS. 8474 1008 1 withheld on wages, on the date prescribed therefor, determined with 2 regard to any extension of time for filing, unless it is shown that such 3 failure is due to reasonable cause and not willful neglect, there shall, 4 upon notice and demand by the commissioner and in the same manner as 5 tax, be paid by the person so failing to file the statement, a penalty 6 of one dollar for each statement not so filed, but the total amount 7 imposed on the delinquent person for all such failures during any calen- 8 dar year shall not exceed one thousand dollars. 9 (i) Additional penalty. Any person who with fraudulent intent shall 10 fail to pay, or to deduct or withhold and pay, any tax, or to make, 11 render, sign or certify any return or declaration of estimated tax, or 12 to supply any information within the time required by or under this 13 chapter, shall be liable to a penalty of not more than one thousand 14 dollars, in addition to any other amounts required under this chapter, 15 to be imposed, assessed and collected by the commissioner. The commis- 16 sioner shall have the power, in his or her discretion, to waive, reduce 17 or compromise any penalty under this subdivision. 18 (j) Additions treated as tax. The additions to tax and penalties 19 provided by this section shall be paid upon notice and demand and shall 20 be assessed, collected and paid in the same manner as taxes, and any 21 reference in this chapter to tax or tax imposed by this chapter, shall 22 be deemed also to refer to the additions to tax and penalties provided 23 by this section. For purposes of section 11-1923 of this subchapter, 24 this subdivision shall not apply to: 25 (1) any addition to tax under subdivision (a) of this section except 26 as to that portion attributable to a deficiency; 27 (2) any addition to tax under subdivision (c) of this section; and 28 (3) any additional penalty under subdivision (i) of this section. 29 (k) Determination of deficiency. For purposes of subdivisions (b) and 30 (e) of this section, the amount shown as the tax by the taxpayer upon 31 his or her return shall be taken into account in determining the amount 32 of the deficiency only if such return was filed on or before the last 33 day prescribed for the filing of such return, determined with regard to 34 any extension of time for such filing. 35 (l) Person defined. For purposes of subdivisions (g) and (i) of this 36 section, the term "person" includes an individual, corporation or part- 37 nership or an officer or employee of any corporation, including a 38 dissolved corporation, or a member or employee of any partnership, who 39 as such officer, employee, or member is under a duty to perform the act 40 in respect of which the violation occurs. 41 § 11-1928 Overpayment. (a) General. The commissioner, within the 42 applicable period of limitations, may credit an overpayment of tax and 43 interest on such overpayment against any liability in respect of any tax 44 imposed by this chapter or by another chapter or chapters of this title 45 on the person who made the overpayment, and the balance shall be 46 refunded. Any refund under this section shall be made only upon the 47 filing of a return. 48 (b) Excessive withholding. If the amount allowable as a credit for tax 49 withheld from the taxpayer exceeds his or her tax to which the credit 50 relates, the excess shall be considered an overpayment. 51 (c) Overpayment by employer. If there has been an overpayment of tax 52 required to be deducted and withheld under section 11-1908 of this chap- 53 ter, refund shall be made to the employer only to the extent that the 54 amount of the overpayment was not deducted and withheld by the employer. 55 (d) Credits against estimated tax. The commissioner may prescribe 56 regulations providing for the crediting against the estimated tax forS. 8474 1009 1 any taxable year of the amount determined to be an overpayment of the 2 tax for a preceding taxable year. If any overpayment of tax is so 3 claimed as a credit against estimated tax for the succeeding taxable 4 year, such amount shall be considered as a payment of the tax for the 5 succeeding taxable year, whether or not claimed as a credit in the 6 declaration of estimated tax for such succeeding taxable year, and no 7 claim for credit or refund of such overpayment shall be allowed for the 8 taxable year for which the overpayment arises. 9 (e) Rule where no tax liability. If there is no tax liability for a 10 period in respect of which an amount is paid as tax, such amount shall 11 be considered an overpayment. 12 (f) Assessment and collection after limitation period. If any amount 13 of tax is assessed or collected after the expiration of the period of 14 limitations properly applicable thereto, such amount shall be considered 15 an overpayment. 16 (g) Notwithstanding any provision of law in article fifty-two of the 17 civil practice law and rules to the contrary, the procedures for the 18 enforcement of money judgments shall not apply to the department of 19 finance, or to any officer or employee of the department of finance, as 20 a garnishee, with respect to any amount of money to be refunded or cred- 21 ited to a taxpayer under this chapter. 22 § 11-1929 Limitations on credit or refund. (a) General. Claim for 23 credit or refund of an overpayment of tax shall be filed by the taxpayer 24 within three years from the time the return was filed or two years from 25 the time the tax was paid, whichever of such periods expires the later, 26 or if no return was filed, within two years from the time the tax was 27 paid. If the claim is filed within the three year period, the amount of 28 the credit or refund shall not exceed the portion of the tax paid within 29 the three years immediately preceding the filing of the claim plus the 30 period of any extension of time for filing the return. If the claim is 31 not filed within the three year period, but is filed within the two year 32 period, the amount of the credit or refund shall not exceed the portion 33 of the tax paid during the two years immediately preceding the filing of 34 the claim. Except as otherwise provided in this section, if no claim is 35 filed, the amount of a credit or refund shall not exceed the amount 36 which would be allowable if a claim had been filed on the date the cred- 37 it or refund is allowed. 38 (b) Extension of time by agreement. If an agreement under the 39 provisions of paragraph two of subdivision (b) of section 11-1925 of 40 this subchapter, extending the period for assessment of tax, is made 41 within the period prescribed in subdivision (a) of this section for the 42 filing of a claim for credit or refund, the period for filing a claim 43 for credit or refund, or for making credit or refund if no claim is 44 filed, shall not expire prior to six months after the expiration of the 45 period within which an assessment may be made pursuant to the agreement 46 or any extension thereof. The amount of such credit or refund shall not 47 exceed the portion of the tax paid after the execution of the agreement 48 and before the filing of the claim or the making of the credit or 49 refund, as the case may be, plus the portion of the tax paid within the 50 period which would be applicable under subdivision (a) of this section 51 if a claim had been filed on the date the agreement was executed. 52 (c) Notice of change or correction of federal or New York state 53 income. If a taxpayer is required by section 11-1922 of this chapter to 54 report a change or correction in federal or New York state taxable 55 income or self-employment income reported on his or her federal or New 56 York state tax return, or to report an assessment or a change orS. 8474 1010 1 correction which is treated in the same manner as if it were an overpay- 2 ment for federal or New York state income tax purposes, or to file an 3 amended return with the commissioner, claim for credit or refund of any 4 resulting overpayment of tax shall be filed by the taxpayer within two 5 years from the time the notice of such change or correction or such 6 amended return was required to be filed with the commissioner. If the 7 report or amended return required by section 11-1922 of this chapter is 8 not filed within the ninety day period therein specified, interest on 9 any resulting refund or credit shall cease to accrue after such nineti- 10 eth day. The amount of such credit or refund shall not exceed the 11 amount of the reduction in tax attributable to such federal or New York 12 state change, correction or items amended on the taxpayer's amended 13 federal or New York state income tax or self-employment tax return. 14 This subdivision shall not affect the time within which or the amount 15 for which a claim for credit or refund may be filed apart from this 16 subdivision. 17 (d) Failure to file claim within prescribed period. No credit or 18 refund shall be allowed or made, except as provided in subdivision (e) 19 of this section or subdivision (d) of section 11-1932 of this subchapter 20 after the expiration of the applicable period of limitation specified in 21 this chapter unless a claim for credit or refund is filed by the taxpay- 22 er within such period. Any later credit shall be void and any later 23 refund erroneous. No period of limitations specified in any other law 24 shall apply to the recovery by a taxpayer of moneys paid in respect of 25 taxes under this chapter. 26 (e) Effect of petition to commissioner. If a notice of deficiency for 27 a taxable year has been mailed to the taxpayer under section 11-1923 of 28 this subchapter and if the taxpayer files a timely petition with the 29 commissioner under section 11-1931 of this subchapter, the commissioner 30 may determine that the taxpayer has made an overpayment for such year, 31 whether or not the commissioner also determines a deficiency for such 32 year. No separate claim for credit or refund for such year shall be 33 filed, and no credit or refund for such year shall be allowed or made, 34 except: 35 (1) as to overpayments determined by a decision of the commissioner 36 which has become final; 37 (2) as to any amount collected in excess of an amount computed in 38 accordance with the decision of the commissioner which has become final; 39 (3) as to any amount collected after the period of limitation upon the 40 making of levy for collection has expired; and 41 (4) as to any amount claimed as a result of a change or correction 42 described in subdivision (c) of this section. 43 (f) Limit on amount of credit or refund. The amount of overpayment 44 determined under subdivision (e) of this section shall, when the deci- 45 sion of the commissioner has become final, be credited or refunded in 46 accordance with subdivision (a) of section 11-1928 of this subchapter 47 and shall not exceed the amount of tax which the commissioner determines 48 as part of his or her decision was paid: 49 (1) after the mailing of the notice of deficiency, or 50 (2) within the period which would be applicable under subdivision (a), 51 (b) or (c) of this section, if on the date of the mailing of the notice 52 of deficiency a claim has been filed, whether or not filed, stating the 53 grounds upon which the commissioner finds that there is an overpayment. 54 (g) Early return. For purposes of this section, any return filed 55 before the last day prescribed for the filing thereof shall be consid-S. 8474 1011 1 ered as filed on such last day, determined without regard to any exten- 2 sion of time granted the taxpayer. 3 (h) Prepaid tax. For purposes of this section, any tax paid by the 4 taxpayer before the last day prescribed for its payment, any tax with- 5 held from the taxpayer during any calendar year, and any amount paid by 6 the taxpayer as estimated tax for a taxable year shall be deemed to have 7 been paid by the taxpayer on the fifteenth day of the fourth month 8 following the close of his or her taxable year with respect to which 9 such amount constitutes a credit or payment. 10 (i) Return and payment of withholding tax. Notwithstanding subdivision 11 (g) of this section, for purposes of this section with respect to any 12 withholding tax: 13 (1) if a return for any period ending with or within a calendar year 14 is filed before April fifteenth of the succeeding calendar year, such 15 return shall be considered filed on April fifteenth of such succeeding 16 calendar year; and 17 (2) if a tax with respect to remuneration paid during any period 18 ending with or within a calendar year is paid before April fifteenth of 19 the succeeding calendar year, such tax shall be considered paid on April 20 fifteenth of such succeeding calendar year. 21 (j) Cross reference. For provision barring refund of overpayment cred- 22 ited against tax of a succeeding year, see subdivision (d) of section 23 11-1928 of this subchapter. 24 § 11-1930 Interest on overpayment. (a) General. Notwithstanding the 25 provisions of section three-a of the general municipal law, interest 26 shall be allowed and paid as follows at the appropriate rates prescribed 27 for overpayments of tax under chapter seventeen of this title upon any 28 overpayment in respect of the tax imposed by this chapter: 29 (1) from the date of the overpayment to the due date of an amount 30 against which a credit is taken; or 31 (2) from the date of the overpayment to a date, to be determined by 32 the commissioner, preceding the date of a refund check by not more than 33 thirty days, whether or not such refund check is accepted by the taxpay- 34 er after tender of such check to the taxpayer. The acceptance of such 35 check shall be without prejudice to any right of the taxpayer to claim 36 any additional overpayment and interest thereon. 37 No interest shall be allowed or paid if the amount thereof is less 38 than one dollar. 39 (b) Advance payment of tax, payment of estimated tax, and credit for 40 tax withholding. The provisions of subdivisions (g), (h) and (i) of 41 section 11-1929 of this subchapter applicable in determining the date of 42 payment of tax for purposes of determining the period of limitations on 43 credit or refund, shall be applicable in determining the date of payment 44 for purposes of this section. 45 (c) Refund within three months of due date of tax. If any overpayment 46 of tax imposed by this chapter is refunded within three months after the 47 last date prescribed, or permitted by extension of time, for filing the 48 return of such tax or within three months after the return was filed, 49 whichever is later, no interest shall be allowed under this section on 50 such overpayment. 51 (d) Cross-reference. For provision terminating interest after failure 52 to file notice of federal or New York state change under section 11-1922 53 of this chapter, see subdivision (c) of 11-1929 of this subchapter. 54 § 11-1931 Petition to commissioner. (a) General. The form of a peti- 55 tion to the commissioner, and further proceedings before the commission- 56 er in any case initiated by the filing of a petition, shall be governedS. 8474 1012 1 by such rules as the commissioner shall prescribe. No petition shall be 2 denied in whole or in part without opportunity for a hearing on reason- 3 able prior notice. Such hearing shall be conducted by the commissioner, 4 or by a hearing officer designated by the commissioner to take evidence 5 and report to the commissioner. The commissioner shall decide the case 6 as quickly as practicable. Notice of the decision shall be mailed 7 promptly to the taxpayer by certified or registered mail at his or her 8 last known address and such notice shall set forth the commissioner's 9 findings of fact and a brief statement of the grounds of decision in 10 each case decided in whole or in part adversely to the taxpayer. Any 11 portion of an assessment of a deficiency disallowed by the commission- 12 er's decision, shall be forthwith abated, or if paid, credited or 13 refunded to the taxpayer without the making of a claim therefor. 14 (b) Petition for redetermination of a deficiency. Within ninety days, 15 or one hundred fifty days if the notice is addressed to a person outside 16 of the United States, after the mailing of the notice of deficiency 17 authorized by section 11-1923 of this subchapter, the taxpayer may file 18 a petition with the commissioner for a redetermination of the deficien- 19 cy. Such petition may also assert a claim for refund for the same taxa- 20 ble year or years, subject to the limitations of subdivision (f) of 21 section 11-1929 of this subchapter. 22 (c) Petition for refund. A taxpayer may file a petition with the 23 commissioner for the amounts asserted in a claim for refund if: 24 (1) the taxpayer has filed a timely claim for refund with the commis- 25 sioner, 26 (2) the taxpayer has not previously filed with the commissioner a 27 timely petition under subdivision (b) of this section for the same 28 taxable year unless the petition under this subdivision relates to a 29 separate claim for credit or refund properly filed under subdivision (e) 30 of section 11-1929 of this subchapter, and 31 (3) either: (A) six months have expired since the claim was filed, or 32 (B) the commissioner has mailed to the taxpayer, by registered or certi- 33 fied mail, a notice of disallowance of such claim in whole or in part. 34 No petition under this subdivision shall be filed more than two years 35 after the date of mailing of a notice of disallowance, unless prior to 36 the expiration of such a two-year period it has been extended by writ- 37 ten agreement between the taxpayer and the commissioner. If a taxpayer 38 files a written waiver of the requirement that he or she be mailed a 39 notice of disallowance, the two year period prescribed by this subdivi- 40 sion for filing a petition for refund shall begin on the date such waiv- 41 er is filed. 42 (d) Assertion and assessment of deficiency after filing petition. 43 (1) Petition for redetermination of deficiency. If a taxpayer files 44 with the commissioner a petition for redetermination of a deficiency, 45 the commissioner shall have power to determine and assess a greater 46 deficiency than asserted in the notice of deficiency and to determine 47 and assess any addition to tax or penalty provided in section 11-1927 of 48 this subchapter, if claim therefor is asserted at or before the hearing 49 and within the period in which an assessment would be timely under 50 section 11-1925 of this subchapter under the rules of the commissioner. 51 (2) Petition for refund. If the taxpayer files with the commissioner a 52 petition for credit or refund for a taxable year, the commissioner may: 53 (A) determine and assess a deficiency for such year as to any amount 54 of deficiency claim, which shall be an assessment, for which is asserted 55 at or before the hearing under rules of the commissioner, and within theS. 8474 1013 1 period in which an assessment would be timely under section 11-1925 of 2 this subchapter, or 3 (B) deny so much of the amount for which credit or refund is sought in 4 the petition, as is offset by other issues pertaining to the same taxa- 5 ble year which are asserted at or before the hearing under rules of the 6 commissioner. 7 (3) Opportunity to respond. A taxpayer shall be given a reasonable 8 opportunity to respond to any matters asserted by the commissioner under 9 this subdivision. 10 (4) Restriction on further notices of deficiency. If the taxpayer 11 files a petition with the commissioner under this section, no notice of 12 deficiency under section 11-1923 of this subchapter may thereafter be 13 issued by the commissioner for the same taxable year, except in case of 14 fraud or with respect to a change or correction in federal or New York 15 state taxable income or self-employment income required to be reported 16 under section 11-1922 of this chapter. 17 (e) Burden of proof. In any case before the commissioner under this 18 chapter, the burden of proof shall be upon the petitioner except for the 19 following issues, as to which the burden of proof shall be upon the 20 commissioner: 21 (1) whether the petitioner has been guilty of fraud with intent to 22 evade tax; 23 (2) whether the petitioner is liable as the transferee of property of 24 a taxpayer, except where the petitioner's liability arises by reason of 25 section 11-1936 of this subchapter, but not to show that the taxpayer 26 was liable for the tax; and 27 (3) whether the petitioner is liable for any increase in a deficiency 28 where such increase is asserted initially after a notice of deficiency 29 was mailed and a petition under this section filed, unless such increase 30 in deficiency is the result of a change or correction of federal or New 31 York state taxable income or self-employment income required to be 32 reported under section 11-1922 of this chapter, and of which change or 33 correction the commissioner had no notice at the time he or she mailed 34 the notice of deficiency. 35 (f) Evidence of related federal determination. Evidence of a federal 36 determination relating to issues raised in a case before the commission- 37 er under this section shall be admissible, under rules established by 38 the commissioner. 39 (g) Jurisdiction over other years. The commissioner shall consider 40 such facts with relation to the taxes for other years as may be neces- 41 sary correctly to determine the tax for the taxable year, but in so 42 doing shall have no jurisdiction to determine whether or not the tax for 43 any other year has been overpaid or underpaid. 44 § 11-1932 Review of commissioner's decision. (a) General. A decision 45 of the commissioner shall be subject to judicial review for error, ille- 46 gality or unconstitutionality at the instance of any taxpayer affected 47 thereby in the manner provided by law for the review of a final decision 48 or action of administrative agencies of the city. An application by a 49 taxpayer for such review must be made within four months after notice of 50 the decision is sent by certified or registered mail to the taxpayer. 51 (b) Judicial review exclusive remedy of taxpayer. The review of a 52 decision of the commissioner provided by this section shall be exclusive 53 remedy available to any taxpayer for the judicial determination of the 54 liability of the taxpayer for the taxes imposed by this chapter. 55 (c) Collection pending review; review bond. Irrespective of any 56 restrictions on the collection of assessments for deficiencies, theS. 8474 1014 1 commissioner may collect by levy or, otherwise any assessment of a defi- 2 ciency after the expiration of the period specified in subdivision (a) 3 of this section, notwithstanding that an application for judicial review 4 in respect of such deficiency has been duly made by the taxpayer, unless 5 the taxpayer, at or before the time his or her application for review is 6 made, has paid the assessed deficiency, has deposited with the commis- 7 sioner the amount of the assessed deficiency, or has filed with the 8 commissioner a bond, which may be a jeopardy bond under subdivision (h) 9 of section 11-1937 of this subchapter, in the amount of the portion of 10 the assessed deficiency, including interest and other amounts, in 11 respect of which the application for review is made with surety approved 12 by a justice of the supreme court of the state of New York, conditioned 13 upon the payment of the assessed deficiency, including interest and 14 other amounts, as finally determined. If as a result of a waiver of the 15 restrictions on the collection of a deficiency any part of the amount 16 determined by the commissioner is paid after the filing of the review 17 bond, such bond shall, at the request of the taxpayer, be proportionate- 18 ly reduced. A similar bond for all costs and charges which may accrue 19 against the taxpayer in the prosecution of such judicial review proceed- 20 ing must be filed with the commissioner before any such proceeding is 21 instituted. 22 (d) Credit, refund or abatement after review. If the amount of a defi- 23 ciency assessed and determined by the commissioner is disallowed in 24 whole or in part by the court of review, the amount so disallowed shall 25 be credited or refunded to the taxpayer, without the making of claim 26 therefor, or, if payment has not been made, shall be abated. 27 (e) Date of finality of commissioner's decision. A decision of the 28 commissioner shall become final upon the expiration of the period speci- 29 fied in subdivision (a) of this section for making an application for 30 review, if no such application has been duly made within such time, or 31 if such application has been duly made, upon expiration of the time for 32 all further judicial review, or upon the rendering by the commissioner 33 of a decision in accordance with the mandate of the court on review. 34 Provided, however, for the purpose of making an application for review, 35 the decision of the commissioner shall be deemed final on the date the 36 notice of decision is sent by certified or registered mail to the 37 taxpayer. 38 § 11-1933 Mailing rules; holidays. (a) Timely mailing. If any claim, 39 statement, notice, petition, or other document, including to the extent 40 authorized by the commissioner, a return or declaration of estimated 41 tax, required to be filed within a prescribed period or on or before a 42 prescribed date under authority of any provision of this chapter is, 43 after such period or such date, delivered by the United States mail to 44 the commissioner, bureau, office, officer or person with which or with 45 whom such document is required to be filed, the date of the United 46 States postmark stamped on the envelope shall be deemed to be the date 47 of delivery. This subdivision shall apply only if the postmark date 48 falls within the prescribed period or on or before the prescribed date 49 for the filing of such document, determined with regard to any extension 50 granted for such filing, and only if such document was deposited in the 51 mail, postage prepaid, properly addressed to the commissioner, bureau, 52 office, officer or person with which or with whom the document is 53 required to be filed. If any document is sent by United States regis- 54 tered mail, such registration shall be prima facie evidence that such 55 document was delivered to the commissioner, bureau, office, officer or 56 person to which or to whom addressed. To the extent that the commis-S. 8474 1015 1 sioner shall prescribe by regulation, certified mail may be used in lieu 2 of registered mail under this section. This subdivision shall apply in 3 the case of postmarks not made by the United States post office only if 4 and to the extent provided by regulations of the commissioner. 5 (b) Last known address. For purposes of this chapter, a taxpayer's 6 last known address shall be the address given in the last return filed 7 by the taxpayer, unless subsequent to the filing of such return the 8 taxpayer shall have notified the commissioner of a change of address. 9 (c) Last day a Saturday, Sunday or legal holiday. When the last day 10 prescribed under authority of this chapter, including any extension of 11 time, for performing any act falls on Saturday, Sunday, or a legal holi- 12 day in the state of New York, the performance of such act shall be 13 considered timely if it is performed on the next succeeding day which is 14 not a Saturday, Sunday or a legal holiday. 15 § 11-1934 Collection, levy and liens. (a) Collection procedures. The 16 taxes imposed by this chapter shall be collected by the commissioner, 17 and he or she may establish the mode or time for the collection of any 18 amount due the commissioner under this chapter if not otherwise speci- 19 fied. The commissioner shall, upon request, give a receipt for any sum 20 collected under this chapter. The commissioner may authorize banks or 21 trust companies which are depositories or financial agents of the city 22 to receive and give a receipt for any tax imposed under this chapter in 23 such manner, at such times, and under such conditions as the commission- 24 er may prescribe; and the commissioner shall prescribe the manner, times 25 and conditions under which the receipt of such tax by such banks and 26 trust companies is to be treated as payment of such tax to the commis- 27 sioner. 28 (b) Notice and demand for tax. The commissioner shall as soon as prac- 29 ticable and, in the case of an assessment the collection of which is 30 restricted by the provisions of subdivision (c) of section 11-1923 of 31 this subchapter, as soon as practicable after the expiration of such 32 restrictions give notice to each person liable for any amount of tax, 33 addition to tax, penalty or interest, which has been assessed but 34 remains unpaid, stating the amount and demanding payment thereof. Such 35 notice shall be left at the dwelling or usual place of business of such 36 person or shall be sent by mail to such person's last known address. 37 Except where the commissioner determines that collection would be jeop- 38 ardized by delay, if any tax is assessed prior to the last date, includ- 39 ing any date fixed by extension, prescribed for payment of such tax, 40 payment of such tax shall not be demanded until after such date. 41 (c) Issuance of warrant after notice and demand. If any person liable 42 under this chapter for the payment of any tax, addition to tax, penalty 43 or interest neglects or refuses to pay the same within ten days after 44 notice and demand therefor is given to such person under subdivision (b) 45 of this section, the commissioner may within six years after the date of 46 the expiration of the period of restriction on the collection of such 47 assessment issue a warrant directed to the sheriff of any county of the 48 state, or to any officer or employee of the department of finance of the 49 city, commanding the sheriff or such officer or employee to levy upon 50 and sell such person's real and personal property for the payment of the 51 amount assessed, with the cost of executing the warrant, and to return 52 such warrant to the commissioner and pay to him or her the money 53 collected by virtue thereof within sixty days after the receipt of the 54 warrant. If the commissioner finds that the collection of tax or other 55 amount is in jeopardy, notice and demand for immediate payment of such 56 tax may be made by the commissioner and upon failure or refusal to payS. 8474 1016 1 such tax or other amount the commissioner may issue a warrant without 2 regard to the ten-day period provided in this subdivision. 3 (d) Copy of warrant to be filed and lien to be created. Any sheriff or 4 officer or employee who receives a warrant under subdivision (c) of this 5 section shall within five days thereafter file a copy with the clerk of 6 the appropriate county. The clerk shall thereupon enter in the judgment 7 docket, in the column for judgment debtors, the name of the taxpayer 8 mentioned in the warrant, and in appropriate columns the tax or other 9 amounts for which the warrant is issued and the date when such copy is 10 filed; and such amount shall thereupon be a binding lien upon the real, 11 personal and other property of the taxpayer. 12 (e) Judgment. When a warrant has been filed with the county clerk the 13 commissioner shall, on behalf of the city, be deemed to have obtained 14 judgment against the taxpayer for the tax or other amounts. 15 (f) Execution. The sheriff or officer or employee shall thereupon 16 proceed upon the judgment in all respects, with like effect, and in the 17 same manner prescribed by law in respect to executions issued against 18 property upon judgments of a court of record, and a sheriff shall be 19 entitled to the same fees for such sheriff's services in executing the 20 warrant, to be collected in the same manner. An officer or employee of 21 the department of finance of the city may proceed in any county or coun- 22 ties of this state and shall have all the powers of execution conferred 23 by law upon sheriffs, but shall be entitled to no fee or compensation in 24 excess of actual expenses paid in connection with the execution of the 25 warrant. 26 (g) Taxpayer not then a resident. Where a notice and demand under 27 subdivision (b) of this section shall have been given to a taxpayer who 28 is not then a resident of this state, and it appears to the commissioner 29 that it is not practicable to find in this state property of the taxpay- 30 er sufficient to pay the entire balance of tax or other amount owing by 31 such taxpayer who is not then a resident of this state, the commissioner 32 may, in accordance with subdivision (c) of this section, issue a warrant 33 directed to an officer or employee of the department of finance of the 34 city a copy of which warrant shall be mailed by certified or registered 35 mail to the taxpayer at his or her last known address, subject to the 36 rules for mailing provided in subdivision (a) of section 11-1933 of this 37 subchapter. Such warrant shall command the officer or employee to 38 proceed in the city, and such officer or employee shall, within five 39 days after receipt of the warrant, file the warrant and obtain a judg- 40 ment in accordance with this section. Thereupon the commissioner may 41 authorize the institution of any action or proceeding to collect or 42 enforce the judgment in any place and by any procedure where and by 43 which a civil judgment of the supreme court of the state of New York 44 could be collected or enforced. The commissioner may also, in his or 45 her discretion, designate agents or retain counsel for the purpose of 46 collecting, outside the state of New York, any unpaid taxes, additions 47 to tax, penalties or interest which have been assessed under this chap- 48 ter against taxpayers who are not then residents of this state, may fix 49 the compensation of such agents and counsel to be paid out of money 50 appropriated or otherwise lawfully available for payment thereof, and 51 may require of them bonds or other security for the faithful performance 52 of their duties, in such form and in such amount as the commissioner 53 shall deem proper and sufficient. 54 (h) Action by the city for recovery of taxes. Action may be brought by 55 the corporation counsel or other appropriate officer of the city at the 56 insistence of the commissioner to recover the amount of any unpaidS. 8474 1017 1 taxes, additions to tax, penalties or interest which have been assessed 2 under this chapter within six years prior to the date the action is 3 commenced. The period during which collection of any assessment is 4 prohibited by subdivision (c) of section 11-1923 of this subchapter, 5 shall be added to such six years. 6 (i) Release of lien. The commissioner, if he or she finds that the 7 interest of the city will not thereby be jeopardized, and upon such 8 conditions as may require, may release any property from the lien of any 9 warrant for unpaid taxes, additions to tax, penalties and interest filed 10 pursuant to this section, and such release may be recorded in the office 11 of any recording officer in which such warrant has been filed. 12 § 11-1935 Transferees. (a) General. The liability, at law or in equi- 13 ty, of a transferee of property of a taxpayer for any tax, additions to 14 tax, penalty or interest due to the city under this chapter, shall be 15 assessed, paid, and collected in the same manner and subject to the same 16 provisions and limitations as in the case of the tax to which liability 17 relates, except that the period of limitations for assessment against 18 the transferee shall be extended by one year for each successive trans- 19 fer, in order, from the original taxpayer to the transferee involved, 20 but not by more than three years in the aggregate. The term "transfer- 21 ee" includes donee, heir, legatee, devisee and distributee; and also 22 includes a person liable for the amount of any tax, additions to tax, 23 penalty or interest under the provisions of section 11-1936 of this 24 subchapter. 25 (b) Exceptions. (1) If before the expiration of the period of limita- 26 tions for assessment of liability of the transferee, a claim has been 27 filed by the commissioner in any court against the original taxpayer or 28 the last preceding transferee based upon the liability of the original 29 taxpayer, then the period of limitation for assessment of liability of 30 the transferee shall in no event expire prior to one year after such 31 claim has been finally allowed, disallowed or otherwise disposed of. 32 (2) If, before the expiration of the time prescribed in subdivision 33 (a) of this section or paragraph one of this subdivision for the assess- 34 ment of the liability, the commissioner and the transferee have both 35 consented in writing to its assessment after such time, the liability 36 may be assessed at any time prior to the expiration of the period agreed 37 upon. The period so agreed upon may be extended by subsequent agree- 38 ments in writing made before the expiration of the period previously 39 agreed upon. For the purpose of determining the period of limitation on 40 credit or refund to the transferee of overpayments of tax made by such 41 transferee or overpayments of tax made by the transferor as to which the 42 transferee is legally entitled to credit or refund, such agreement and 43 any extension thereof shall be deemed an agreement and extension thereof 44 referred to in subdivision (b) of section 11-1929 of this subchapter. 45 If the agreement is executed after the expiration of the period of limi- 46 tation for assessment against the original taxpayer, then in applying 47 the limitations under subdivision (b) of section 11-1929 of this 48 subchapter on the amount of the credit or refund, the periods specified 49 in subdivision (a) of section 11-1929 of this subchapter shall be 50 increased by the period from the date of such expiration to the date of 51 the agreement. 52 (c) Deceased transferor. If any person is deceased, the period of 53 limitation for assessment against such person shall be the period that 54 would be in effect if he or she had lived. 55 (d) Evidence. Notwithstanding the provisions of section 11-1942 of 56 this subchapter, the commissioner shall use his or her powers to makeS. 8474 1018 1 available to the transferee evidence necessary to enable the transferee 2 to determine the liability of the original taxpayer and of any preceding 3 transferees, but without undue hardship to the original taxpayer or 4 preceding transferee. See subdivision (e) of section 11-1931 of this 5 subchapter for rule as to burden of proof. 6 § 11-1936 Liability of bulk transferees. Whenever there is made a 7 sale, transfer or assignment in bulk of any part or the whole of a stock 8 of merchandise or of fixtures, or merchandise and of fixtures pertaining 9 to the conducting of the business of the seller, transferor or assignor, 10 otherwise than in the ordinary course of trade and in the regular prose- 11 cution of said business, the purchaser, transferee or assignee shall at 12 least ten days before taking possession of such merchandise, fixtures, 13 or merchandise and fixtures, or paying therefor, notify the commissioner 14 by registered mail of the proposed sale and of the price, terms and 15 conditions thereof, whether or not the seller, transferor or assignor, 16 has represented to, or informed the purchaser, transferee or assignee, 17 that it owes any tax pursuant to this chapter, whether or not the 18 purchaser, transferee or assignee has knowledge that such taxes are 19 owing, and whether or not any such taxes are in fact owing. 20 Whenever the purchaser, transferee or assignee shall fail to give the 21 notice to the commissioner required by this section, or whenever the 22 commissioner shall inform the purchaser, transferee or assignee that a 23 possible claim for such tax or taxes exists, any sums of money, property 24 or choses in action, or other consideration, which the purchaser, trans- 25 feree or assignee is required to transfer over to the seller, transferor 26 or assignor shall be subject to a first priority right and lien for any 27 such taxes theretofore or thereafter determined to be due from the sell- 28 er, transferor or assignor to the city, and the purchaser, transferee or 29 assignee is forbidden to transfer to the seller, transferor or assignor 30 any such sums of money, property or choses in action to the extent of 31 the amount of the city's claim. For failure to comply with the 32 provisions of this subdivision the purchaser, transferee or assignee, in 33 addition to being subject to the liabilities and remedies imposed under 34 the provisions of article six of the uniform commercial code, shall be 35 personally liable for the payment to the city of any such taxes, there- 36 tofore or thereafter determined to be due to the city from the seller, 37 transferor or assignor and such liability may be assessed and enforced 38 in the same manner as the liability for tax is imposed under this chap- 39 ter. 40 § 11-1937 Jeopardy determination or assessment. (a) Authority for 41 making. If the commissioner believes that the assessment or collection 42 of a deficiency will be jeopardized by delay, he or she shall, notwith- 43 standing the provisions of sections 11-1923 and 11-1939 of this subchap- 44 ter, immediately assess or proceed to collect such deficiency, together 45 with all interest, penalties and additions to tax provided for by law, 46 and notice and demand shall be made by the commissioner for the payment 47 thereof. 48 (b) Notice of deficiency. If the jeopardy assessment is made before 49 any notice in respect of the tax to which the jeopardy assessment 50 relates has been mailed under section 11-1923 of this subchapter, then 51 the commissioner shall mail a notice under such section within sixty 52 days after making of the assessment. 53 (c) Amount assessable before decision of commissioner. The jeopardy 54 assessment may be made in respect of a deficiency greater or less than 55 that of which notice is mailed to the taxpayer and whether or not the 56 taxpayer has therefor filed a petition with the commissioner. TheS. 8474 1019 1 commissioner may, at any time before rendering his or her decision, 2 abate such assessment or any unpaid portion thereof, to the extent that 3 he or she believes the assessment to be excessive in amount. The 4 commissioner may in his or her decision redetermine the entire amount of 5 the deficiency and of all amounts assessed at the same time in 6 connection therewith. 7 (d) Amount assessable after decision of commissioner. If the jeopardy 8 assessment of determination of jeopardy is made after the decision of 9 the commissioner is rendered, such assessment or determination may be 10 made only in respect of the deficiency determined by the commissioner in 11 his or her decision. 12 (e) Expiration of right to assess. A jeopardy determination may not be 13 made after the decision of the commissioner has become final or after 14 the taxpayer has made an application for review of the decision of the 15 commissioner. 16 (f) Collection of unpaid amounts. When a petition has been filed with 17 the commissioner and when the amount which should have been assessed has 18 been determined by a decision of the commissioner which has become 19 final, then any unpaid portion, the collection of which has been stayed 20 by bond, shall be collected as part of the tax upon notice and demand 21 from the commissioner, and any remaining portion of the assessment shall 22 be abated. If the amount already collected exceeds the amount deter- 23 mined as the amount which should have been assessed, such excess shall 24 be credited or refunded to the taxpayer as provided in section 11-1928 25 of this subchapter without the filing of claim therefor. If the amount 26 determined as the amount which should have been assessed is greater than 27 the amount actually assessed, then the difference shall be assessed and 28 shall be collected as part of the tax upon notice and demand from the 29 commissioner. 30 (g) Abatement if jeopardy does not exist. The commissioner may abate 31 the jeopardy determination if he or she finds that jeopardy does not 32 exist. Such abatement may not be made after a decision of the commis- 33 sioner in respect of the deficiency has been rendered or, if no petition 34 is filed with the commissioner, after the expiration of the period for 35 filing such petition. The period of limitation on the making of a levy 36 or a proceeding for collection, in respect of any deficiency, shall be 37 determined as if the jeopardy assessment so abated has not been made, 38 except that the running of such period shall in any event be suspended 39 for the period from the date of such jeopardy determination until the 40 expiration of the tenth day after the day on which such jeopardy deter- 41 mination is abated. 42 (h) Bond to stay collection. The collection of the whole or any amount 43 of any assessment determined to be in jeopardy may be stayed by filing 44 with the commissioner, within such time as may be fixed by regulation, a 45 bond in an amount equal to the amount as to which the stay is desired 46 conditioned upon the payment of the amount, together with interest ther- 47 eon, the collection of which is stayed at the time at which, but for the 48 making of the jeopardy assessment, such amount would be due. Upon the 49 filing of the bond, the collection of so much of the amount assessed as 50 is covered by the bond shall be stayed. The taxpayer shall have the 51 right to waive such stay at any time in respect of the whole or any part 52 of the amount covered by the bond and, if as a result of such waiver any 53 part of the amount covered by the bond is paid, then the bond shall, at 54 the request of the taxpayer, be proportionately reduced. If any portion 55 of the jeopardy assessment is abated, or if a notice of deficiency under 56 section 11-1923 of this subchapter is mailed to the taxpayer in a lesserS. 8474 1020 1 amount, the bond shall, at the request of the taxpayer, be proportion- 2 ately reduced. 3 (i) Petition to commissioner. If the bond is given before the taxpayer 4 has filed his or her petition under section 11-1931 of this subchapter, 5 the bond shall contain a further condition that if a petition is not 6 filed within the period provided in such section, then the amount, the 7 collection of which is stayed by the bond, will be paid on notice and 8 demand at any time after the expiration of such period, together with 9 interest thereon from the date of the jeopardy notice and demand to the 10 date of notice and demand under this subdivision. The bond shall be 11 conditioned upon the payment of so much of such assessment, collection 12 of which is stayed by the bond, as is not abated by a decision of the 13 commissioner which has become final. If the commissioner determines 14 that the amount assessed is greater than the amount which should have 15 been assessed, then the bond shall, at the request of the taxpayer, be 16 proportionately reduced when the decision of the commissioner is 17 rendered. 18 (j) Stay of sale of seized property pending commissioner's decision. 19 Where a jeopardy assessment or a determination of jeopardy is made, the 20 property seized for the collection of the tax shall not be sold: 21 (1) if subdivision (b) of this section is applicable, prior to the 22 issuance of the notice of deficiency and the expiration of the time 23 provided in section 11-1931 of this subchapter for filing a petition 24 with the commissioner, and 25 (2) if a petition is filed with the commissioner, whether before or 26 after the making of such jeopardy assessment or determination, prior to 27 the expiration of the period during which the collection of the defi- 28 ciency assessed would be prohibited if subdivision (a) of this section 29 were not applicable. 30 Such property may be sold if the taxpayer consents to the sale, or if 31 the commissioner determines that the expenses of conservation and main- 32 tenance will greatly reduce the net proceeds, or if the property is 33 perishable. 34 (k) Interest. For the purpose of subdivision (a) of section 11-1926 of 35 this subchapter, the last date prescribed for payment shall be deter- 36 mined without regard to any notice and demand for payment issued under 37 this section prior to the last date otherwise prescribed for such 38 payment. 39 (l) Early termination of taxable year. If the commissioner finds that 40 a taxpayer designs quickly to depart from this state or to remove his or 41 her property therefrom, or to conceal himself or herself or his or her 42 property therein, or to do any other act tending to prejudice or to 43 render wholly or partly ineffectual proceedings to collect the tax for 44 the current or the preceding taxable year unless such proceedings be 45 brought without delay, the commissioner shall declare the taxable period 46 for such taxpayer immediately terminated, and shall cause notice of such 47 finding and declaration to be given the taxpayer, together with a demand 48 for immediate payment of the tax for the taxable period so declared 49 terminated and of the tax for the preceding taxable year or so much of 50 such tax as is unpaid, whether or not the time otherwise allowed by law 51 for filing return and paying the tax has expired; and such taxes shall 52 thereupon become immediately due and payable. In any proceeding brought 53 to enforce payment of taxes made due and payable by virtue of the 54 provisions of this subdivision, the finding of the commissioner made as 55 herein provided, whether made after notice to the taxpayer or not, shall 56 be for all purposes presumptive evidence of jeopardy.S. 8474 1021 1 (m) Reopening of taxable period. Notwithstanding the termination of 2 the taxable period of the taxpayer by the commissioner as provided in 3 subdivision (1) of this section, the commissioner may reopen such taxa- 4 ble period each time the taxpayer is found by the commissioner to have 5 received wages or net earnings from self-employment, within the current 6 taxable year, since the termination of such period. A taxable period so 7 terminated by the commissioner may be reopened by the taxpayer if he or 8 she files with the commissioner a true and accurate return of taxable 9 wages and net earnings from self-employment under this chapter for such 10 taxable period, together with such other information as the commissioner 11 may by regulation prescribe. 12 (n) Furnishing of bond where taxable year is closed by the commis- 13 sioner. Payment of taxes shall not be enforced by any proceedings under 14 the provisions of subdivision (1) of this section prior to the expira- 15 tion of the time otherwise allowed for paying such taxes if the taxpayer 16 furnishes, under regulations prescribed by the commissioner, a bond to 17 insure the timely making of returns with respect to, and payment of, 18 such taxes or any taxes for prior years. 19 § 11-1938 Criminal penalties. (a) Attempt to evade tax. Any individ- 20 ual, corporation or partnership or any officer or employee of any corpo- 21 ration, or member or employee of any partnership, who, with intent to 22 evade any tax or any requirement of this chapter or any lawful require- 23 ment of the commissioner thereunder, shall fail to pay the tax, or to 24 make, render, sign or certify any return or declaration of estimated 25 tax, or to supply any information within the time required by or under 26 the provisions of this chapter, or who, with like intent, shall make, 27 render, sign or certify any false or fraudulent return, declaration or 28 statement, or shall supply any false or fraudulent information, or who 29 shall fail to comply with the provisions of subdivision (b) of section 30 11-1912 of this chapter after the service of a notice by the commission- 31 er thereunder, shall be guilty of a misdemeanor and shall, upon 32 conviction, be fined not to exceed five thousand dollars or be impri- 33 soned not to exceed one year, or both, at the discretion of the court. 34 (b) Limitations. Notwithstanding the provisions of section 30.10 of 35 the criminal procedure law or of any other law of this state, a prose- 36 cution for any offense under this section may be commenced at any time 37 not later than three years after the commission of such offense provided 38 that, if such offense is the failure to do an act required by or under 39 any provision of this chapter to be done before a certain date, a prose- 40 cution for such offense may be commenced not later than three years 41 after such date. 42 (c) Willful failure to withhold. Any individual, corporation or part- 43 nership or any officer or employee of any corporation, including a 44 dissolved corporation, or member or employee of any partnership, who 45 willfully fails to collect or pay over any withholding tax as required, 46 shall, in addition to other penalties provided by law, be guilty of a 47 misdemeanor, and, upon conviction thereof, shall be fined not to exceed 48 five thousand dollars or imprisoned not to exceed one year, or both. 49 (d) Two or more charges. In the prosecution of offenses under this 50 section, if there are two or more charges against any person or corpo- 51 ration, involving a violation or violations of any provision or 52 provisions of this chapter, whether for the same or different taxable 53 years, instead of returning several indictments or filing several infor- 54 mations, all of such charges may be joined in one indictment or informa- 55 tion, in separate counts, and if two or more indictments are found, or 56 two or more informations are filed, the court may order them to beS. 8474 1022 1 consolidated. If a person or corporation shall be convicted of two or 2 more offenses constituting different crimes set forth in different 3 counts of one indictment or information, or in separate indictments or 4 informations consolidated as hereinbefore provided, the court may impose 5 a separate sentence for each offense, and if imprisonment is imposed, 6 the court may order any of such sentences to be served concurrently or 7 consecutively. 8 (e) Miscellaneous rules. Any prosecution under this section may be 9 conducted in any county where the person or corporation to whose tax 10 liability the proceeding relates resides, or has a place of business, or 11 in any county in which any such crime is committed. The corporation 12 counsel of the city shall have concurrent jurisdiction with any district 13 attorney in the prosecution of any offense under this section. If the 14 provisions of this section conflict with those contained in any other 15 law, this section shall control. The certificate of the commissioner to 16 the effect that a tax has not been paid, that a return or declaration of 17 estimated tax has not been filed, or that information has not been 18 supplied, as required by or under the provisions of this chapter, shall 19 be prima facie evidence that such tax has not been paid, that such 20 return or declaration has not been filed, or that such information has 21 not been supplied. All fines levied under this section shall be paid to 22 the commissioner and deposited in the same manner as revenues collected 23 or received under this chapter. 24 § 11-1939 Armed forces relief provisions. (a) Time to be disregarded. 25 In the case of an individual serving in the armed forces of the United 26 States or serving in support of such armed forces, in an area designated 27 by the president of the United States by executive order as a "combat 28 zone" at any time during the period designated by the president by exec- 29 utive order as the period of combatant activities in such zone, or 30 hospitalized outside the state as a result of injury received while 31 serving in such an area during such time, the period of service in such 32 area, plus the period of continuous hospitalization outside the state 33 attributable to such injury, and the next one hundred eighty days there- 34 after, shall be disregarded in determining, under this chapter in 35 respect of the tax liability, including any interest, penalty, or addi- 36 tion to the tax, of such individual: 37 (1) Whether any of the following acts was performed within the time 38 prescribed therefor: 39 (A) filing any return of tax, except withholding tax; 40 (B) payment of any tax, except withholding tax, or any installment 41 thereof or of any other liability to the commissioner, in respect there- 42 of; 43 (C) filing a petition with the commissioner for credit or refund or 44 for redetermination of a deficiency, or application for review of a 45 decision rendered by the commissioner; 46 (D) allowance of a credit or refund of tax; 47 (E) filing a claim for credit or refund of tax; 48 (F) giving or making any notice or demand for the payment of any tax, 49 or with respect to any liability to the commissioner in respect of tax; 50 (G) collection, by the commissioner, by levy or otherwise of the 51 amount of any liability in respect of tax; 52 (H) bringing suit by the city, or any officer, on its behalf, in 53 respect of any liability in respect of tax; and 54 (I) any other act required or permitted under this chapter or speci- 55 fied in the regulations prescribed under this section by the commission- 56 er.S. 8474 1023 1 (2) The amount of any credit or refund, including interest. 2 (b) Action taken before ascertainment of right to benefits. The 3 collection of the tax imposed by this chapter or of any liability to the 4 commissioner in respect of such tax, or any action or proceeding by or 5 on behalf of the commissioner in connection therewith, may be made, 6 taken, begun, or prosecuted in accordance with law, without regard to 7 the provisions of subdivision (a) of this section, unless prior to such 8 collection, action, or proceeding it is ascertained that the person 9 concerned is entitled to the benefit of subdivision (a) of this section. 10 (c) Members of armed forces dying in action. In the case of any person 11 who dies while in active service as a member of the armed forces of the 12 United States, if such death occurred while serving in a combat zone 13 during a period of combatant activities in such zone, as described in 14 subdivision (a) of this section, or as a result of wounds, disease or 15 injury incurred while so serving, the tax imposed by this chapter shall 16 not apply with respect to the taxable year in which falls the date of 17 his or her death, or with respect to any prior taxable year ending on or 18 after the first day so served in a combat zone, and no returns shall be 19 required in behalf of such person or his or her estate for such year; 20 and the tax for any such taxable year which is unpaid at the date of 21 death, including interest, additions to tax and penalties, if any, shall 22 not be assessed and, if assessed, the assessment shall be abated and, if 23 collected, shall be refunded to the legal representative of such estate 24 if one has been appointed and has qualified, or, if no legal represen- 25 tative has been appointed or has qualified, to the surviving spouse. 26 § 11-1940 General powers of commissioner. (a) General. The commission- 27 er shall administer and enforce the tax imposed by this chapter and the 28 commissioner is authorized to make such rules and regulations, and to 29 require such facts and information to be reported, as the commissioner 30 may deem necessary to enforce the provisions of this chapter and the 31 commissioner may delegate his or her powers and functions under all 32 subchapters of this chapter to one of his or her deputies or to any 33 employee or employees of his or her department. 34 (b) Examination of books and witnesses. The commissioner for the 35 purpose of ascertaining the correctness of any return, or for the 36 purpose of making an estimate of taxable wages and net earnings from 37 self-employment of any person, shall have power to examine or to cause 38 to have examined, by any agent or representative designated by him or 39 her for that purpose, any books, papers, records or memoranda bearing 40 upon the matters required to be included in the return, and may require 41 the attendance of the person rendering the return or any officer or 42 employee of such person, or the attendance of any other person having 43 knowledge in the premises, may take testimony and require proof material 44 for the commissioner's information, with power to administer oaths to 45 such person or persons and may issue commissions for the examination of 46 witnesses who are out of the state or unable to attend before the 47 commissioner or excused from attendance, and for the production of 48 books, papers, records or memoranda. 49 (c) Abatement authority. The commissioner, of his or her own motion, 50 may abate any small unpaid balance of an assessment of tax, or any 51 liability in respect thereof, if the commissioner determines under 52 uniform rules prescribed by him or her that the administration and 53 collection costs involved would not warrant collection of the amount 54 due. The commissioner may also abate, of his or her own motion, the 55 unpaid portion of the assessment of any tax or any liability in respect 56 thereof, which is excessive in amount, or is assessed after the expira-S. 8474 1024 1 tion of the period of limitation properly applicable thereto, or is 2 erroneously or illegally assessed. No claim for abatement under this 3 subdivision shall be filed by a taxpayer. 4 (d) Special refund authority. Where no questions of fact or law are 5 involved and it appears from the records of the commissioner that any 6 moneys have been erroneously or illegally collected from any taxpayer or 7 other person, or paid by such taxpayer or other person under a mistake 8 of facts, pursuant to the provisions of this chapter, the commissioner 9 at any time, without regard to any period of limitations, shall have the 10 power, upon making a record of his or her reasons therefor in writing, 11 to cause such moneys so paid and being erroneously and illegally held to 12 be refunded. 13 (e) Cooperation with the United States and other states. Notwith- 14 standing the provisions of section 11-1942 of this subchapter, the 15 commissioner may permit the secretary of the treasury of the United 16 States or such secretary's delegates, or the proper tax officer of any 17 other state imposing an income tax upon the income of individuals, or 18 the authorized representative of either such officer, to inspect any 19 return filed under this chapter, or may furnish to such officer or his 20 or her authorized representative an abstract of any such return or 21 supply him or her with information concerning an item contained in any 22 such return, or disclosed by any investigation of tax liability under 23 this chapter, but such permission shall be granted or such information 24 furnished to such officer or his or her representative only if the laws 25 of the United States or of such state, as the case may be, grant 26 substantially similar privileges to the commissioner and such informa- 27 tion is to be used for tax purposes only; and provided further the 28 commissioner may furnish to the commissioner of internal revenue or his 29 or her authorized representative such returns filed under this chapter 30 and other tax information as he or she may consider proper for the use 31 in court actions or proceedings under the internal revenue code, whether 32 civil or criminal, where a written request therefor has been made to the 33 commissioner by the secretary of the treasury of the United States or by 34 his or her delegates, provided the laws of the United States grant 35 substantially similar powers to the secretary of the treasury of the 36 United States or such secretary's delegates. Where the commissioner has 37 so authorized use of returns and other information in such actions or 38 proceedings, officers and employees of the department of taxation and 39 finance may testify in such actions or proceedings in respect to such 40 returns or other information. 41 § 11-1941 Joint enforcement. (1) If there is assessed a tax under this 42 chapter and there is also assessed a tax or taxes against the same 43 taxpayer pursuant to article twenty-two of the tax law and if the 44 commissioner of the tax imposed by this chapter takes action under the 45 tax law with respect to the enforcement and collection of the tax or 46 taxes assessed under such tax law, the commissioner shall, wherever 47 possible, accompany such action with a similar action under similar 48 enforcement and collection provisions of this chapter. 49 (2) Any monies collected as a result of such joint action shall be 50 deemed to have been collected in proportion in the amounts due, includ- 51 ing tax, penalties, interest and additions to tax under article twenty- 52 two of the tax law and under this chapter. 53 (3) Whenever the commissioner takes any action with respect to a defi- 54 ciency of personal income tax, under article twenty-two of the tax law 55 other than the action set forth in subdivision one of this section theS. 8474 1025 1 commissioner may, in his or her discretion, accompany such action with a 2 similar action under this chapter. 3 § 11-1942 Secrecy requirement and penalties for violation. 1. Except 4 in accordance with proper judicial order or as otherwise provided by 5 law, it shall be unlawful for the commissioner or any other officer or 6 employee of the department of finance of the city, any person engaged or 7 retained by such commissioner or department on an independent contract 8 basis, any depository to which any return may be delivered as provided 9 in subdivision two of this section, any officer or employee of such 10 depository, or any person who, pursuant to this section, is permitted to 11 inspect any report or return or to whom a copy, an abstract or a portion 12 of any report or return is furnished, or to whom any information 13 contained in any report or return is furnished, to divulge or make known 14 in any manner the amount of wages or earnings or any particulars set 15 forth or disclosed in any report or return required under this chapter. 16 The commissioner or any other officer and employee charged with the 17 custody of such reports and returns shall not be required to produce any 18 of them or evidence of anything contained in them in any action or 19 proceeding in any court, except on behalf of the city in an action or 20 proceeding under the provisions of this chapter or in any other action 21 or proceeding involving the collection of a tax due under this chapter 22 to which the city is a party or a claimant, or on behalf of any party to 23 any action or proceeding under the provisions of this chapter when the 24 reports, returns or facts shown thereby are directly involved in such 25 action or proceeding, in any of which events the court may require the 26 production of, and may admit in evidence, so much of said reports, 27 returns or of the facts shown thereby, as are pertinent to the action or 28 proceeding and no more; except as provided in subdivision (e) of section 29 11-1940 of this subchapter. The commissioner may, nevertheless, publish 30 a copy or a summary of any determination or decision rendered after the 31 hearing required under section 11-1931 of this subchapter of this chap- 32 ter. Nothing in this section shall be construed to prohibit the deliv- 33 ery to a taxpayer or the taxpayer's duly authorized representative of a 34 certified copy of any return or report filed in connection with his or 35 her tax or to prohibit the publication of statistics so classified as to 36 prevent the identification of particular reports or returns and the 37 items thereof, or the inspection by the legal representatives of the 38 city of the report or return of any taxpayer who shall bring action to 39 set aside or review the tax based thereon, or against whom an action or 40 proceeding under this chapter has been recommended by the commissioner. 41 Reports and returns shall be preserved for three years and thereafter 42 until the commissioner orders them to be destroyed. Any violation of 43 the provisions of this section shall be punished by a fine not exceeding 44 one thousand dollars or by imprisonment not exceeding one year, or both, 45 at the discretion of the court, and if the offender be the commissioner 46 or any other officer or employee of the city, he or she shall be 47 dismissed from office and be incapable of holding any public office in 48 the city or the state for a period of five years thereafter. 49 2. Notwithstanding the provisions of subdivision one of this section, 50 the commissioner of finance, in his or her discretion, may require or 51 permit any or all individuals, estates or trusts, liable for any tax 52 imposed by this chapter, to make payments on account of estimated tax 53 and payment of any tax, penalty or interest imposed by this chapter to 54 banks, banking houses or trust companies designated by the commissioner 55 of finance and to file declarations of estimated tax and reports and 56 returns with such banks, banking houses or trust companies as agents ofS. 8474 1026 1 the commissioner of finance, in lieu of making any such payment directly 2 to the commissioner of finance. However, the commissioner of finance 3 shall designate only such banks, banking houses or trust companies as 4 are depositories or financial agents of Staten Island. 5 § 11-1943 Provisions not applicable. The provisions contained in this 6 subchapter shall not be applicable with respect to taxes imposed for 7 taxable periods commencing on or after January first, nineteen hundred 8 seventy-six but, with respect to the tax imposed for such periods the 9 provisions contained in part VI of article twenty-two of the tax law and 10 sections six hundred fifty-three, six hundred fifty-eight, six hundred 11 sixty-two and thirteen hundred eleven of the tax law including the 12 provisions of judicial review by a proceeding under article seventy- 13 eight of the civil practice law and rules shall be applicable with the 14 same force and effect as if those provisions had been incorporated in 15 full in this section except where inconsistent with the provisions of 16 this chapter. 17 § 11-1944 Deposit and disposition of revenues by commissioner. All 18 taxes, penalties and interest imposed under this chapter which are paid 19 to or collected by the commissioner of finance shall be deposited by the 20 commissioner of finance in the general fund of the city. 21 § 11-1945 Effect of invalidity in part; inconsistencies with other 22 laws. (a) If any clause, sentence, paragraph, subdivision, section, 23 provision or other portion of this chapter or the application thereof to 24 any person or circumstances shall be held to be invalid, such holding 25 shall not affect, impair or invalidate the remainder of this chapter or 26 the application of such portion held invalid, to any other person or 27 circumstances, but shall be confined in its operation to the clause, 28 sentence, paragraph, subdivision, section, provision or other portion 29 thereof directly involved in such holding or to the person and circum- 30 stances therein involved. 31 (b) If any provision of this chapter is inconsistent with, in conflict 32 with, or contrary to any other provision of law, such provision of this 33 chapter shall prevail over such other provision and such other provision 34 shall be deemed to have been amended, superseded or repealed to the 35 extent of such inconsistency, conflict or contrariety. 36 CHAPTER 20 37 SALES, EXCISE AND RELATED TAXES 38 SUBCHAPTER 1 39 GENERAL SALES AND COMPENSATING USE TAXES 40 § 11-2001 Imposition of general sales and compensating use taxes. (a) 41 There are hereby imposed and there shall be paid all of the sales and 42 compensating use taxes described in article twenty-eight of the tax law 43 as authorized by subdivision (a) of section twelve hundred ten of the 44 tax law, at the rate of four and one-half percent, provided that the 45 taxes described in paragraph six of subdivision (c) of section eleven 46 hundred five of the tax law shall be imposed and paid at the rate of six 47 percent. 48 (b) Notwithstanding any contrary provision of this section or other 49 law, this section: (1) does not impose tax on (i) receipts from the 50 sale of the services of laundering, dry-cleaning, tailoring, weaving, 51 pressing, shoe repairing and shoe shining described in subparagraph (ii) 52 of paragraph three of subdivision (c) of section eleven hundred five of 53 the tax law; (ii) receipts from the sale of services described in para- 54 graph six of subdivision (c) of section eleven hundred five of the taxS. 8474 1027 1 law at facilities owned and operated by the city or an agency or instru- 2 mentality of the city or a public corporation the majority of whose 3 members are appointed by the mayor or the city council or both of them; 4 (2) for purposes of the tax described in subdivision (e) of section 5 eleven hundred five of the tax law, defines "permanent resident" to mean 6 any occupant of any room or rooms in a hotel for at least one hundred 7 eighty consecutive days with regard to the period of such occupancy; (3) 8 does not omit from the tax described in paragraph one of subdivision (f) 9 of section eleven hundred five of the tax law charges to a patron for 10 admission to, or use of, facilities for sporting activities in which 11 such patron is to be a participant, such as bowling alleys and swimming 12 pools; (4) provides the clothing and footwear exemption in paragraph 13 thirty of subdivision (a) of section eleven hundred fifteen of the tax 14 law; (5) omits the exemption provided in paragraph forty-one of subdivi- 15 sion (a) of section eleven hundred fifteen of the tax law; (6) omits the 16 exemption provided in subdivision (c) of section eleven hundred fifteen 17 of the tax law insofar as it applies to fuel, gas, electricity, refrig- 18 eration and steam, and gas, electric, refrigeration and steam service of 19 whatever nature for use or consumption directly and exclusively in the 20 production of gas, electricity, refrigeration or steam; and (7) omits 21 the provision for refund or credit contained in clause six of subdivi- 22 sion (a) of section eleven hundred nineteen of the tax law. 23 (c) The taxes imposed by this section shall be in addition to any and 24 all other taxes authorized or imposed under any other provision of law. 25 (d) The taxes imposed by this section shall be administered and 26 collected by the state commissioner of taxation and finance as provided 27 in articles twenty-eight and twenty-nine of the tax law. 28 (e) The provisions of articles twenty-eight and twenty-nine of the tax 29 law relating or applicable to the taxes imposed by this section, includ- 30 ing the applicable definitions, transitional provisions, limitations, 31 special provisions, exemptions, exclusions, refunds, credits and admin- 32 istrative provisions, so far as those provisions can be made applicable 33 to the taxes imposed by this section, shall apply to the taxes imposed 34 by this section with the same force and effect as if those provisions 35 had been incorporated in full into this section and had expressly 36 referred to the taxes imposed by this section, except to the extent that 37 any provision of article twenty-eight or twenty-nine of the tax law is 38 either inconsistent with or not relevant to the taxes imposed by this 39 section. 40 (f) Net collections from the taxes imposed by this section paid to 41 this city by the state comptroller shall be credited to and deposited in 42 the general fund of this city, but no part of such revenues may be 43 expended unless appropriated in the annual budget of this city. 44 (g) If any provision of this section or the application thereof shall 45 for any reason be adjudged by any court of competent jurisdiction to be 46 invalid, such judgment shall not affect, impair or invalidate the 47 remainder of this section but shall be confined in its operation to the 48 provision thereof directly involved in the controversy in which such 49 judgment shall have been rendered and the application of such provision 50 to other persons or circumstances shall not be affected thereby. 51 § 11-2002 Imposition of special sales taxes. (a) There are hereby 52 imposed and there shall be paid sales taxes at the rate of four and 53 one-half percent on receipts from every sale of the services of beauty, 54 barbering, hair restoring, manicuring, pedicuring, electrolysis, massage 55 services and similar services, and every sale of services by weight 56 control salons, health salons, gymnasiums, Turkish and sauna bath andS. 8474 1028 1 similar establishments and every charge for the use of such facilities, 2 whether or not any tangible personal property is transferred in conjunc- 3 tion therewith; but excluding services rendered by a physician, osteo- 4 path, dentist, nurse, physiotherapist, chiropractor, podiatrist, optome- 5 trist, ophthalmic dispenser or a person performing similar services 6 licensed under title eight of the education law, as amended, and exclud- 7 ing such services when performed on pets and other animals, as author- 8 ized by subdivision (a) of section twelve hundred twelve-a of the tax 9 law. Provided, however, that the tax hereby imposed shall not be imposed 10 after November thirtieth, two thousand twenty-six. 11 (b) The taxes imposed by this section shall be in addition to any and 12 all other taxes authorized or imposed under any other provision of law. 13 (c) The taxes imposed by this section shall be administered and 14 collected by the state commissioner of taxation and finance as provided 15 in articles twenty-eight and twenty-nine of the tax law. 16 (d) The provisions of articles twenty-eight and twenty-nine of the tax 17 law relating or applicable to the taxes imposed by this section, includ- 18 ing the applicable definitions, transitional provisions, limitations, 19 special provisions, exemptions, exclusions, refunds, credits and admin- 20 istrative provisions, so far as those provisions can be made applicable 21 to the taxes imposed by this section, shall apply to the taxes imposed 22 by this section with the same force and effect as if those provisions 23 had been incorporated in full into this section and had expressly 24 referred to the taxes imposed by this section, except to the extent that 25 any provision of article twenty-eight or twenty-nine of the tax law is 26 either inconsistent with or not relevant to the taxes imposed by this 27 section. 28 (e) Net collections from the taxes imposed by this section paid to 29 this city by the state comptroller shall be credited to and deposited in 30 the general fund of this city, but no part of such revenues may be 31 expended unless appropriated in the annual budget of this city. 32 (f) If any provision of this section or the application thereof shall 33 for any reason be adjudged by any court of competent jurisdiction to be 34 invalid, such judgment shall not affect, impair or invalidate the 35 remainder of this section but shall be confined in its operation to the 36 provision thereof directly involved in the controversy in which such 37 judgment shall have been rendered and the application of such provision 38 to other persons or circumstances shall not be affected thereby. 39 § 11-2032 Construction and enforcement. This subchapter shall be 40 construed and enforced in conformity with articles twenty-eight and 41 twenty-nine of the tax law of the state of New York pursuant to which 42 the same is enacted. 43 SUBCHAPTER 3 44 SALES TAX ON CREDIT SERVICES, 45 PROTECTIVE AND DETECTIVE SERVICES, 46 INTERIOR DECORATING AND DESIGNING 47 SERVICES, AND INTERIOR CLEANING AND MAINTENANCE SERVICES 48 § 11-2039 Definitions. (a) "Person" includes an individual, partner- 49 ship, society, association, joint-stock company, corporation, estate, 50 receiver, trustee, assignee, referee, and any other person acting in a 51 fiduciary or representative capacity, whether appointed by a court or 52 otherwise, and any combination of the foregoing. 53 (b) When used in this subchapter for the purposes of the taxes imposed 54 by this subchapter, the following terms shall mean:S. 8474 1029 1 (1) "Purchaser." A person who purchases property or to whom are 2 rendered services, the receipts from which are taxable under this 3 subchapter. 4 (2) "Receipt." The amount of the sale price of any property and the 5 charge for any service taxable under this subchapter, valued in money, 6 whether received in money or otherwise, including any amount for which 7 credit is allowed by the vendor to the purchaser, without any deduction 8 for expenses or early payment discounts, but excluding any credit for 9 tangible personal property accepted in part payment and intended for 10 resale. 11 (3) "Sale." Any transfer of title or possession or both, exchange or 12 barter, rental, lease or license to use or consume, conditional or 13 otherwise, in any manner or by any means whatsoever for a consideration, 14 or any agreement therefor, including the rendering of any service, taxa- 15 ble under this subchapter, for a consideration or any agreement there- 16 for. 17 (4) "Vendor." A person making sales of tangible personal property or 18 services, the receipts from which are taxed by this subchapter. 19 (5) "Tax commission." Tax commission of the state of New York. 20 (6) "Tax law." Tax law of the state of New York. 21 § 11-2040 Imposition of tax. (a) There is hereby imposed within the 22 city and there shall be paid a tax at the rate of four and one-half 23 percent upon the receipts from every sale, except for resale, of credit 24 rating and credit reporting services, including, but not limited to, 25 those services provided by mercantile and consumer credit rating or 26 reporting bureaus or agencies, whether rendered in written or oral form 27 or in any other manner, except to the extent otherwise taxable under 28 article twenty-eight of the tax law; provided, however, that the tax 29 hereby imposed shall not be imposed after November thirtieth, two thou- 30 sand twenty-six, on receipts from sales of the services specified in 31 this subdivision. 32 (b) Wages, salaries and other compensation paid by an employer to an 33 employee for performing as an employee the services described in subdi- 34 vision (a) of this section are not receipts subject to the taxes imposed 35 by such subdivision. 36 (c) Any taxes imposed by this subchapter are in addition to any other 37 tax which the city may impose or may be imposing pursuant to any law. 38 § 11-2041 Transitional provisions. The taxes imposed under subdivision 39 (a) of section 11-2040 of this subchapter shall be paid with respect to 40 receipts from all sales of services on or after September first, nine- 41 teen hundred seventy-five although rendered or agreed to be rendered 42 under a prior contract. Where a service is sold on a monthly, quarterly, 43 yearly or other term basis, the charge for such service shall be subject 44 to tax under this subchapter to the extent that such charge is applica- 45 ble to any period on or after September first, nineteen hundred seven- 46 ty-five, and such charge shall be apportioned on the basis of the ratio 47 of the number of days falling within such period to the total number of 48 days in the full term or period. 49 § 11-2042 Exempt organizations. Except as otherwise provided in this 50 section, any sale by or to any of the following shall not be subject to 51 the taxes imposed by this subchapter: 52 (1) The state of New York, or any of its agencies, instrumentalities, 53 public corporations, including a public corporation created pursuant to 54 agreement or compact with another state or Canada, or political subdivi- 55 sions where it is the purchaser, user or consumer, or where it is aS. 8474 1030 1 vendor of services or property of a kind not ordinarily sold by private 2 persons; 3 (2) The United States of America, and any of its agencies and instru- 4 mentalities, insofar as it is immune from taxation where it is the 5 purchaser, user or consumer, or where it sells services or property of a 6 kind not ordinarily sold by private persons; 7 (3) The United Nations or any international organization of which the 8 United States of America is a member where it is the purchaser, user or 9 consumer, or where it sells services or property of a kind not ordinar- 10 ily sold by private persons; 11 (4) Any corporation, association, trust, or community chest, fund or 12 foundation, organized and operated exclusively for religious, charita- 13 ble, scientific, testing for public safety, literary or educational 14 purposes, or for the prevention of cruelty to children or animals, no 15 part of the net earnings of which inures to the benefit of any private 16 shareholder or individual, no substantial part of the activities of 17 which is carrying on propaganda, or otherwise attempting to influence 18 legislation, and which does not participate in, or intervene in, includ- 19 ing the publishing or distributing of statements any political campaign 20 on behalf of any candidate for public office; 21 (5) A post or organization of war veterans, or an auxiliary unit or 22 society of, or a trust or foundation for, any such post or organization: 23 (A) organized in this state, 24 (B) at least seventy-five percent of the members of which are war 25 veterans and substantially all of the other members of which are indi- 26 viduals who are veterans, but not war veterans, or are cadets, or are 27 spouses, widows or widowers of war veterans or such individuals, and 28 (C) no part of the net earnings of which inures to the benefit of any 29 private shareholder or individual. 30 § 11-2043 Refunds or credits based on proof of certain uses. A refund 31 or credit equal to the amount of the sales or compensating use tax 32 imposed by section eleven hundred seven of the tax law or by section 33 11-2001 of this chapter, as the case may be, and paid on the sale or use 34 of tangible personal property which is later used by such purchaser in 35 performing a service subject to tax under this subchapter shall be 36 allowed such purchaser against the tax imposed by this subchapter and 37 collected by such person on the sale of such services if such property 38 has become a physical component part of the property upon which the 39 service is performed or has been transferred to the purchaser of the 40 service in conjunction with the performance of the service subject to 41 tax; provided, however, that any such refund or credit shall be without 42 interest. 43 § 11-2044 Administration and collection. The taxes imposed by section 44 11-2040 of this subchapter shall be administered and collected by the 45 tax commission in the same manner as the taxes imposed by article twen- 46 ty-eight of the tax law are administered and collected by such commis- 47 sion. All of the provisions of such article relating to or applicable 48 to the administration and collection of the taxes imposed by that arti- 49 cle shall apply to the taxes imposed by this subchapter, including 50 sections eleven hundred one, eleven hundred eleven, and sections eleven 51 hundred thirty-one through eleven hundred forty-seven inclusive, with 52 the same force and effect as if those provisions had been incorporated 53 in full into this subchapter and had expressly referred to the taxes 54 imposed by this subchapter, except as otherwise provided in section 55 twelve hundred fifty of the tax law. For purposes of this subchapter,S. 8474 1031 1 the term "tax" in part IV of such article twenty-eight of the tax law 2 shall include the taxes imposed by this subchapter. 3 § 11-2045 Deposit and disposition of revenue. (a) The tax commission 4 shall deposit daily to the credit of the comptroller of the state of New 5 York, all taxes, penalties and interest collected under this subchapter 6 in such responsible banks, banking houses or trust companies as may be 7 designated by the comptroller. Such deposits shall be kept in trust for 8 the city and separate and apart from all other monies in the possession 9 of the comptroller. The comptroller shall require adequate security 10 from all such depositories. Of the revenue collected under this subchap- 11 ter the comptroller shall retain in his or her hands such amount as the 12 commissioner of taxation and finance of the state of New York may deter- 13 mine to be necessary for refunds under this subchapter and for reason- 14 able costs of the tax commission in administering, collecting and 15 distributing the taxes under this subchapter, out of which the comp- 16 troller shall pay any refunds made under the provisions of this subchap- 17 ter. The comptroller, after reserving such refund fund and such costs, 18 shall on or before the twelfth day of each month, pay to the commission- 19 er of finance of this city all taxes, interest and penalties collected 20 under this subchapter and remaining to the comptroller's credit in such 21 banks, banking houses or trust companies at the close of business on the 22 last day of the preceding month, provided, however, that the comptroller 23 shall on or before the last day of June and December make a partial 24 payment consisting of the collections made during and including the 25 first twenty-five days of said months to the commissioner of finance of 26 this city. The amount so payable shall be certified to the comptroller 27 by the president of the tax commission or such president's delegate, who 28 shall not be held liable for any inaccuracy in such certificate. Where 29 the amount so paid over in any such distribution is more or less than 30 the amount then due to this city, the amount of the overpayment or 31 underpayment shall be certified to the comptroller by the president of 32 the tax commission or such president's delegate, who shall not be held 33 liable for any inaccuracy in such certificate. The amount of the over- 34 payment shall be so certified to the comptroller as soon after the 35 discovery of the overpayment or underpayment as reasonably possible and 36 subsequent payments and distributions by the comptroller to this city 37 shall be adjusted by subtracting the amount of any such overpayment from 38 or by adding the amount of any such underpayment to such number of 39 subsequent payments and distributions as the comptroller and the presi- 40 dent of the state tax commission shall consider reasonable in view of 41 the amount of the overpayment or underpayment and all other facts and 42 circumstances. 43 (b) All payments to the commissioner of finance pursuant to subdivi- 44 sion (a) of this section shall be credited to and deposited in the 45 general fund of this city, but no part of such revenues may be expended 46 unless appropriated in the annual budget of this city. 47 § 11-2046 Construction and enforcement. This subchapter shall be 48 construed and enforced in conformity with articles twenty-eight and 49 twenty-nine of the tax law of the state of New York pursuant to which it 50 is enacted. 51 § 11-2047 Effective date. This subchapter shall take effect September 52 first, nineteen hundred seventy-five except that certificates of regis- 53 tration may be filed with the state tax commission and certificates of 54 authority to collect tax may be issued by the state tax commission prior 55 to such date.S. 8474 1032 1 SUBCHAPTER 4 2 ADDITIONAL PARKING TAX 3 § 11-2048 Definitions. (a) "Person" includes an individual, partner- 4 ship, society, association, joint-stock company, corporation, estate, 5 receiver, trustee, assignee, referee, and any other person acting in a 6 fiduciary or representative capacity, whether appointed by a court or 7 otherwise, and any combination of the foregoing. 8 (b) When used in this subchapter for the purpose of the taxes imposed 9 by this subchapter, the following terms shall mean: 10 (1) "Purchaser." A person who purchased property or to whom are 11 rendered services, the receipts from which are taxable under this 12 subchapter. 13 (2) "Receipt." The amount of the sale price of any property and the 14 charge for any service taxable under this subchapter, valued in money, 15 whether received in money or otherwise, including any amount for which 16 credit is allowed by the vendor to the purchaser, without any deduction 17 for expenses or early payment discounts, but excluding any credit for 18 tangible personal property accepted in part payment and intended for 19 resale. 20 (3) "Sale." Any transfer of title or possession or both, exchange or 21 barter, rental, lease or license to use or consume, conditional or 22 otherwise, in any manner or by any means whatsoever for a consideration, 23 or any agreement therefor, including the rendering of any service, taxa- 24 ble under this subchapter, for a consideration or any agreement there- 25 for. 26 (4) "Vendor." A person making sales of tangible personal property or 27 services, the receipts from which are taxed by this subchapter. 28 (5) "Tax commission." Tax commission of the state of New York. 29 (6) "Tax law." Tax law of the state of New York. 30 § 11-2049 Imposition of tax. On and after September first, nineteen 31 hundred eighty, there is hereby imposed within the city of New York, and 32 there shall be paid, a tax at the rate of eight percent on receipts from 33 every sale of the service of providing parking, garaging or storing for 34 motor vehicles by persons operating a garage, other than a garage which 35 is part of premises occupied solely as a private one or two family 36 dwelling, parking lot or other place of business engaged in providing 37 parking, garaging or storing for motor vehicles, in every county within 38 the city of New York with a population density in excess of fifty thou- 39 sand persons per square mile, as determined by reference to the latest 40 federal census; provided, however, that receipts for such services paid 41 to a homeowner's association by its members or receipts paid by members 42 of a homeowner's association to a person leasing the parking facility 43 from the homeowner's association shall not be subject to the tax imposed 44 by this section. For purposes of this section, a homeowner's association 45 is an association, including a cooperative housing or apartment corpo- 46 ration, (i) the membership of which is comprised exclusively of owners 47 or residents of residential dwelling units, including owners of units in 48 a condominium, and including shareholders in a cooperative housing or 49 apartment corporation, where such units are located in a defined 50 geographical area such as a housing development or subdivision; and (ii) 51 which owns or operates a garage, parking lot or other place of business 52 engaged in providing parking, garaging or storing for motor vehicles 53 located in such area for use, whether or not exclusive, by such owners 54 or residents. The tax imposed on the receipts described in this section 55 is in addition to the tax imposed on such receipts under subchapter oneS. 8474 1033 1 of this chapter or section eleven hundred seven of the tax law, as the 2 case may be. 3 § 11-2050 Transitional provisions. The taxes imposed by this subchap- 4 ter shall be paid with respect to receipts from all sales of services on 5 or after September first, nineteen hundred eighty although rendered or 6 agreed to be rendered under a prior contract. Where a service is sold 7 on a monthly, quarterly, yearly or other term basis, the charge for such 8 service shall be subject to tax under this subchapter to the extent that 9 such charge is applicable to any period on or after September first, 10 nineteen hundred eighty, and such charge shall be apportioned on the 11 basis of the ratio of the number of days falling within such period to 12 the total number of days in the full term or period. 13 § 11-2051 Exempt organizations and individuals. (a) Except as other- 14 wise provided in this section, any sale by or to any of the following 15 shall not be subject to the taxes imposed by this subchapter: 16 (1) The state of New York, or any of its agencies, instrumentalities, 17 public corporations, including a public corporation created pursuant to 18 agreement or compact with another state or Canada, or political subdivi- 19 sions where it is the purchaser, user or consumer, or where it is a 20 vendor of services of a kind not ordinarily sold by private persons; 21 (2) The United States of America, and any of its agencies and instru- 22 mentalities, insofar as it is immune from taxation where it is the 23 purchaser, user or consumer or where it sells services of a kind not 24 ordinarily sold by private persons; 25 (3) The United Nations or any international organization of which the 26 United States of America is a member where it is the purchaser, user or 27 consumer, or where it sells services of a kind not ordinarily sold by 28 private persons; 29 (4) Any corporation, association, trust, or community chest, fund or 30 foundation, organized and operated exclusively for religious, charita- 31 ble, scientific, testing for public safety, literary or educational 32 purposes, or to foster national or international amateur sports competi- 33 tion, but only if no part of its activities involve the provision of 34 athletic facilities or equipment, or for the prevention of cruelty to 35 children or animals, no part of the net earnings of which inures to the 36 benefit of any private shareholder or individual, no substantial part of 37 the activities of which is carrying on propaganda, or otherwise attempt- 38 ing to influence legislation, except as otherwise provided in subsection 39 (h) of section five hundred one of the United States internal revenue 40 code of nineteen hundred fifty-four, as amended, and which does not 41 participate in, or intervene in, including the publishing or distribut- 42 ing of statements, any political campaign on behalf of any candidate for 43 public office; 44 (5) A post or organization of past or present members of the armed 45 forces of the United States, or an auxiliary unit or society of, or a 46 trust or foundation for, any such post or organization: 47 (A) organized in this state, 48 (B) at least seventy-five percent of the members of which are past or 49 present members of the armed forces of the United States and substan- 50 tially all of the other members of which are individuals who are cadets 51 or are spouses, widows or widowers of past or present members of the 52 armed forces of the United States or of cadets, and 53 (C) no part of the net earnings of which inures to the benefit of any 54 private shareholder or individual; 55 (6) The following Indian nations or tribes residing in New York state: 56 Cayuga, Oneida, Onondaga, Poospatuck, Saint Regis Mohawk, Seneca, Shin-S. 8474 1034 1 necock, Tonawanda and Tuscarora, where it is the purchaser, user or 2 consumer; 3 (7) A not-for-profit corporation operating as a health maintenance 4 organization subject to the provisions of article forty-four of the 5 public health law; and 6 (8) Cooperative and foreign corporations doing business in this state 7 pursuant to the rural electric cooperative law. 8 (b) Nothing in this section shall exempt sales of the service of 9 providing parking, garaging or storing for motor vehicles by an organ- 10 ization described in paragraph four or paragraph five of subdivision (a) 11 of this section operating a garage, other than a garage which is part of 12 premises occupied solely as a private one-family or two-family dwelling, 13 parking lot or other place of business engaged in providing parking, 14 garaging or storing for motor vehicles. 15 (c) (1) For purposes of paragraph four of subdivision (a) of this 16 section, in the case of a qualified amateur sports organization (A) the 17 requirement of such paragraph that no part of its activities involve the 18 provision of athletic facilities or equipment shall not apply, and (B) 19 such organization shall not fail to meet the requirement of such para- 20 graph merely because its membership is local or regional in nature. 21 (2) For purposes of this subdivision, the term "qualified amateur 22 sports organization" means any organization organized and operated 23 exclusively to foster national or international amateur sports competi- 24 tion if such organization is also organized and operated primarily to 25 conduct national or international competition in sports or to support 26 and develop amateur athletes for national or international competition 27 in sports. 28 (d) The tax imposed by this subchapter shall not apply to any sale of 29 services to an individual resident of the county in which such tax is 30 imposed when such services are rendered on a monthly or longer-term 31 basis at the principal location for the parking, garaging or storing of 32 a motor vehicle owned or leased, but only in the case of a lease for a 33 term of one year or more, by such individual resident. For purposes of 34 this subdivision, the term "individual resident" means a natural person 35 who maintains in such county a permanent place of abode which is such 36 person's primary residence; the term "motor vehicle" means a motor vehi- 37 cle which is registered pursuant to the vehicle and traffic law at the 38 address of the primary residence referred to in this subdivision, or 39 which is registered pursuant to the vehicle and traffic law and leased 40 to an individual resident at the address of the primary residence 41 referred to in this subdivision, and which is not used in carrying on 42 any trade, business or commercial activity; and the term "lease for a 43 term of one year or more" shall not include any lease the term of which 44 is less than one year, irrespective of the fact that the cumulative 45 period for which such lease may be in effect is one year or more as the 46 result of the right to exercise an option to renew or other like 47 provision. 48 § 11-2052 Administration and collection; penalties; refunds. (a) The 49 taxes imposed by this subchapter shall be administered and collected by 50 the tax commission in the same manner as the taxes imposed by article 51 twenty-eight of the tax law are administered and collected by such 52 commission. All of the provisions of such article relating to or appli- 53 cable to the administration and collection of the taxes imposed by that 54 article shall apply to the taxes imposed by this subchapter, including 55 section eleven hundred one and sections eleven hundred thirty-one 56 through eleven hundred forty-seven inclusive, with the same force andS. 8474 1035 1 effect as if those provisions had been incorporated in full into this 2 subchapter and had expressly referred to the taxes imposed by this 3 subchapter, except to the extent that any provisions of such article 4 twenty-eight are either inconsistent with a provision of this subchap- 5 ter, or of article twenty-nine of the tax law, or are not relevant to 6 this subchapter or to article twenty-nine of the tax law. For purposes 7 of this subchapter, the term "tax" in part IV of such article twenty- 8 eight of the tax law shall include the taxes imposed by this subchapter. 9 (b) Notwithstanding subdivision (a) of this section or any other 10 provision of law to the contrary, the tax commission shall, subject to 11 such terms and conditions as it may consider necessary, delegate to the 12 commissioner of finance the power and authority to develop and adminis- 13 ter reasonable and necessary procedures, including the use of exemption 14 certificates for presentation to vendors, for determining entitlement to 15 exemption from tax under subdivision (d) of section 11-2051 of this 16 subchapter, and to prescribe, subject to the approval of the tax commis- 17 sion, rules and regulations necessary and appropriate in carrying out 18 such responsibilities. 19 (c) Any person who, in violation of any provision of subdivision (d) 20 of section 11-2051 of this subchapter or any rule or regulation promul- 21 gated thereunder, obtains or uses a certificate of exemption relating to 22 the exemption allowed by such subdivision, shall, if such violation was 23 due to negligence or intentional disregard of such provision or rule or 24 regulation, but without intent to defraud, be liable for a penalty of 25 not more than one hundred dollars for each such violation, and, if such 26 violation was due to fraud, be liable for a penalty of not more than 27 five hundred dollars for each such violation. The commissioner of 28 finance shall have the power, in his or her discretion, to waive, reduce 29 or compromise any penalty imposed pursuant to this subdivision. The 30 penalties authorized by this subdivision shall be in addition to any 31 penalty provided by section eleven hundred forty-five of the tax law, 32 and shall be paid and disposed of, and, if unpaid, shall be determined, 33 assessed, collected and enforced, in the same manner as the taxes 34 imposed by this subchapter. 35 (d) Notwithstanding subdivision (d) of section 11-2051 of this 36 subchapter, section eleven hundred thirty-nine of the tax law or any 37 other provision of law to the contrary, an individual resident shall not 38 be entitled to a refund or credit with respect to any amount of tax 39 which was paid to a vendor prior to the date such individual resident 40 presented to the vendor a valid certificate of exemption from such tax. 41 § 11-2053 Deposit and disposition of revenue. (a) The tax commission 42 shall deposit daily to the credit of the comptroller of the state of New 43 York, all taxes, penalties and interest collected under this subchapter 44 in such responsible banks, banking houses or trust companies as may be 45 designated by the comptroller. Such deposits shall be kept in trust for 46 the city and separate and apart from all other monies in the possession 47 of the comptroller. The comptroller shall require adequate security 48 from all such depositories. Of the revenue collected under this 49 subchapter the comptroller shall retain in his or her hands such amount 50 as the commissioner of taxation and finance of the state of New York may 51 determine to be necessary for refunds under this subchapter and for 52 reasonable costs of the tax commission in administering, collecting and 53 distributing the taxes under this subchapter, out of which the comp- 54 troller shall pay any refunds made under the provisions of this subchap- 55 ter. The comptroller, after reserving such refund fund and such costs 56 shall, on or before the twelfth day of each month, pay to the commis-S. 8474 1036 1 sioner of finance of this city all taxes, interest and penalties 2 collected under this subchapter during the next preceding calendar month 3 and remaining to the comptroller's credit in such banks, banking houses 4 or trust companies at the close of business on the last day of such 5 preceding month, provided, however, that the comptroller shall on or 6 before the last day of June and December make a partial payment consist- 7 ing of the collections made during and including the first twenty-five 8 days of said months to the commissioner of finance of this city. The 9 amount so payable shall be certified to the comptroller by the president 10 of the tax commission or such president's delegate, who shall not be 11 held liable for any inaccuracy in such certificate. Provided, however, 12 any such certification may be based on such information as may be avail- 13 able to the tax commission at the time such certificate must be made 14 under this section and may be estimated on the basis of percentages or 15 other indices calculated from distributions for prior periods. Where the 16 amount so paid over in any such distribution is more or less than the 17 amount then due to this city, the amount of the overpayment or underpay- 18 ment shall be certified to the comptroller by the president of the tax 19 commission or such president's delegate, who shall not be held liable 20 for any inaccuracy in such certificate. The amount of the overpayment or 21 underpayment shall be so certified to the comptroller as soon after the 22 discovery of the overpayment or underpayment as reasonably possible and 23 subsequent payments and distributions by the comptroller to this city 24 shall be adjusted by subtracting the amount of any such overpayment from 25 or by adding the amount of any such underpayment to such number of 26 subsequent payments and distributions as the comptroller and the presi- 27 dent of the tax commission shall consider reasonable in view of the 28 amount of the overpayment or underpayment and all other facts and 29 circumstances. 30 (b) All payments to the commissioner of finance pursuant to subdivi- 31 sion (a) of this section shall be credited to and deposited in the 32 general fund of this city. 33 § 11-2054 Construction and enforcement. This subchapter shall be 34 construed and enforced in conformity with articles twenty-eight and 35 twenty-nine of the tax law of the state of New York pursuant to which it 36 is enacted. 37 SUBCHAPTER 5 38 TAX ON BEER AND LIQUOR 39 § 11-2055 Definitions. When used in this subchapter the following 40 terms shall mean or include: 41 1. "Person." An individual, partnership, society, association, 42 corporation, joint-stock company, and any combination of individuals, 43 and also an executor, administrator, receiver, trustee or other fiduci- 44 ary. 45 2. "Alcohol." Ethyl alcohol, hydrated oxide of ethyl or spirit of 46 wine, from whatever source or by whatever process produced. 47 3. "Beers." All alcoholic beer, lager beer, ale, porter, and stout, 48 and all other fermented beverages of any name or description manufac- 49 tured from malt, wholly or in part, or from any substitute therefor 50 containing one-half of one per centum, or more, of alcohol by volume. 51 4. "Liquors." Any and all distilled or rectified spirits, alcohol, 52 brandy, cordial, whether the base therefor be wine or liquor, whiskey, 53 rum, gin and all other distilled beverages containing alcohol, including 54 all dilutions and mixtures of one or more of such liquids, including anyS. 8474 1037 1 alcoholic liquids which would be wines if the alcoholic content thereof 2 were not more than twenty-four per centum by volume. Such term shall not 3 include liquors containing not more than twenty-four per centum of alco- 4 hol by volume. 5 5. "Alcoholic beverages." Beer or liquors. 6 6. "Distributor." Any person who imports or causes to be imported into 7 this city any alcoholic beverages which are or will be offered for sale 8 or used for any commercial purpose; any purchaser of warehouse receipts 9 for alcoholic beverages stored in a warehouse in this city who causes 10 such beverages to be removed from such warehouse; and also any person 11 who produces, distills, manufactures, brews, compounds, mixes or 12 ferments any alcoholic beverages within this city for sale, except: (a) 13 a person who manufactures, mixes or compounds alcoholic beverages the 14 ingredients of which consist only of alcoholic beverages on which the 15 taxes imposed by this subchapter have been paid, and (b) a person who 16 mixes or compounds alcoholic beverages with non-alcoholic ingredients 17 for sale and immediate consumption on the premises, who shall be a 18 distributor only with respect to the ingredients which consist of alco- 19 holic beverages upon which the taxes imposed by this subchapter have not 20 been paid. 21 7. "Noncommercial importer." A person other than a distributor who 22 imports or causes to be imported into this city alcoholic beverages, 23 except that such person shall not be a noncommercial importer where he 24 or she imports or causes to be imported into this city alcoholic bever- 25 ages in the quantities and under the conditions provided by subdivision 26 (e) of section 11-2056 of this subchapter. 27 8. "Sale." Any transfer, exchange or barter in any manner or by any 28 means whatsoever. The sale of warehouse receipts given upon the storage 29 of alcoholic beverages shall not be construed as a sale of the beverages 30 represented by such receipts. 31 9. "Use." Any compounding or mixing of alcoholic beverages with other 32 ingredients or other treatment of the same in such manner as to render 33 them unfit or unsuitable for consumption as a beverage and also the 34 actual consumption or possession for consumption of alcoholic beverages 35 as a beverage or otherwise. 36 10. "Gallon." One hundred twenty-eight fluid ounces; "quart" means 37 thirty-two fluid ounces. 38 11. "Liter." A metric unit of capacity equal to one thousand cubic 39 centimeters of alcoholic beverages and equivalent to thirty-three and 40 eight hundred fourteen thousandths fluid ounces. 41 12. "City." The city of Staten Island. 42 13. "Commissioner of finance." Commissioner of finance of the city. 43 14. "Tax commission." The tax commission of the state of New York. 44 15. Unless a different meaning is clearly required, any term used in 45 this subchapter shall have the same meaning as when used in a comparable 46 context in the laws of the state of New York relating to taxes on alco- 47 holic beverages. 48 § 11-2056 Imposition of tax. (a) There are hereby imposed on a 49 distributor and a noncommercial importer excise taxes at the following 50 rates: 51 (1) twelve cents per gallon upon beers; and 52 (2) twenty-six and four-tenths cents per liter upon liquors, when sold 53 or used within this city, except when sold or used under such circum- 54 stances that this city is without power to impose such tax or when sold 55 to the United States, and except beers when sold to or by a voluntary 56 unincorporated organization of the armed forces of the United StatesS. 8474 1038 1 operating a place for the sale of goods pursuant to regulations promul- 2 gated by the appropriate executive agency of the United States, and 3 except when sold to professional foreign consuls-general, consuls and 4 vice-consuls who are nationals of the state appointing them and who are 5 assigned to foreign consulates in this city provided that American 6 consular officers of equal rank who are citizens of the United States 7 and who exercise their official functions at American consulates in such 8 foreign country are granted reciprocal exemptions; provided, however, 9 that the tax commission may permit the sale of alcohol without tax to a 10 holder of any industrial alcohol permit, alcohol permit or alcohol 11 distributor's permit, issued by the state liquor authority, and by the 12 holder of an alcohol distributor's permit, class A, issued by such 13 authority to a holder of a distiller's license, class B, or a winery 14 license, issued by such authority and may also permit the use of alcohol 15 for any purpose other than the production of alcoholic beverages by such 16 holders without tax. 17 Notwithstanding any other provision of this subchapter, the tax 18 commission may permit the purchase of liquors without tax by a holder of 19 a distiller's license issued by the state liquor authority from another 20 holder of a distiller's license by such authority, in which event the 21 liquors so purchased shall be subject to the tax imposed by this 22 subchapter in the hands of the purchaser in the same manner and to the 23 same extent as if such purchaser had imported or caused the same to be 24 imported into this city or had produced, distilled, manufactured, 25 brewed, compounded, mixed or fermented the same within this city. 26 (b) There is also imposed on each person, other than a distributor 27 within the meaning of this subchapter, who, on August first, nineteen 28 hundred eighty, owns and possesses for the purposes of sale beers or 29 liquors, a floor tax at the rates applicable under subdivision (a) upon 30 such beer in excess of one hundred gallons and upon such liquor in 31 excess of four hundred liters. Such floor tax shall be due and payable 32 on the twentieth day of the month succeeding the month of August, nine- 33 teen hundred eighty. 34 (c) If, prior to August first, nineteen hundred eighty, a contract of 35 sale of alcoholic beverages was made, and delivery thereof pursuant to 36 such contract is made within this city on or after August first, nine- 37 teen hundred eighty, the vendor shall be deemed a distributor for the 38 purposes of this subchapter, and such alcoholic beverages shall be 39 deemed to be sold, and shall be subject to such taxes, at the time of 40 such delivery. 41 (d) In any case where the quantity of alcoholic beverages taxable 42 pursuant to this subchapter is a fractional part of one liter, or one 43 gallon in the case of beers, or an amount greater than a whole multiple 44 of liters, or gallons in the case of beers, the amount of tax levied and 45 imposed on such fractional part of one liter, or one gallon in the case 46 of beers, or fractional part of a liter, or gallon, in excess of a whole 47 multiple of liters or gallons shall be such fractional part of the rate 48 imposed by subdivisions (a) and (b) of this section. 49 (e) Notwithstanding any other provisions of this subchapter, there 50 shall be exempt from the taxes imposed under this subchapter, per month, 51 one quart of alcoholic beverages, or one gallon of such beverages in the 52 case of a person arriving directly from American Samoa, Guam or the 53 Virgin Islands of the United States not more than one quart of which 54 shall have been acquired elsewhere than in such insular possessions: 55 (1) purchased outside this city as an incident to a journey from which 56 the purchaser is returning andS. 8474 1039 1 (2) not to be offered for sale or used for any commercial purpose, 2 provided such alcoholic beverages accompany such person on his or her 3 return to this city and provided, further, that in the case of a person 4 arriving in this city from other than a state of the United States, 5 including the District of Columbia, the Virgin Islands of the United 6 States or a contiguous country maintaining a free zone or free port, 7 such person shall have remained beyond the territorial limits of the 8 United States for a period of not less than forty-eight hours. 9 Provided, however, where the amounts purchased outside the city or 10 brought in exceed the amounts specified in this subdivision but are not 11 in excess of one liter in the case of the references to one quart or 12 four liters in the case of the reference to one gallon, and where no 13 duty is required by the laws of the United States to be paid on such 14 amounts, such metric standards of fill shall be substituted for one 15 quart and one gallon, respectively, and such amounts shall be exempt 16 from tax under the conditions provided for in this subdivision. 17 § 11-2057 Manner of administration and collection. All the provisions 18 of article eighteen of the tax law shall apply to the taxes imposed by 19 subdivision (a) of section 11-2056 of this subchapter, and the 20 provisions of sections four hundred twenty, four hundred twenty-six, 21 four hundred twenty-nine through four hundred thirty-four, four hundred 22 thirty-six and four hundred thirty-seven of the tax law shall apply to 23 the tax imposed by subdivision (b) of section 11-2056 of this subchap- 24 ter, so far as such sections can be made applicable to the taxes imposed 25 by this subchapter with such limitations as set forth in section four 26 hundred forty-five of the tax law and such modifications as may be 27 necessary in order to adapt such language to the taxes imposed by this 28 subchapter. 29 § 11-2058 State tax commission; administration. The taxes imposed by 30 this subchapter shall be administered and collected by the tax commis- 31 sion in the same manner as the taxes imposed under sections four hundred 32 twenty-four and four hundred twenty-five of the tax law subject to all 33 provisions of that article as may be applicable. The tax commission may 34 make such provisions as it deems necessary for the joint administration 35 and collection of the state and local taxes imposed and authorized by 36 article eighteen of the tax law and this subchapter. Nothing in such 37 article eighteen or this subchapter which requires payment of both state 38 and local taxes to the tax commission shall be construed as the payment 39 of either tax more than once. 40 § 11-2059 Disposition of revenues. All taxes, penalties and interest 41 imposed by this subchapter, which are collected by the tax commission, 42 shall be deposited daily with such responsible banks, banking houses or 43 trust companies, as may be designated by the state comptroller, to the 44 credit of the comptroller, in trust for this city. Such deposits shall 45 be kept in trust and separate and apart from all other monies in the 46 possession of the comptroller. The comptroller shall require adequate 47 security from all such depositories of such revenues collected by the 48 tax commission. The comptroller shall retain in his or her hands such 49 amount as the commissioner of taxation and finance may determine to be 50 necessary for refunds in respect of the taxes imposed by this subchap- 51 ter, and for reasonable costs of the state tax commission in administer- 52 ing, collecting and distributing such taxes, out of which the comp- 53 troller shall pay any refunds of such taxes to which taxpayers shall be 54 entitled under the provisions of this subchapter. The comptroller, after 55 reserving such refund and such costs shall, on or before the twelfth day 56 of each month, pay to the commissioner of finance the taxes, penaltiesS. 8474 1040 1 and interest imposed by this subchapter, collected by the state tax 2 commission pursuant to this subchapter during the next preceding calen- 3 dar month. The amount so payable shall be certified to the comptroller 4 by the president of the state tax commission or his or her delegate, who 5 shall not be held liable for any inaccuracy in such certificate. Where 6 the amount so paid over to the city in any such distribution is more or 7 less than the amount then due to the city, the amount of the overpayment 8 or underpayment shall be certified to the comptroller by the president 9 of the state tax commission or his or her delegate, who shall not be 10 held liable for any inaccuracy in such certificate. The amount of the 11 overpayment or underpayment shall be so certified to the comptroller as 12 soon after the discovery of the overpayment or underpayment as reason- 13 ably possible and subsequent payments and distributions by the comp- 14 troller to the city shall be adjusted by subtracting the amount of any 15 such overpayment from or by adding the amount of any such underpayment 16 to such number of subsequent payments and distributions as the comp- 17 troller and the president of the state tax commission shall consider 18 reasonable in view of the amount of the overpayment or underpayment and 19 all other facts or circumstances. 20 § 11-2060 Construction. This subchapter shall be construed and 21 enforced in conformity with section four hundred forty-five of the tax 22 law, pursuant to which it is enacted. 23 CHAPTER 21 24 REAL PROPERTY TAX 25 § 11-2101 Definitions. When used in this chapter the following terms 26 shall mean or include: 27 1. "Person." An individual, partnership, society, association, joint 28 stock company, corporation, estate, receiver, trustee, assignee, referee 29 or any other person acting in a fiduciary or representative capacity, 30 whether appointed by a court or otherwise, any combination of individ- 31 uals, and any other form of unincorporated enterprise owned or conducted 32 by two or more persons. 33 2. "Deed." Any document or writing, other than a will, regardless of 34 where made, executed or delivered, whereby any real property or interest 35 therein is created, vested, granted, bargained, sold, transferred, 36 assigned or otherwise conveyed, including any such document or writing 37 whereby any leasehold interest in real property is granted, assigned or 38 surrendered. 39 3. "Instrument." Any document or writing, other than a deed or a will, 40 regardless of where made, executed or delivered, whereby any economic 41 interest in real property is transferred. 42 4. "Transaction." Any act or acts, regardless of where performed, and 43 whether or not reduced to writing, unless evidenced by a deed or instru- 44 ment, whereby any economic interest in real property is transferred, 45 other than a transfer pursuant to the laws of intestate succession. 46 5. "Real property." Every estate or right, legal or equitable, present 47 or future, vested or contingent, in lands, tenements or hereditaments, 48 which are located in whole or in part within the city of Staten Island. 49 It shall not include a mortgage, a release of mortgage or, for purposes 50 of paragraph three and subparagraphs (ii) and (iii) of paragraph seven 51 of subdivision a of section 11-2102 of this chapter, a leasehold inter- 52 est in a one, two or three-family house or an individual dwelling unit 53 in a dwelling which is to be occupied or is occupied as the residence orS. 8474 1041 1 home of four or more families living independently of each other. It 2 shall not include rights to sepulture. 3 6. "Economic interest in real property." The ownership of shares of 4 stock in a corporation which owns real property; the ownership of an 5 interest or interests in a partnership, association or other unincorpo- 6 rated entity which owns real property; and the ownership of a beneficial 7 interest or interests in a trust which owns real property. 8 7. "Transfer" or "transferred." When used in relation to an economic 9 interest in real property, the terms "transfer" or "transferred" shall 10 include the transfer or transfers or issuance of shares of stock in a 11 corporation, interest or interests in a partnership, association or 12 other unincorporated entity, or beneficial interest in a trust, whether 13 made by one or several persons, or in one or several related trans- 14 actions, which shares of stock or interest or interests constitute a 15 controlling interest in such corporation, partnership, association, 16 trust or other entity. 17 8. "Controlling interest." In the case of a corporation, fifty percent 18 or more of the total combined voting power of all classes of stock of 19 such corporation, or fifty percent or more of the total fair market 20 value of all classes of stock of such corporation; and, in the case of a 21 partnership, association, trust or other entity, fifty percent or more 22 of the capital, profits or beneficial interest in such partnership, 23 association, trust or other entity. 24 9. "Consideration." The price actually paid or required to be paid for 25 the real property or economic interest therein, without deduction for 26 mortgages, liens or encumbrances, whether or not expressed in the deed 27 or instrument and whether paid or required to be paid by money, proper- 28 ty, or any other thing of value. It shall include the cancellation or 29 discharge of an indebtedness or obligation. It shall also include the 30 amount of any mortgage, lien or other encumbrance, whether or not the 31 underlying indebtedness is assumed. 32 10. "Net consideration." Any consideration, exclusive of any mortgage 33 or other lien or encumbrance on the real property or interest therein 34 which existed before the delivery of the deed and remains thereon after 35 the delivery of the deed. 36 11. "Comptroller." The comptroller of the city of Staten Island. 37 12. "Commissioner of finance." The commissioner of finance of the city 38 of Staten Island. 39 13. "City." The city of Staten Island. 40 14. "Grantor." The person or persons making, executing or delivering 41 the deed. The term "grantor" also includes the entity with an interest 42 in real property or the person or persons who transfer an economic 43 interest in real property. 44 15. "Grantee." The person or persons accepting the deed or who obtain 45 any of the real property which is the subject of the deed or any inter- 46 est therein. The term "grantee" also includes the person or persons to 47 whom an economic interest in real property is transferred. 48 16. "Affixed." Includes attached or annexed by adhesion, stapling or 49 otherwise, or a notation by stamp, imprint or writing. 50 17. "Register." Includes the city register and the county clerk of the 51 county of Richmond. 52 18. "Tax appeals tribunal." The tax appeals tribunal established by 53 section one hundred sixty-eight of the charter of the preceding munici- 54 pality as it existed January first, nineteen hundred ninety-four. 55 § 11-2102 Imposition of tax. a. A tax is hereby imposed on each deed 56 at the time of delivery by a grantor to a grantee when the considerationS. 8474 1042 1 for the real property and any improvement thereon, whether or not 2 included in the same deed, exceeds twenty-five thousand dollars. The tax 3 shall be: 4 (1) at the rate of one-half of one per centum of the net consideration 5 with respect to conveyances made before July first, nineteen hundred 6 seventy-one, or made in performance of a contract therefor executed 7 before such date; 8 (2) at the rate of one percent of such net consideration with respect 9 to 10 (i) all conveyance made on or after July first, nineteen hundred 11 seventy-one and before February first, nineteen hundred eighty-two, or 12 made in performance of a contract therefor executed during such period; 13 (ii) conveyances made on or after February first, nineteen hundred 14 eighty-two and before July first, nineteen hundred eighty-two of one, 15 two or three-family houses and individual residential condominium units, 16 and 17 (iii) conveyances made on or after February first, nineteen hundred 18 eighty-two and before July first, nineteen hundred eighty-two where the 19 consideration is less than five hundred thousand dollars, other than 20 grants, assignments or surrenders of leasehold interests in real proper- 21 ty taxable under paragraph three of this subdivision; 22 (3) at the rate of one percent of the consideration with respect to 23 grants, assignments or surrenders of leasehold interests in real proper- 24 ty made on or after February first, nineteen hundred eighty-two and 25 before July first, nineteen hundred eighty-two where the consideration 26 if five hundred thousand dollars or more, provided however, that for 27 purposes of this paragraph the amount subject to tax in the case of a 28 grant of a leasehold interest in real property shall be only such amount 29 as is not considered rent for purposes of the tax imposed by chapter 30 seven of this title; 31 (4) at the rate of two percent of the consideration with respect to 32 all other conveyances made on or after February first, nineteen hundred 33 eighty-two and before July first, nineteen hundred eighty-two, except 34 that, for purposes of this paragraph, where the consideration includes 35 the amount of any mortgage or other lien or encumbrance on the real 36 property or interest therein which existed before the delivery of the 37 deed and remains thereon after the delivery of the deed, the portion of 38 the consideration ascribable to such mortgage, lien or encumbrance shall 39 be taxed at the rate of one percent, and only the balance of such 40 consideration shall be taxed at the rate of two percent; 41 (5) at the rate of one percent of the consideration with respect to 42 conveyances made on or after July first, nineteen hundred eighty-two and 43 before August first, nineteen hundred eighty-nine of one, two or three- 44 family houses and individual residential condominium units; 45 (6) at the rate of one percent of the consideration with respect to 46 conveyances made on or after July first, nineteen hundred eighty-two and 47 before August first, nineteen hundred eighty-nine where the consider- 48 ation is less than five hundred thousand dollars, other than grants, 49 assignments or surrenders of leasehold interests in real property taxa- 50 ble as hereafter provided; 51 (7) (i) at the rate of one percent of the consideration with respect 52 to a grant, assignment or surrender, made on or after July first, nine- 53 teen hundred eighty-two and before August first, nineteen hundred eight- 54 y-nine, of a leasehold interest in a one, two or three-family house or 55 an individual dwelling unit in a dwelling which is to be occupied or isS. 8474 1043 1 occupied as the residence or home of four or more families living inde- 2 pendently of each other, 3 (ii) at the rate of one percent of the consideration with respect to 4 grants, assignments or surrenders of leasehold interests in real proper- 5 ty made on or after July first, nineteen hundred eighty-two and before 6 August first, nineteen hundred eighty-nine where the consideration is 7 less than five hundred thousand dollars, or 8 (iii) at the rate of two percent of the consideration with respect to 9 grants, assignments or surrenders of leasehold interests in real proper- 10 ty made on or after July first, nineteen hundred eighty-two and before 11 August first, nineteen hundred eighty-nine where the consideration is 12 five hundred thousand dollars or more; 13 (iv) provided, however, that for purposes of subparagraphs (i), (ii) 14 and (iii) of this paragraph, the amount subject to tax in the case of a 15 grant of a leasehold interest shall be only such amount as is not 16 considered rent for purposes of the tax imposed by chapter seven of this 17 title; and 18 (8) at the rate of two percent of the consideration with respect to 19 all other conveyances made on or after July first, nineteen hundred 20 eighty-two and before August first, nineteen hundred eighty-nine; 21 (9) with respect to conveyances made on or after August first, nine- 22 teen hundred eighty-nine, other than grants, assignments or surrenders 23 of leasehold interests in real property taxable as provided in paragraph 24 ten of this subdivision, the tax shall be at the following rates: 25 (i) at the rate of one percent of the consideration for conveyances of 26 one, two or three-family houses and individual residential condominium 27 units where the consideration is five hundred thousand dollars or less, 28 and at the rate of one and four hundred twenty-five thousandths of one 29 percent of the consideration for such conveyances where the consider- 30 ation is more than five hundred thousand dollars, and 31 (ii) at the rate of one and four hundred twenty-five thousandths of 32 one percent of the consideration with respect to all other conveyances 33 where the consideration is five hundred thousand dollars or less, and at 34 the rate of two and six hundred twenty-five thousandths of one percent 35 where the consideration for such conveyances is more than five hundred 36 thousand dollars; 37 (10) With respect to a grant, assignment or surrender of a leasehold 38 interest in real property made on or after August first, nineteen 39 hundred eighty-nine, the tax shall be at the following rates: 40 (i) at the rate of one percent of the consideration for the granting, 41 assignment or surrender of a leasehold interest in a one, two or three- 42 family house or an individual dwelling unit in a dwelling which is to be 43 occupied or is occupied as the residence or home of four or more fami- 44 lies living independently of each other where the consideration is five 45 hundred thousand dollars or less, and at the rate of one and four 46 hundred twenty-five thousandths of one percent of the consideration 47 where the consideration for granting, assignment or surrender or such 48 leasehold interest is more than five hundred thousand dollars; and 49 (ii) at the rate of one and four hundred twenty-five thousandths of 50 one percent of the consideration for the granting, assignment or surren- 51 der of a leasehold interest in all other real property where the consid- 52 eration is five hundred thousand dollars or less, and at the rate of two 53 and six hundred twenty-five thousandths of one percent of the consider- 54 ation where the consideration for the granting, assignment or surrender 55 of such a leasehold interest is more than five hundred thousand dollars; 56 andS. 8474 1044 1 (iii) provided, however, that for purposes of subparagraphs (i) and 2 (ii) of this paragraph, the amount subject to tax in the case of a grant 3 of a leasehold interest shall be only such amount as is not considered 4 rent for purposes of the tax imposed by chapter seven of this title. 5 Where any real property is situated partly within and partly without 6 the boundaries of the city of Staten Island the consideration and net 7 consideration subject to tax shall be such part of the total consider- 8 ation and total net consideration attributable to that portion of such 9 real property situated within the city of Staten Island or to the inter- 10 est in such portion. 11 b. (1) In addition to the taxes imposed by subdivision a of this 12 section, there is hereby imposed a tax on each instrument or trans- 13 action, unless evidenced by a deed subject to tax under subdivision a of 14 this section, at the time of the transfer, whereby any economic interest 15 in real property is transferred by a grantor to a grantee, where the 16 consideration exceeds twenty-five thousand dollars. 17 (A) With respect to such transfers made on or after July thirteenth, 18 nineteen hundred eighty-six and before August first, nineteen hundred 19 eighty-nine, the tax shall be (i) at the rate of one percent of the 20 consideration where the real property the economic interest in which is 21 transferred is a one, two or three-family house, an individual cooper- 22 ative apartment, an individual residential condominium unit or an indi- 23 vidual dwelling unit in a dwelling which is to be occupied or is occu- 24 pied as the residence or home of four or more families living 25 independently of each other, or where the consideration for the transfer 26 is less than five hundred thousand dollars, and (ii) at the rate of two 27 percent of the consideration with respect to all other transfers. 28 (B) With respect to such transfers made on or after August first, 29 nineteen hundred eighty-nine, the tax shall be at the following rates: 30 (i) at the rate of one percent of the consideration where the real 31 property, the economic interest in which is transferred, is a one, two 32 or three-family house, an individual cooperative apartment, an individ- 33 ual residential condominium unit or an individual dwelling unit in a 34 dwelling which is to be occupied or is occupied as the residence or home 35 of four or more families living independently of each other and where 36 the consideration for such transfer of an economic interest in such real 37 property is five hundred thousand dollars or less, and at the rate of 38 one and four hundred twenty-five thousandths of one percent of the 39 consideration where the consideration for such transfer of an economic 40 interest in such property is more than five hundred thousand dollars, 41 and 42 (ii) at the rate of one and four hundred twenty-five thousandths of 43 one percent of the consideration with respect to all other transfers of 44 an economic interest in real property where the consideration is five 45 hundred thousand dollars or less, and at the rate of two and six hundred 46 twenty-five thousandths of one percent of the consideration where the 47 consideration for such transfers is more than five hundred thousand 48 dollars. 49 (C) Where any real property, the economic interest in which is trans- 50 ferred, is situated partly within and partly without the boundaries of 51 the city of Staten Island, the consideration subject to tax shall be 52 such part of the consideration as is attributable to that portion of 53 such real property which is situated within the city of Staten Island. 54 (2) Notwithstanding the definition of "controlling interest" contained 55 in subdivision eight of section 11-2101 of this chapter or anything to 56 the contrary contained in subdivision seven of such section, in the caseS. 8474 1045 1 of any transfer of shares of stock in a cooperative housing corporation 2 in connection with the grant or transfer of a proprietary leasehold, the 3 tax imposed by this subdivision shall apply to (i) the original transfer 4 of such shares of stock by the cooperative corporation or cooperative 5 plan sponsor, and (ii) any subsequent transfer of such shares of stock 6 by the owner thereof. Notwithstanding any provision of this chapter to 7 the contrary, in the case of a transfer described in clause (ii) of this 8 subparagraph which relates to an individual residential unit, the 9 consideration for such transfer shall not include any portion of the 10 unpaid principal of any mortgage on the real property of the cooperative 11 housing corporation. In determining the tax on a transfer described in 12 clause (i) of this subparagraph, a credit shall be allowed for a propor- 13 tionate part of the amount of any tax paid upon the conveyance to the 14 cooperative housing corporation of the land and building or buildings 15 comprising the cooperative dwelling or dwellings. Such proportionate 16 part shall be the amount determined by multiplying the amount of tax 17 paid upon the conveyance to the cooperative housing corporation by a 18 fraction, the numerator of which shall be the number of shares of stock 19 transferred in a transaction described in clause (i) of this subpara- 20 graph and the denominator of which shall be the total number of 21 outstanding shares of stock of the cooperative housing corporation, 22 including any stock held by the corporation. In no event, however, shall 23 such credit reduce the tax on a transfer described in clause (i) of this 24 subparagraph below zero, nor shall any such credit be allowed for any 25 tax paid more than twenty-four months prior to the date on which occurs 26 the first in a series of transfers of shares of stock in an offering of 27 cooperative housing corporation shares described in clause (i) of this 28 subparagraph. For purposes of this paragraph, the term "cooperative 29 housing corporation" shall not include a housing company organized and 30 operating pursuant to the provisions of article two, four, five or elev- 31 en of the private housing finance law. 32 (3) Notwithstanding the definition of "controlling interest" contained 33 in paragraph eight of section 11-2101 of this chapter or anything to the 34 contrary contained in paragraph seven of such section, in the case of a 35 corporation, other than a cooperative housing corporation, partnership, 36 association, trust or other entity formed for the purpose of cooperative 37 ownership of real property, the tax imposed by this subdivision shall 38 apply to each transfer of shares of stock in such corporation, interest 39 in such partnership, association or other entity or beneficial interest 40 in such trust, in connection with the grant or transfer of a proprietary 41 leasehold. Notwithstanding any provision of this chapter to the contra- 42 ry, in the case of a transfer described in this paragraph which relates 43 to an individual residential unit, other than the original transfer of 44 such a unit by the cooperative entity or cooperative plan sponsor, the 45 consideration for such transfer shall not include any portion of the 46 unpaid principal of any mortgage on the real property of such corpo- 47 ration, partnership, association, trust or other entity. Notwithstanding 48 any other provision of law to the contrary, all revenues arising from 49 the tax imposed pursuant to this paragraph shall be credited to and 50 deposited in the general fund of the city, but no part of such revenues 51 may be expended unless appropriated in the annual budget of the city. 52 c. (1) Anything to the contrary notwithstanding, in the case of any 53 conveyance or transfer of real property or any economic interest therein 54 in complete or partial liquidation of a corporation, partnership, asso- 55 ciation, trust or other entity, the taxes imposed by this section shall 56 be measured by (i) the consideration for such conveyance or transfer, orS. 8474 1046 1 (ii) the value of the real property or economic interest therein, which- 2 ever is greater. 3 (2) If, within twenty-four months following the transfer of an econom- 4 ic interest in real property which is subject to the tax imposed by this 5 chapter, the corporation, partnership, association, trust or other enti- 6 ty owning the real property the economic interest in which was so trans- 7 ferred, is liquidated, and such real property is conveyed to the grantee 8 or grantees of such economic interest, a credit shall be allowed against 9 the tax imposed by this chapter upon such conveyance in liquidation to 10 such grantee or grantees. The amount of such credit shall be equal to 11 the amount of the tax paid upon the prior transfer of the economic 12 interest in such real property, but shall in no event be greater than 13 the tax payable upon the conveyance in liquidation. 14 d. In the case of a transfer of an economic interest in any entity 15 that owns assets in addition to real property or interest therein, the 16 consideration subject to tax shall be deemed equal to the fair market 17 value of the real property or interest therein apportioned based on the 18 percentage of the ownership interest in the entity transferred. 19 e. (1) Notwithstanding anything contained in this section, the tax 20 imposed under subdivisions a and b of this section on any deed or other 21 instrument or transaction conveying or transferring real property or an 22 economic interest therein, that qualifies as a real estate investment 23 trust transfer, as defined below, shall be imposed at a rate equal to 24 fifty percent of the otherwise applicable rate. 25 (2) For purposes of this subdivision, a real estate investment trust 26 transfer shall mean (A) any deed or other instrument or transaction 27 conveying or transferring real property or an economic interest therein 28 to a real estate investment trust as defined in section eight hundred 29 fifty-six of the internal revenue code (a "REIT") or to a partnership or 30 corporation in which a REIT owns a controlling interest immediately 31 following the transaction; and (B) any issuance or transfer of an inter- 32 est in a REIT, or in a partnership or corporation in which a REIT owns a 33 controlling interest immediately following the issuance or transfer in 34 connection with a transaction described in subparagraph (A) of this 35 paragraph. 36 Provided, however, a transaction described in the opening paragraph 37 of this paragraph shall not constitute a real estate investment trust 38 transfer unless (i) it occurs in connection with the initial formation 39 of the REIT and the conditions described in subparagraphs (C) and (D) of 40 this paragraph are satisfied, or (ii) in the case of any real estate 41 investment trust transfer occurring on or after July thirteenth, nine- 42 teen hundred ninety-six and before September first, two thousand twen- 43 ty-six, the transaction is described in subparagraph (E) of this para- 44 graph in which case the provision of such subparagraph shall apply. 45 (C) The value of the ownership interests in the REIT, or in a partner- 46 ship or corporation in which the REIT owns a controlling interest, 47 received by the grantor as consideration for such conveyance or transfer 48 must be equal to an amount not less than forty percent of the value of 49 the equity interest in the real property or economic interest therein 50 conveyed or transferred by the grantor to the grantee and such ownership 51 interests must be retained by the grantor or owners of the grantor for a 52 period of not less than two years following the date of such conveyance 53 or transfer; provided, however, that in the case of the death of the 54 grantor or an owner of the grantor within such two year period, this two 55 year retention requirement shall be deemed to be satisfied notwithstand- 56 ing any conveyance or transfer of such ownership interests held by suchS. 8474 1047 1 individual as a result of such death. The value of the equity interest 2 in such real property or economic interest therein shall be computed by 3 subtracting from the consideration for the conveyance or transfer of the 4 real property or economic interest therein the unpaid balance of any 5 loans secured by mortgages or other encumbrances which are liens on the 6 real property or economic interest therein immediately before the 7 conveyance or transfer. For purposes of this computation, in the case of 8 a conveyance or transfer of real property other than a conveyance or 9 transfer of an economic interest in real property, the amount of the 10 unpaid balance of any loans secured by mortgages or other encumbrances 11 to be subtracted from consideration is determined by multiplying the 12 total unpaid balance of any loans secured by mortgages or other encum- 13 brances on the real property by the percentage of the ownership interest 14 in the real property being conveyed or transferred to the grantee. In 15 the case of a transfer of an economic interest in real property, such 16 amount to be subtracted is equal to the sum of the following amounts: 17 (i) a reasonable apportionment to the interests in real property owned 18 by the entity of the amount of any loans secured by encumbrances on the 19 ownership interests in the entity which are being conveyed or trans- 20 ferred and (ii) the amount of any loans secured by mortgages or other 21 encumbrances on the real property of the entity multiplied by the 22 percentage interest in the entity which is being conveyed or trans- 23 ferred. 24 Provided, however, that for purposes of the computation made pursuant 25 to this subparagraph, any mortgages or other encumbrances on the real 26 property or economic interest therein which are created in contemplation 27 of the initial formation of the REIT or in contemplation of the convey- 28 ance or transfer of such real property or economic interest therein to 29 the REIT or to a partnership or corporation in which the REIT owns a 30 controlling interest immediately following the conveyance or transfer 31 shall not be considered. 32 (D) Seventy-five percent or more of the cash proceeds received by such 33 REIT from the sale of ownership interests in such REIT upon its initial 34 formation must be used: (i) to make payments on loans secured by any 35 interest in real property, including an ownership interest in an entity 36 owning real property, which is owned directly or indirectly by such 37 REIT; (ii) to pay for capital improvements to real property or any 38 interest therein owned directly or indirectly by such REIT; (iii) to pay 39 brokerage fees and commissions, professional fees and payments to or on 40 behalf of a tenant as an inducement to enter into a lease or sublease 41 incurred in connection with the creation of a leasehold or sublease 42 pertaining to real property or any interest therein owned directly or 43 indirectly by such REIT; (iv) to acquire any interest in real property, 44 including an ownership interest in any entity owning real property, 45 apart from any acquisition to which a reduced rate of tax is applicable 46 pursuant to this subdivision, without regard to this subparagraph; or 47 (v) for reserves established for any of the purposes described in clause 48 (i), (ii) or (iii) of this subparagraph. For purposes of this subpara- 49 graph, the term real property shall include real property wherever 50 located. 51 (E) If a transaction otherwise described in subparagraph (A) or (B) of 52 this paragraph occurs other than in connection with the initial forma- 53 tion of a REIT, the condition set forth in subparagraph (D) shall be 54 disregarded and such transaction shall constitute a "real estate invest- 55 ment trust transfer" if the condition set forth in subparagraph (C)S. 8474 1048 1 would be satisfied if "fifty percent" is substituted for "forty percent" 2 therein. 3 (3) For purposes of determining the consideration for a real estate 4 investment trust transfer taxable under this subdivision the value of 5 the real property or interest therein shall be equal to the estimated 6 market value as determined by the commissioner of finance for real prop- 7 erty tax purposes as reflected on the most recent notice of assessment 8 issued by such commissioner, or such other value as the taxpayer may 9 establish to the satisfaction of such commissioner. 10 (4) This subdivision shall only apply to real estate investment trust 11 transfers occurring on or after the effective date of this subdivision. 12 f. Notwithstanding any other provision of this chapter, in determining 13 the tax imposed by this chapter with respect to a deed, instrument or 14 transaction conveying or transferring a one, two or three-family house, 15 an individual residential condominium unit, an individual residential 16 cooperative apartment, or an interest therein, the consideration for 17 such conveyance or transfer shall exclude, to the extent otherwise 18 included therein, the amount of any mortgage or other lien or encum- 19 brance on the real property or interest therein that existed before the 20 delivery of the deed or the transfer and remains thereon after the date 21 of delivery of the deed or the transfer, other than any mortgage, lien 22 or encumbrance placed on the property or interest in connection with, or 23 in anticipation of, the conveyance or transfer, or by reason of deferred 24 payments of the purchase price whether represented by notes or other- 25 wise. Provided, however, that this subdivision shall not apply to a 26 conveyance or transfer (1) to a mortgagee, lienor or encumbrancer, 27 regardless of whether the grantor or transferor is or was personally 28 liable for the indebtedness secured by the mortgage, lien or encumbrance 29 or whether the mortgage, lien or encumbrance is canceled of record, or 30 (2) which qualifies as a "real estate investment trust transfer" as 31 defined in subdivision e of this section. 32 § 11-2103 Presumptions and burden of proof. For the purpose of the 33 proper administration of this chapter and to prevent evasion of the tax 34 hereby imposed, it shall be presumed that all deeds and transfers of 35 economic interests in real property are taxable. Where the consider- 36 ation includes property other than money, it shall be presumed that the 37 consideration is the value of the real property or interest therein. 38 Such presumptions shall prevail until the contrary is established and 39 the burden of proving the contrary shall be on the taxpayer. The burden 40 of proving that a lien or encumbrance existed on the real property or 41 interest therein before the delivery of the deed and remained thereon 42 thereafter and the burden of proving the amount of such lien or encum- 43 brance at the time of the delivery of the deed shall be on the taxpayer. 44 § 11-2104 Payment. The tax imposed hereunder shall be paid by the 45 grantor to the commissioner of finance at the office of the register in 46 the county where the deed is or would be recorded within thirty days 47 after the delivery of the deed by the grantor to the grantee but before 48 the recording of such deed, or, in the case of a tax on the transfer of 49 an economic interest in real property, at such place as the commissioner 50 of finance shall designate, within thirty days after the transfer. The 51 grantee shall also be liable for the payment of such tax in the event 52 that the amount of tax due is not paid by the grantor or the grantor is 53 exempt from tax. All moneys received as such payments by the register 54 during the preceding month shall be transmitted to the commissioner of 55 finance on the first day of each month or on such other day as is mutu- 56 ally agreeable to the commissioner of finance and the register. From theS. 8474 1049 1 moneys so received by him or her, the commissioner of finance shall set 2 said in a special account: 3 (1) the total amount of taxes imposed pursuant to the provisions of 4 paragraph three of subdivision a of section 11-2102 of this chapter 5 including any interest or penalties thereon; 6 (2) fifty percent of the total amount of taxes imposed pursuant to the 7 provisions of paragraph four of subdivision a of section 11-2102 of this 8 chapter, including fifty percent of any interest or penalties thereon, 9 provided, however, that where such tax is measured by the consideration 10 for a conveyance without deduction for the amount of any mortgage or 11 other lien or encumbrance on the real property or interest therein which 12 existed before the delivery of the deed and remains thereon after the 13 delivery of the deed, the entire amount of tax imposed at the rate of 14 one percent on the portion of the consideration ascribable to such 15 nondeductible mortgage, lien or other encumbrance, including any inter- 16 est or penalties thereon, and fifty percent of the tax on the balance of 17 the consideration, including fifty percent of any interest or penalties 18 thereon, shall be set aside in such special account; 19 (3) fifty percent of the total amount of taxes imposed pursuant to the 20 provisions of subparagraph (iii) of paragraph seven of subdivision a of 21 section 11-2102 of this chapter, including fifty percent of any interest 22 or penalties thereon; 23 (4) fifty percent of the total amount of taxes imposed pursuant to the 24 provisions of paragraph eight of subdivision a of section 11-2102 of 25 this chapter, including fifty percent of any interest or penalties ther- 26 eon; 27 (5) fifty percent of the total amount of taxes imposed at the rate of 28 two percent pursuant to the provisions of clause (ii) of subparagraph A 29 of paragraph one of subdivision b of section 11-2102 of this chapter 30 including fifty percent of any interest or penalties thereon; 31 (6) with respect to any conveyance of real property, transfer of an 32 economic interest therein, or any grant, assignment or surrender of a 33 leasehold interest in real property, made on or after August first, 34 nineteen hundred eighty-nine and taxable under this chapter, in each 35 instance where the tax rate is in excess of two percent, a portion of 36 the tax received equal to one percent of the consideration subject to 37 the tax plus any interest or penalty attributable to such portion of the 38 tax; and 39 (7) notwithstanding anything in subdivision six of this section to the 40 contrary, in each instance where the tax rate imposed pursuant to subdi- 41 vision e of section 11-2102 of this chapter is in excess of one percent, 42 a portion of the tax received equal to one-half of one percent of the 43 total consideration for the real property or economic interest therein 44 conveyed or transferred, plus any interest or penalty attributable to 45 such portion of the tax. 46 Moneys in such account shall be used for payment by such commissioner 47 to the state comptroller for deposit in the urban mass transit operating 48 assistance account of the mass transportation operating assistance fund 49 of any amount of insufficiency certified by the state comptroller pursu- 50 ant to the provisions of subdivision six of section eighty-eight-a of 51 the state finance law, and, on the fifteenth day of each month, the 52 commissioner of finance shall transmit all funds in such account on the 53 last day of the preceding month, except the amount required for the 54 payment of any amount of insufficiency certified by the state comp- 55 troller and such amount as he or she deems necessary for refunds and 56 such other amounts necessary to finance the New York City transportationS. 8474 1050 1 disabled committee and the New York City paratransit system as estab- 2 lished by section fifteen-b of the transportation law, provided, howev- 3 er, that such amounts shall not exceed six percent of the total funds in 4 the account but in no event be less than one hundred seventy-five thou- 5 sand dollars beginning April first, nineteen hundred eighty-six, and 6 further that beginning November fifteenth, nineteen hundred eighty-four 7 and during the entire period prior to operation of such system, the 8 total of such amounts shall not exceed three hundred seventy-five thou- 9 sand dollars for the administrative expenses of such committee and fifty 10 thousand dollars for the expenses of the agency designated pursuant to 11 paragraph b of subdivision five of such section, and other amounts 12 necessary to finance the operating needs of the private bus companies 13 franchised by the city of New York and eligible to receive state operat- 14 ing assistance under section eighteen-b of the transportation law, 15 provided, however, that such amounts shall not exceed four percent of 16 the total funds in the account, to the New York city transit authority 17 for mass transit within the city. 18 § 11-2105 Returns. a. A joint return shall be filed by both the 19 grantor and the grantee for each deed whether or not a tax is due there- 20 on. Such return shall be filed with the commissioner of finance within 21 thirty days after the delivery of the deed by the grantor to the grantee 22 but before the recording of such deed. The commissioner of finance may, 23 by rule, require that such returns be filed electronically. 24 Filing shall be accomplished by delivering the return to the register 25 for transmittal to the commissioner of finance or, where required by the 26 commissioner of finance, by electronic filing of the return in a manner 27 designated by the commissioner of finance. In the case of a transfer of 28 an economic interest in real property, a joint return shall be filed in 29 the above manner by both the grantor and the grantee for each instrument 30 or transaction by which such transfer is effected, whether or not a tax 31 is due thereon. Such return shall be filed with the commissioner of 32 finance, at such place and in such manner as he or she may designate 33 within thirty days after the transfer. The commissioner of finance shall 34 prescribe the form of the return and the information which it shall 35 contain. The return shall be signed by both the grantor or the grantor's 36 agent and the grantee or the grantee's agent. Where the commissioner of 37 finance requires electronic filing, the return shall be signed electron- 38 ically. Upon the filing of such return for a deed, evidence of the 39 filing shall be affixed to the deed by the register. The commissioner of 40 finance may provide for the use of stamps as evidence of payment and 41 that they shall be affixed to the deed before it is recorded. Where 42 either the grantor or grantee has failed to sign the return, it shall be 43 accepted as a return, but the party who has failed to sign the return or 44 file a separate return shall be subject to the penalties applicable to a 45 person who has failed to file a return and the period of limitations for 46 assessment of tax or of additional tax shall not apply to such party. 47 For good cause, the commissioner of finance may waive any rule requiring 48 electronic filing and may permit a return to be filed in such other 49 manner as the commissioner of finance may designate. 50 b. Returns shall be preserved for three years and thereafter until 51 the commissioner of finance permits them to be destroyed. 52 c. The commissioner of finance may require amended returns to be filed 53 within twenty days after notice and to contain the information specified 54 in the notice. 55 d. If a return required by this chapter is not filed or if a return 56 when filed is incorrect or insufficient on its face the commissioner ofS. 8474 1051 1 finance shall take the necessary steps to enforce the filing of such a 2 return or of a corrected return. 3 e. Where a deed, or instrument or transaction has more than one gran- 4 tor or more than one grantee, the return may be signed by any one of the 5 grantors and by any one of the grantees, provided, however, that those 6 not signing shall not be relieved of any liability for the tax imposed 7 by this chapter. 8 f. The payment of, and the filing of returns relating to, the taxes 9 imposed hereunder, shall be required as a condition precedent to the 10 recording or filing of a deed, lease, assignment or surrender of lease 11 or other instrument effecting a conveyance or transfer subject to such 12 taxes. 13 g. Every cooperative housing corporation shall be required to file an 14 information return with the commissioner of finance as follows: such 15 information return shall be filed by February fifteenth of the year two 16 thousand and of each year thereafter, covering the reporting period 17 beginning on January sixth of the year preceding the filing and ending 18 on January fifth of the year of the filing. For reporting periods begin- 19 ning before January sixth, nineteen hundred ninety-nine, such informa- 20 tion return shall be filed by July fifteenth of each year covering the 21 preceding period of January first through June thirtieth and by January 22 fifteenth of each year covering the preceding period of July first 23 through December thirty-first provided, however, that for the reporting 24 period from January first through June thirtieth, nineteen hundred 25 eighty-nine, such information return shall be filed by July thirty- 26 first, nineteen hundred eighty-nine. The return shall contain such 27 information regarding the transfer of shares of stock in the cooperative 28 housing corporation as the commissioner may deem necessary, including 29 but not limited to, the names, addresses and employer identification 30 numbers or social security numbers of the grantor and the grantee, the 31 number of shares transferred, the date of the transfer and the consider- 32 ation paid for such transfer, provided, however, that if such cooper- 33 ative housing corporation elects that such information return be deemed 34 an application for an abatement pursuant to paragraph (f) of subdivision 35 three of section four hundred sixty-seven-a of the real property tax 36 law, such return shall contain the information required pursuant to 37 paragraph (d) of subdivision three of such section. The commissioner of 38 finance may enter into an agreement with the commissioner of taxation 39 and finance of the state of New York to provide that a single informa- 40 tion return may be filed for purposes of the tax imposed by this chapter 41 and the real estate transfer tax imposed by article thirty-one of the 42 tax law. 43 h. Returns with respect to the conveyance of a one- or two-family 44 dwelling will not be accepted for filing unless accompanied by an affi- 45 davit signed by the grantor and grantee indicating that the premises is 46 equipped with an approved and operational smoke detecting device as 47 provided in article six of subchapter seventeen of chapter one of title 48 twenty-seven of this code. 49 i. When the grantor or grantee of a deed for a building used as resi- 50 dential real property containing up to four family dwelling units is a 51 limited liability company, the joint return shall not be accepted for 52 filing unless it is accompanied by a document which identifies the names 53 and business addresses of all members, managers, and any other author- 54 ized persons, if any, of such limited liability company and the names 55 and business addresses or, if none, the business addresses of all share- 56 holders, directors, officers, members, managers and partners of anyS. 8474 1052 1 limited liability company or other business entity that are to be the 2 members, managers or authorized persons, if any, of such limited liabil- 3 ity company. The identification of such names and addresses shall not be 4 deemed an unwarranted invasion of personal privacy pursuant to article 5 six of the public officers law. If any such member, manager or author- 6 ized person of the limited liability company is itself a limited liabil- 7 ity company or other business entity other than a publicly traded enti- 8 ty, a REIT, an UPREIT, or a mutual fund, the names and addresses of the 9 shareholders, directors, officers, members, managers and partners of the 10 limited liability company or other business entity shall also be 11 disclosed until full disclosure of ultimate ownership by natural persons 12 is achieved. For purposes of this subdivision, the terms "members", 13 "managers", "authorized person", "limited liability company" and "other 14 business entity" shall have the same meaning as those terms are defined 15 in section one hundred two of the limited liability company law. 16 § 11-2106 Exemptions. a. The following shall be exempt from the 17 payment of the tax imposed by this chapter and from filing a return: 18 1. The state of New York, or any of its agencies, instrumentalities, 19 public corporations, including a public corporation created pursuant to 20 agreement or compact with another state or the Dominion of Canada, or 21 political subdivisions; 22 2. The United States of America, and any of its agencies and instru- 23 mentalities, insofar, as they are immune from taxation, provided, howev- 24 er, that the exemption of such governmental bodies or persons shall not 25 relieve a grantee from them of liability for the tax or from filing a 26 return. 27 b. The tax imposed by this chapter shall not apply to any of the 28 following deeds, instruments or transactions: 29 1. A deed, instrument or transaction conveying or transferring real 30 property or an economic interest therein by or to the United Nations or 31 other world-wide international organizations of which the United States 32 of America is a member; 33 2. A deed, instrument or transaction conveying or transferring real 34 property or an economic interest therein by or to any corporation, or 35 association, or trust, or community chest, fund or foundation, organized 36 or operated exclusively for religious, charitable, or educational 37 purposes, or for the prevention of cruelty to children or animals, and 38 no part of the net earnings of which inures to the benefit of any 39 private shareholder or individual and no substantial part of the activ- 40 ities of which is carrying on propaganda, or otherwise attempting to 41 influence legislation; provided, however, that nothing in this paragraph 42 shall include an organization operated for the primary purpose of carry- 43 ing on a trade or business for profit, whether or not all of its profits 44 are payable to one or more organizations described in this paragraph; 45 3. A deed, instrument or transaction conveying or transferring real 46 property or an economic interest therein to any governmental body or 47 person exempt from payment of the tax pursuant to subdivision a of this 48 section; 49 4. A deed delivered pursuant to a contract made prior to May first, 50 nineteen hundred fifty-nine; 51 5. A deed delivered by any governmental body or person exempt from 52 payment of the tax pursuant to subdivision a of this section as a result 53 of a sale at a public auction held in accordance with the provisions of 54 a contract made prior to May first, nineteen hundred fifty-nine; 55 6. A deed or instrument given solely as security for, or a transaction 56 the sole purpose of which is to secure, a debt or obligation or a deedS. 8474 1053 1 or instrument given, or a transaction entered into, solely for the 2 purpose of returning such security; 3 7. A deed, instrument or transaction conveying or transferring real 4 property or an economic interest therein from a mere agent, dummy, straw 5 man or conduit to his principal or a deed, instrument or transaction 6 conveying or transferring real property or an economic interest therein 7 from the principal to his agent, dummy, straw man or conduit. 8 8. A deed, instrument or transaction conveying or transferring real 9 property or an economic interest therein that effects a mere change of 10 identity or form of ownership or organization to the extent the benefi- 11 cial ownership of such real property or economic interest therein 12 remains the same, other than a conveyance to a cooperative housing 13 corporation of the land and building or buildings comprising the cooper- 14 ative dwelling or dwellings. For purposes of this paragraph, the term 15 "cooperative housing corporation" shall not include a housing company 16 organized and operating pursuant to the provisions of article two, four, 17 five or eleven of the private housing finance law. 18 9. A deed, instrument or transaction conveying or transferring real 19 property or an economic interest therein by or to any housing develop- 20 ment fund company organized pursuant to article eleven of the private 21 housing finance law or to an entity, the controlling interest of which 22 is held by such a company, if at the time of such conveyance or trans- 23 fer, such real property is subject to, or simultaneously with such 24 conveyance or transfer is made subject to, a regulatory agreement with 25 the state of New York, a municipal corporation or any other public 26 corporation created by or pursuant to any law of the state of New York 27 that: encumbers the real property for thirty years or more, requires 28 mutual consent for revocation or amendment, restricts more than fifty 29 percent of the floor area, other than common areas, to residential real 30 property, and restricts at least sixty-six and two-thirds percent of 31 such residential real property to purchase, lease, license or other use 32 by persons of low income and families of low income within the meaning 33 of section two of the private housing finance law; provided, however, 34 that if such regulatory agreement restricts less than one hundred 35 percent of the floor area, other than common areas, to purchase, lease, 36 license or other use by persons of low income and families of low income 37 within the meaning of section two of the private housing finance law, 38 the tax shall apply to the consideration less the product of the consid- 39 eration and a fraction, the numerator of which is the floor area that 40 such regulatory agreement restricts to purchase, lease, license or other 41 use by persons of low income and families of low income within the mean- 42 ing of section two of the private housing finance law and the denomina- 43 tor of which is the entire floor area, minus the floor area of common 44 areas; provided further, that if such real property is made subject to a 45 regulatory agreement that meets the terms of this paragraph within two 46 years of the conveyance or transfer then the commissioner of finance may 47 issue a refund based on the application of this paragraph pursuant to 48 the provisions of section 11-2108 of this chapter, treating the transfer 49 or conveyance as if such real property were subject to such regulatory 50 agreement as of the date of such transfer or conveyance, if, notwith- 51 standing any other time limitation set forth in section 11-2108 of this 52 chapter, application to the commissioner of finance for such refund is 53 made within twelve months of the effective date of such regulatory 54 agreement. 55 c. Notwithstanding any provision of this chapter to the contrary, 56 where stock of a cooperative housing corporation and the appurtenantS. 8474 1054 1 proprietary leasehold are transferred to such cooperative housing corpo- 2 ration or a wholly owned subsidiary of such housing corporation, or to 3 the holder of a mortgage on the real property of such cooperative hous- 4 ing corporation or a wholly owned subsidiary of such holder of a mort- 5 gage on the real property of such cooperative housing corporation, such 6 cooperative housing corporation or its wholly owned subsidiary, or such 7 mortgage holder or its wholly owned subsidiary, shall not be liable as 8 grantee for the tax determined to be due under this chapter from the 9 grantor in such transfer, provided that such transfer occurred pursuant 10 to, as the result of, or in connection with an action, proceeding, or 11 other procedure to which such cooperative housing corporation is a 12 party, to enforce a lien, security interest or other rights on or in 13 such stock and proprietary leasehold, including but not limited to 14 rights under the proprietary lease. This subdivision shall apply to 15 transfers occurring on or after June sixteenth, nineteen hundred nine- 16 ty-two. 17 § 11-2107 Determination of tax. If a return required by this chapter 18 is not filed, or if a return when filed is incorrect or insufficient, 19 the amount of tax due shall be determined by the commissioner of finance 20 from such information as may be obtainable, including the assessed valu- 21 ation of the real property or interest therein. Notice of such determi- 22 nation shall be given to the person liable for the tax. Such determi- 23 nation shall finally and irrevocably fix the tax unless the person 24 against whom it is assessed, within ninety days after the giving of 25 notice of such determination, or, if the commissioner of finance has 26 established a conciliation procedure pursuant to section 11-124 of the 27 code of the preceding municipality and the taxpayer has requested a 28 conciliation conference in accordance therewith, within ninety days from 29 the mailing of a conciliation decision or the date of the commissioner's 30 confirmation of the discontinuance of the conciliation proceeding, both 31 (1) serves a petition upon the commissioner of finance and (2) files a 32 petition with the tax appeals tribunal for a hearing, or, unless the 33 commissioner of finance of his or her own motion shall redetermine the 34 same. Such hearing and any appeal to the tax appeals tribunal sitting en 35 banc from the decision rendered in such hearing shall be conducted in 36 the manner and subject to the requirements prescribed by the tax appeals 37 tribunal pursuant to sections one hundred sixty-eight through one 38 hundred seventy-two of the charter of the preceding municipality as it 39 existed January first, nineteen hundred ninety-four. After such hearing 40 the tax appeals tribunal shall give notice of its decision to the person 41 against whom the tax is assessed and to the commissioner of finance. A 42 decision of the tax appeals tribunal sitting en banc shall be reviewable 43 for error, illegality or unconstitutionality or any other reason whatso- 44 ever by a proceeding under article seventy-eight of the civil practice 45 law and rules if application therefor is made to the supreme court by 46 the person against whom the tax was assessed within four months after 47 the giving of the notice of such tax appeals tribunal decision. A 48 proceeding under article seventy-eight of the civil practice law and 49 rules shall not be instituted by a taxpayer unless: (a) the amount of 50 any tax sought to be reviewed, with penalties and interest thereon, if 51 any, shall be first deposited with the commissioner of finance and there 52 shall be filed with the commissioner of finance an undertaking, issued 53 by a surety company authorized to transact business in this state and 54 approved by the superintendent of insurance of this state as to solvency 55 and responsibility, in such amount and with such sureties as a justice 56 of the supreme court shall approve, to the effect that if such proceed-S. 8474 1055 1 ing be dismissed or the tax confirmed, the taxpayer will pay all costs 2 and charges which may accrue in the prosecution of the proceeding; or 3 (b) at the option of the taxpayer such undertaking filed with the 4 commissioner of finance may be in a sum sufficient to cover the taxes, 5 penalties and interest thereon stated in such decision plus the costs 6 and charges which may accrue against it in the prosecution of the 7 proceeding, in which event the taxpayer shall not be required to deposit 8 such taxes, penalties and interest as a condition precedent to the 9 application. 10 § 11-2108 Refunds. a. In the manner provided in this section the 11 commissioner of finance shall refund or credit, without interest, any 12 tax, penalty or interest erroneously, illegally or unconstitutionally 13 collected or paid if application to the commissioner of finance for such 14 refund shall be made within one year from the payment thereof. Whenever 15 a refund is made or denied by the commissioner of finance, the commis- 16 sioner shall state his or her reason therefor and give notice thereof to 17 the taxpayer in writing. Such application may be made by the grantor, 18 grantee or other person who has actually paid the tax. The commissioner 19 of finance may, in lieu of any refund required to be made, allow credit 20 therefor on payments due from the applicant. 21 b. Any determination of the commissioner of finance denying a refund 22 or credit pursuant to subdivision a of this section shall be final and 23 irrevocable unless the applicant for such refund or credit, within nine- 24 ty days from the mailing of notice of such determination, or, if the 25 commissioner of finance has established a conciliation procedure pursu- 26 ant to section 11-124 of the code of the preceding municipality and the 27 applicant has requested a conciliation conference in accordance there- 28 with, within ninety days from the mailing of a conciliation decision or 29 the date of the commissioner's confirmation of the discontinuance of the 30 conciliation proceeding, both (1) serves a petition upon the commission- 31 er of finance and (2) files a petition with the tax appeals tribunal for 32 a hearing. Such petition for a refund or credit made as herein provided 33 shall be deemed an application for a revision of any tax, penalty or 34 interest complained of. Such hearing and any appeal to the tax appeals 35 tribunal sitting en banc from the decision rendered in such hearing 36 shall be conducted in the manner and subject to the requirements 37 prescribed by the tax appeals tribunal pursuant to sections one hundred 38 sixty-eight through one hundred seventy-two of the charter of the 39 preceding municipality as it existed January first, nineteen hundred 40 ninety-four. After such hearing, the tax appeals tribunal shall give 41 notice of its decision to the applicant and the commissioner of finance. 42 The applicant shall be entitled to review such decision of the tax 43 appeals tribunal sitting en banc by a proceeding pursuant to article 44 seventy-eight of the civil practice law and rules, provided such 45 proceeding is instituted within four months after the giving of notice 46 of such decision, and provided, in the case of an application by a 47 taxpayer, that a final determination of tax due was not previously made. 48 Such a proceeding shall not be instituted by a taxpayer unless an under- 49 taking is filed with the commissioner of finance in such amount and with 50 such sureties as a justice of the supreme court shall approve to the 51 effect that if such proceeding be dismissed or the tax confirmed, the 52 taxpayer will pay all costs and charges which may accrue in the prose- 53 cution of such proceeding. 54 c. A person shall not be entitled to a revision, refund or credit 55 under this section of a tax, interest or penalty which had been deter- 56 mined to be due pursuant to the provisions of section 11-2107 of thisS. 8474 1056 1 chapter where he or she has had a hearing or an opportunity for a hear- 2 ing, as provided in said section, or has failed to avail himself or 3 herself of the remedies therein provided. No refund or credit shall be 4 made of a tax, interest or penalty paid after a determination by the 5 commissioner of finance made pursuant to section 11-2107 of this chapter 6 unless it be found that such determination was erroneous, illegal or 7 unconstitutional or otherwise improper, by the tax appeals tribunal 8 after a hearing, or on the commissioner of finance's own motion, or, if 9 such tax appeals tribunal affirms in whole or in part the determination 10 of the commissioner of finance, in a proceeding under article seventy- 11 eight of the civil practice law and rules, pursuant to the provisions of 12 said section, in which event refund or credit without interest shall be 13 made of the tax, interest or penalty found to have been overpaid. 14 § 11-2109 Reserves. In cases where the grantor or grantee has 15 applied for a refund and has instituted a proceeding under article 16 seventy-eight of the civil practice law and rules to review a determi- 17 nation adverse to him or her on his or her application for refund, the 18 comptroller shall set up appropriate reserves to meet any decision 19 adverse to the city. 20 § 11-2110 Remedies exclusive. The remedies provided by sections 21 11-2107 and 11-2108 of this chapter shall be exclusive remedies avail- 22 able to any person for the review of tax liability imposed by this chap- 23 ter; and no determination or proposed determination of tax or determi- 24 nation on any application for refund shall be enjoined or reviewed by an 25 action for declaratory judgment, an action for money had and received or 26 by any action or proceeding other than a proceeding in the nature of a 27 certiorari proceeding under article seventy-eight of the civil practice 28 law and rules; provided, however, that a taxpayer may proceed by declar- 29 atory judgment if he or she institutes suit within thirty days after a 30 deficiency assessment is made and pays the amount of the deficiency 31 assessment to the commissioner of finance prior to the institution of 32 such suit and posts a bond for costs as provided in section 11-2107 of 33 this chapter. 34 § 11-2111 Proceedings to recover tax. a. Whenever any grantor or 35 grantee shall fail to pay any tax, penalty or interest imposed by this 36 chapter as herein provided, the corporation counsel shall, upon the 37 request of the commissioner of finance bring or cause to be brought an 38 action to enforce the payment of the same on behalf of the city of 39 Staten Island in any court of the state of New York or of any other 40 state or of the United States. If, however, the commissioner of finance 41 in his or her discretion believes that any such grantor or grantee 42 subject to the provisions of this chapter is about to cease business, 43 leave the state or remove or dissipate the assets out of which the tax 44 or penalty might be satisfied, and that any such tax or penalty will not 45 be paid when due, such commissioner may declare such tax or penalty to 46 be immediately due and payable and may issue a warrant immediately. 47 b. As an additional or alternate remedy, the commissioner of finance 48 may issue a warrant, directed to the city sheriff commanding him or her 49 to levy upon and sell the real and personal property of the grantor, 50 grantee or other person liable for the tax which may be found within the 51 city, for the payment of the amount thereof, with any penalty and inter- 52 est, and the cost of executing the warrant, and to return such warrant 53 to the commissioner of finance and to pay to him or her the money 54 collected by virtue thereof within sixty days after the receipt of such 55 warrant. The city sheriff shall within five days after the receipt of 56 the warrant file with the county clerk a copy thereof, and thereuponS. 8474 1057 1 such clerk shall enter in the judgment docket the name of the person 2 mentioned in the warrant and the amount of the tax, penalty and interest 3 for which the warrant is issued and the date when such copy is filed. 4 Thereupon the amount of such warrant so docketed shall become a lien 5 upon the title to and the interest in real and personal property of the 6 person against whom the warrant is issued. The city sheriff shall then 7 proceed upon the warrant in the same manner, and with like effect, as 8 that provided by law in respect to executions issued against property 9 upon judgments of a court of record and for services in executing the 10 warrant he or she shall be entitled to the same fees, which such sheriff 11 may collect in the same manner. In the discretion of the commissioner 12 of finance a warrant of like terms, force and effect may be issued and 13 directed to an officer or employee of the department of finance, and in 14 the execution thereof such officer or employee shall have all the powers 15 conferred by law upon sheriffs, but shall be entitled to no fee or 16 compensation in excess of the actual expenses paid in the performance of 17 such duty. If a warrant is returned not satisfied in full, the commis- 18 sioner of finance may from time to time issue new warrants and shall 19 also have the same remedies to enforce the amount due thereunder as if 20 the city had recovered judgment therefor and execution thereon had been 21 returned unsatisfied. 22 c. The commissioner of finance, if he or she finds that the interests 23 of the city will not thereby be jeopardized, and upon such conditions as 24 the commissioner of finance may require, may release any property from 25 the lien of any warrant or vacate such warrant for unpaid taxes, addi- 26 tions to tax, penalties and interest filed pursuant to subdivision b of 27 this section, and such release or vacating of the warrant may be 28 recorded in the office of any recording officer in which such warrant 29 has been filed. The clerk shall thereupon cancel and discharge as of the 30 original date of docketing the vacated warrant. 31 § 11-2112 General powers of the commissioner of finance. In addition 32 to the powers granted to the commissioner of finance in this chapter, he 33 or she is hereby authorized and empowered: 34 1. To make, adopt and amend rules and regulations appropriate to the 35 carrying out of this chapter and the purposes thereof; 36 2. To extend, for cause shown, the time for filing any return for a 37 period not exceeding thirty days; and to compromise disputed claims in 38 connection with the taxes hereby imposed; 39 3. To request information from the tax commission of the state of New 40 York or the treasury department of the United States relative to any 41 person; and to afford returns, reports and other information to such tax 42 commission or such treasury department relative to any person, any other 43 provision of this chapter to the contrary notwithstanding; 44 4. To delegate his or her functions under this section to a deputy 45 commissioner of finance or any employee or employees of the department 46 of finance; 47 5. To prescribe the methods for determining the consideration and net 48 consideration attributable to that portion of real property located 49 partly within and partly without the city of Staten Island which is 50 located within the city of Staten Island or any interest therein; 51 6. To require any grantor or grantee to keep such records, and for 52 such length of time as may be required for the proper administration of 53 this chapter and to furnish such records to the commissioner of finance 54 upon request; 55 7. To assess, determine, revise and adjust the taxes imposed under 56 this chapter.S. 8474 1058 1 § 11-2113 Administration of oaths and compelling testimony. a. The 2 commissioner of finance, his or her employees or agents duly designated 3 and authorized by him or her, the tax appeals tribunal and any of its 4 duly designated and authorized employees or agents shall have power to 5 administer oaths and take affidavits in relation to any matter or 6 proceeding in the exercise of their powers and duties under this chap- 7 ter. The commissioner of finance and the tax appeals tribunal shall have 8 power to subpoena and require the attendance of witnesses and the 9 production of books, papers and documents to secure information perti- 10 nent to the performance of the duties of the commissioner or of the tax 11 appeals tribunal under this chapter and of the enforcement of this chap- 12 ter and to examine them in relation thereto, and to issue commissions 13 for the examination of witnesses who are out of the state or unable to 14 attend before such commissioner or the tax appeals tribunal or excused 15 from attendance. 16 b. A justice of the supreme court either in court or at chambers shall 17 have power summarily to enforce by proper proceedings the attendance and 18 testimony of witnesses and the production and examination of books, 19 papers and documents called for by the subpoena of the commissioner of 20 finance or the tax appeals tribunal under this chapter. 21 c. Cross-reference; criminal penalties. For failure to obey subpoenas 22 or for testifying falsely, see section 11-4007 of this title; for 23 supplying false or fraudulent information, see section 11-4009 of this 24 title. 25 d. The officers who serve the summons or subpoena of the commissioner 26 of finance or the tax appeals tribunal and witnesses attending in 27 response thereto shall be entitled to the same fees as are allowed to 28 officers and witnesses in civil cases in courts of record, except as 29 herein otherwise provided. Such officers shall be the city sheriff and 30 his or her duly appointed deputies or any officers or employees of the 31 department of finance or the tax appeals tribunal, designated to serve 32 such process. 33 § 11-2114 Interest and penalties. (a) Interest on underpayments. If 34 any amount of tax is not paid on or before the last date prescribed for 35 payment, without regard to any extension of time granted for payment, 36 interest on such amount at the rate set by the commissioner of finance 37 pursuant to subdivision (g) of this section, or, if no rate is set, at 38 the rate of seven and one-half percent per annum, shall be paid for the 39 period from such last date to the date of payment. In computing the 40 amount of interest to be paid, such interest shall be compounded daily. 41 Interest under this subdivision shall not be paid if the amount thereof 42 is less than one dollar. 43 (b) (1) Failure to file return. (A) In case of failure to file a 44 return under this chapter on or before the prescribed date, determined 45 with regard to any extension of time for filing, unless it is shown that 46 such failure is due to reasonable cause and not due to willful neglect, 47 there shall be added to the amount required to be shown as tax on such 48 return five percent of the amount of such tax if the failure is for not 49 more than one month, with an additional five percent for each additional 50 month or fraction thereof during which such failure continues, not 51 exceeding twenty-five percent in the aggregate. 52 (B) In the case of a failure to file a return of tax within sixty days 53 of the date prescribed for filing of such return, determined with regard 54 to any extension of time for filing, unless it is shown that such fail- 55 ure is due to reasonable cause and not due to willful neglect, the addi- 56 tion to tax under subparagraph (A) of this paragraph shall not be lessS. 8474 1059 1 than the lesser of one hundred dollars or one hundred percent of the 2 amount required to be shown as tax on such return. 3 (C) For purposes of this paragraph, the amount of tax required to be 4 shown on the return shall be reduced by the amount of any part of the 5 tax which is paid on or before the date prescribed for payment of the 6 tax and by the amount of any credit against the tax which may be claimed 7 upon the return. 8 (2) Failure to pay tax shown on return. In case of failure to pay the 9 amount shown as tax on a return required to be filed under this chapter 10 on or before the prescribed date, determined with regard to any exten- 11 sion of time for payment, unless it is shown that such failure is due to 12 reasonable cause and not due to willful neglect, there shall be added to 13 the amount shown as tax on such return one-half of one percent of the 14 amount of such tax if the failure is not for more than one month, with 15 an additional one-half of one percent for each additional month or frac- 16 tion thereof during which such failure continues, not exceeding twenty- 17 five percent in the aggregate. For the purpose of computing the addition 18 for any month the amount of tax shown on the return shall be reduced by 19 the amount of any part of the tax which is paid on or before the begin- 20 ning of such month and by the amount of any credit against the tax which 21 may be claimed upon the return. If the amount of tax required to be 22 shown on a return is less than the amount shown as tax on such return, 23 this paragraph shall be applied by substituting such lower amount. 24 (3) Failure to pay tax required to be shown on return. In case of 25 failure to pay any amount in respect of any tax required to be shown on 26 a return required to be filed under this chapter which is not so shown, 27 including a determination made pursuant to section 11-2107 of this chap- 28 ter, within ten days of the date of a notice and demand therefor, unless 29 it is shown that such failure is due to reasonable cause and not due to 30 willful neglect, there shall be added to the amount of tax stated in 31 such notice and demand one-half of one percent of such tax if the fail- 32 ure is not for more than one month, with an additional one-half of one 33 percent for each additional month or fraction thereof during which such 34 failure continues, not exceeding twenty-five percent in the aggregate. 35 For the purpose of computing the addition for any month, the amount of 36 tax stated in the notice and demand shall be reduced by the amount of 37 any part of the tax which is paid before the beginning of such month. 38 (4) Limitations on additions. 39 (A) With respect to any return, the amount of the addition under para- 40 graph one of this subdivision shall be reduced by the amount of the 41 addition under paragraph two of this subdivision for any month to which 42 an addition applies under both paragraphs one and two of this subdivi- 43 sion. In any case described in subparagraph (B) of paragraph one of this 44 subdivision, the amount of the addition under such paragraph one shall 45 not be reduced below the amount provided in such subparagraph. 46 (B) With respect to any return, the maximum amount of the addition 47 permitted under paragraph three of this subdivision shall be reduced by 48 the amount of the addition under paragraph one of this subdivision, 49 determined without regard to subparagraph (B) of such paragraph one, 50 which is attributable to the tax for which the notice and demand is made 51 and which is not paid within ten days of such notice and demand. 52 (c) Underpayment due to negligence. (1) If any part of an underpayment 53 of tax is due to negligence or intentional disregard of this chapter or 54 any rules or regulations hereunder, but without intent to defraud, there 55 shall be added to the tax a penalty equal to five percent of the under- 56 payment.S. 8474 1060 1 (2) There shall be added to the tax, in addition to the amount deter- 2 mined under paragraph one of this subdivision, an amount equal to fifty 3 percent of the interest payable under subdivision (a) of this section 4 with respect to the portion of the underpayment described in such para- 5 graph one which is attributable to the negligence or intentional disre- 6 gard referred to in such paragraph one, for the period beginning on the 7 last date prescribed by law for payment of such underpayment, determined 8 without regard to any extension, and ending on the date of the assess- 9 ment of the tax, or, if earlier, the date of the payment of the tax. 10 (d) Underpayment due to fraud. (1) If any part of an underpayment of 11 tax is due to fraud, there shall be added to the tax a penalty equal to 12 fifty percent of the underpayment. 13 (2) There shall be added to the tax, in addition to the penalty deter- 14 mined under paragraph one of this subdivision, an amount equal to fifty 15 percent of the interest payable under subdivision (a) of this section 16 with respect to the portion of the underpayment described in such para- 17 graph one which is attributable to fraud, for the period beginning on 18 the last day prescribed by law for payment of such underpayment, deter- 19 mined without regard to any extension, and ending on the date of the 20 assessment of the tax, or, if earlier, the date of the payment of the 21 tax. 22 (3) The penalty under this subdivision shall be in lieu of any other 23 addition to tax imposed by subdivision (b) or (c) of this section. 24 (e) Additional penalty. Any person who, with fraudulent intent, shall 25 fail to pay any tax imposed by this chapter, or to make, render, sign or 26 certify any return, or to supply any information within the time 27 required by or under this chapter, shall be liable for a penalty of not 28 more than one thousand dollars, in addition to any other amounts 29 required under this chapter to be imposed, assessed and collected by the 30 commissioner of finance. The commissioner of finance shall have the 31 power, in his or her discretion, to waive, reduce or compromise any 32 penalty under this subdivision. 33 (f) The interest and penalties imposed by this section shall be paid 34 and disposed of in the same manner as other revenues from this chapter. 35 Unpaid interest and penalties may be enforced in the same manner as the 36 tax imposed by this chapter. 37 (g)(1) Authority to set interest rates. The commissioner of finance 38 shall set the rate of interest to be paid pursuant to subdivision (a) of 39 this section, but if no such rate of interest is set, such rate shall be 40 deemed to be set at seven and one-half percent per annum. Such rate 41 shall be the rate prescribed in paragraph two of this subdivision but 42 shall not be less than seven and one-half percent per annum. Any such 43 rate set by the commissioner of finance shall apply to taxes, or any 44 portion thereof, which remain or become due on or after the date on 45 which such rate becomes effective and shall apply only with respect to 46 interest computed or computable for periods or portions of periods 47 occurring in the period in which such rate is in effect. 48 (2) General rule. The rate of interest set under this subdivision 49 shall be the sum of (i) the federal short-term rate as provided under 50 paragraph three of this subdivision, plus (ii) seven percentage points. 51 (3) Federal short-term rate. For purposes of this subdivision: 52 (A) The federal short-term rate for any month shall be the federal 53 short-term rate determined by the United States secretary of the treas- 54 ury during such month in accordance with subsection (d) of section 55 twelve hundred seventy-four of the internal revenue code for use in 56 connection with section six thousand six hundred twenty-one of theS. 8474 1061 1 internal revenue code. Any such rate shall be rounded to the nearest 2 full percent, or, if a multiple of one-half of one percent, such rate 3 shall be increased to the next highest full percent. 4 (B) Period during which rate applies. 5 (i) In general. Except as provided in clause (ii) of this subpara- 6 graph, the federal short-term rate for the first month in each calendar 7 quarter shall apply during the first calendar quarter beginning after 8 such month. 9 (ii) Special rule for the month of September, nineteen hundred eight- 10 y-nine. The federal short-term rate for the month of April, nineteen 11 hundred eighty-nine shall apply with respect to setting the rate of 12 interest for the month of September, nineteen hundred eighty-nine. 13 (4) Publication of interest rate. The commissioner of finance shall 14 cause to be published in the City Record, and give other appropriate 15 general notice of, the interest rate to be set under this subdivision no 16 later than twenty days preceding the first day of the calendar quarter 17 during which such interest rate applies. The setting and publication of 18 such interest rate shall not be included within paragraph (a) of subdi- 19 vision five of section one thousand forty-one of the city charter of the 20 preceding municipality as it existed January first, nineteen hundred 21 ninety-four relating to the definition of a rule. 22 (h) Miscellaneous. (1) The certificate of the commissioner to the 23 effect that a tax has not been paid or that information has not been 24 supplied pursuant to the provisions of this chapter shall be presumptive 25 evidence thereof. 26 (2) Cross-reference: For criminal penalties, see chapter forty of 27 this title. 28 (i) Failure to file information return. If a cooperative housing 29 corporation fails to file an information return required under subdivi- 30 sion g of section 11-2105 of this chapter on or before the prescribed 31 date, determined with regard to any extension of time for filing, unless 32 it is shown that such failure is due to reasonable cause and not due to 33 willful neglect, there shall be imposed on such cooperative housing 34 corporation a penalty of one hundred dollars for each such failure. 35 § 11-2115 Returns to be secret. a. Except in accordance with proper 36 judicial order, or as otherwise provided by law, it shall be unlawful 37 for the commissioner of finance, register or tax appeals tribunal or any 38 officer or employee of the department of finance, register or tax 39 appeals tribunal to divulge or make known in any manner any information 40 contained in or relating to any return provided for by this chapter. The 41 officers charged with the custody of such returns shall not be required 42 to produce any of them or evidence of anything contained in them in any 43 action or proceeding in any court, except on behalf of the commissioner 44 of finance in an action or proceeding under the provisions of this chap- 45 ter, or on behalf of any party to an action or proceeding under the 46 provisions of this chapter when the returns or facts shown thereby are 47 directly involved in such action or proceeding, in either of which 48 events the court may require the production of, and may admit in 49 evidence, so much of said returns or of the facts shown thereby, as are 50 pertinent to the action or proceeding and no more. Nothing in this 51 section shall be construed to prohibit the delivery to a grantor or 52 grantee of a deed or to any subsequent owner of the real property 53 conveyed by such deed or to the duly authorized representative of any of 54 them of a certified copy of any return filed in connection with the tax 55 on such deed; nor to prohibit the delivery of such a certified copy of 56 such return or of any information contained in or relating thereto toS. 8474 1062 1 the United States of America or any department thereof, the state of New 2 York or any department thereof, the city of Staten Island or any depart- 3 ment thereof provided the same is required for official business; nor to 4 prohibit the inspection for official business of such returns by the 5 register, the corporation counsel or other legal representatives of the 6 city or by the district attorney of Richmond county; nor to prohibit the 7 publication of statistics so classified as to prevent the identification 8 of particular returns or items thereof. 9 b. (1) Any officer or employee of the city who willfully violates the 10 provisions of subdivision a of this section shall be dismissed from 11 office and be incapable of holding any public office in this city for a 12 period of five years thereafter. 13 (2) Cross-reference: For criminal penalties, see chapter forty of 14 this title. 15 c. This section shall be deemed a state statute for purposes of para- 16 graph (a) of subdivision two of section eighty-seven of the public offi- 17 cers law. 18 d. Notwithstanding anything in subdivision a of this section to the 19 contrary, if a taxpayer has petitioned the tax appeals tribunal for 20 administrative review as provided in section one hundred seventy of the 21 charter of the preceding municipality as it existed January first, nine- 22 teen hundred ninety-four, the commissioner of finance shall be author- 23 ized to present to the tribunal any report or return of such taxpayer, 24 or any information contained therein or relating thereto, which may be 25 material or relevant to the proceeding before the tribunal. The tax 26 appeals tribunal shall be authorized to publish a copy or a summary of 27 any decision rendered pursuant to section one hundred seventy-one of the 28 charter of the preceding municipality as it existed January first, nine- 29 teen hundred ninety-four. 30 e. This section shall not apply to any information contained in or 31 relating to a return filed on or after the first day of January, two 32 thousand three with respect to a transaction or transfer occurring on or 33 after that date; provided, however, that this section shall continue to 34 apply to any social security account number contained in any report or 35 return pursuant to this chapter. 36 § 11-2116 Notices and limitations of time. a. Any notice authorized 37 or required under the provisions of this chapter may be given by mailing 38 the same to the person for whom it is intended in a postpaid envelope 39 addressed to such person at the address given in the last return filed 40 by him or her pursuant to the provisions of this chapter in any applica- 41 tion made by him or her, or in any deed or instrument which is the 42 subject of the notice, or, if no return has been filed or application 43 made or address stated in the deed or instrument, then to such address 44 as may be obtainable. The mailing of such notice shall be presumptive 45 evidence of the receipt of the same by the person to whom addressed. 46 Any period of time which is determined according to the provisions of 47 this chapter by the giving of notice shall commence to run from the date 48 of mailing of such notice. 49 b. The provisions of the civil practice law and rules or any other law 50 relative to limitations of time for the enforcement of a civil remedy 51 shall not apply to any proceeding or action taken by the city to levy, 52 appraise, assess, determine or enforce the collection of any tax or 53 penalty provided by this chapter. However, except in the case of a 54 wilfully false or fraudulent return with intent to evade the tax, no 55 assessment of additional tax shall be made after the expiration of more 56 than three years from the date of the filing of a return; provided,S. 8474 1063 1 however, that where no return has been filed as provided by law the tax 2 may be assessed at any time. 3 c. Where, before the expiration of the period prescribed in this 4 section for the assessment of an additional tax, a taxpayer has 5 consented in writing that such period be extended, the amount of such 6 additional tax due may be determined at any time within such extended 7 period. The period so extended may be further extended by subsequent 8 consents in writing made before the expiration of the extended period. 9 d. Except as otherwise provided in this subdivision, if any return, 10 claim, statement, notice, application, or other document required to be 11 filed, or any payment required to be made, within a prescribed period or 12 on or before a prescribed date under authority of any provision of this 13 chapter is, after such period or such date, delivered by United States 14 mail to the commissioner of finance, the tax appeals tribunal, bureau, 15 office, officer or person with which or with whom such document is 16 required to be filed, or to which or to whom such payment is required to 17 be made, the date of the United States postmark stamped on the envelope 18 shall be deemed to be the date of delivery. This subdivision shall apply 19 only if the postmark date falls within the prescribed period or on or 20 before the prescribed date for the filing of such document, or for 21 making the payment, including any extension granted for such filing or 22 payment, and only if such document or payment was deposited in the mail, 23 postage prepaid, properly addressed to the commissioner of finance, the 24 tax appeals tribunal, bureau, office, officer or person with which or 25 with whom the document is required to be filed or to which or to whom 26 such payment is required to be made. If any document is sent by United 27 States registered mail, such registration shall be prima facie evidence 28 that such document was delivered to the commissioner of finance, the tax 29 appeals tribunal, bureau, office, officer or person to which or to whom 30 addressed, and the date of registration shall be deemed the postmark 31 date. The commissioner of finance and, where relevant, the tax appeals 32 tribunal are authorized to provide by regulation the extent to which the 33 provisions of the preceding sentence with respect to prima facie 34 evidence of delivery and the postmark date shall apply to certified 35 mail. Except as provided in subdivision f of this section, this subdivi- 36 sion shall apply in the case of postmarks not made by the United States 37 postal service only if and to the extent provided by regulation of the 38 commissioner of finance or, where relevant, the tax appeals tribunal. 39 Any return filed electronically shall be deemed to be filed on the date 40 of issuance by the commissioner of finance of a confirmation. 41 e. When the last day prescribed under authority of this chapter, 42 including any extension of time, for performing any act falls on a 43 Saturday, Sunday or legal holiday in the state, the performance of such 44 act shall be considered timely if it is performed on the next succeeding 45 day which is not a Saturday, Sunday or legal holiday. 46 f. (1) Any reference in subdivision d of this section to the United 47 States mail shall be treated as including a reference to any delivery 48 service designated by the secretary of the treasury of the United States 49 pursuant to section seventy-five hundred two of the internal revenue 50 code and any reference in subdivision d of this section to a United 51 States postmark shall be treated as including a reference to any date 52 recorded or marked in the manner described in section seventy-five 53 hundred two of the internal revenue code by a designated delivery 54 service. If the commissioner of finance finds that any delivery service 55 designated by such secretary is inadequate for the needs of the city, 56 the commissioner of finance may withdraw such designation for purposesS. 8474 1064 1 of this title. The commissioner of finance may also designate additional 2 delivery services meeting the criteria of section seventy-five hundred 3 two of the internal revenue code for purposes of this title, or may 4 withdraw any such designation if the commissioner of finance finds that 5 a delivery service so designated is inadequate for the needs of the 6 city. Any reference in subdivision d of this section to the United 7 States mail shall be treated as including a reference to any delivery 8 service designated by the commissioner of finance and any reference in 9 subdivision d of this section to a United States postmark shall be 10 treated as including a reference to any date recorded or marked in the 11 manner described in section seventy-five hundred two of the internal 12 revenue code by a delivery service designated by the commissioner of 13 finance, provided, however, any withdrawal of designation or additional 14 designation by the commissioner of finance shall not be effective for 15 purposes of service upon the tax appeals tribunal, unless and until such 16 withdrawal of designation or additional designation is ratified by the 17 president of the tax appeals tribunal. 18 (2) Any equivalent of registered or certified mail designated by the 19 United States secretary of the treasury, or as may be designated by the 20 commissioner of finance pursuant to the same criteria used by such 21 secretary for such designations pursuant to section seventy-five hundred 22 two of the internal revenue code, shall be included within the meaning 23 of registered or certified mail as used in subdivision d of this 24 section. If the commissioner of finance finds that any equivalent of 25 registered or certified mail designated by such secretary or the commis- 26 sioner of finance is inadequate for the needs of the city, the commis- 27 sioner of finance may withdraw such designation for purposes of this 28 title, provided, however, any withdrawal of designation or additional 29 designation by the commissioner of finance shall not be effective for 30 purposes of service upon the tax appeals tribunal, unless and until such 31 withdrawal of designation or additional designation is ratified by the 32 president of the tax appeals tribunal. 33 § 11-2117 Construction and enforcement. This chapter shall be 34 construed and enforced in conformity with chapter ninety-three of the 35 laws of nineteen hundred sixty-five, as amended. 36 § 11-2118 Disposition of revenues. Except as otherwise provided, all 37 revenues resulting from the imposition of the tax under this chapter 38 shall be paid into the treasury of the city and shall be credited to and 39 deposited in the general fund of the city. Except as otherwise 40 provided, no part of such revenues may be expended unless appropriated 41 in the annual budget of the city. 42 § 11-2119 Foreclosure proceedings. Where the conveyance consists of a 43 transfer of property made as a result of an order of the court in a 44 foreclosure proceeding ordering the sale of such property, the referee 45 or sheriff effectuating the transfer shall not be liable for any inter- 46 est or penalties authorized by this chapter or chapter forty of this 47 title. 48 CHAPTER 22 49 TAX ON OWNERS OF MOTOR VEHICLES 50 § 11-2201 Definitions. When used in this chapter, the following terms 51 shall mean and include: 52 1. "City". The city of Staten Island. 53 2. "Commissioner of finance". The commissioner of finance of the city.S. 8474 1065 1 3. "Highway". The entire width between the boundary lines of every way 2 publicly maintained when any part thereof is open to the use of the 3 public for purposes of vehicular travel. 4 4. "Individual resident". One or more natural persons other than a 5 firm, copartnership, trustee or trustees conducting a business or asso- 6 ciation who, or one of whom, owns a motor vehicle registered or required 7 to be registered pursuant to section four hundred one of the vehicle and 8 traffic law, the registration fees for which are provided for by subdi- 9 vision six of such section, who, at the time he or she makes application 10 for registration or renewal thereof of such motor vehicle, or such 11 application is made on his or her behalf: (a) is domiciled in the city, 12 unless he or she maintains no permanent place of abode in the city, 13 maintains a permanent place of abode elsewhere, and during the period of 14 one year next preceding the date upon which such application is made, 15 spent in the aggregate not more than thirty days in the city; or (b) is 16 not domiciled in the city but maintains a permanent place of abode in 17 the city and, during the period of one year next preceding the date upon 18 which such application is made, spent in the aggregate more than one 19 hundred eighty-three days in the city, unless such individual is in the 20 armed forces of the United States. 21 5. "Motor vehicle". Every vehicle, except electrically-driven invalid 22 chairs being operated or driven by an invalid, operated or driven upon a 23 public highway by any power, other than muscular power, which includes 24 electric power obtained from overhead trolley wires, except vehicles 25 which run only upon rails or tracks. 26 6. "Other resident". Every firm, copartnership, trustee or trustees 27 conducting a business or association or a corporation, who or which 28 regularly keeps, stores, garages or maintains within the city a motor 29 vehicle owned by it which, at the time it makes application for regis- 30 tration or renewal of registration thereof, is registered or required to 31 be registered pursuant to subdivision six of section four hundred one of 32 the vehicle and traffic law. 33 7. "Person". Unless otherwise indicated, an individual, partnership, 34 society, association, joint-stock company, corporation, estate, receiv- 35 er, trustee, assignee, referee or any other person acting in a fiduciary 36 or representative capacity, whether appointed by a court or otherwise, 37 and any other form of unincorporated enterprise. 38 8. "Owner". A person, other than a lien holder, having the property in 39 or title to a vehicle. The term includes a person entitled to the use 40 and possession of a vehicle subject to a security interest in another 41 person. 42 9. "Vehicle". Every device in, upon or by which any person or property 43 is or may be transported or drawn upon a highway, except devices moved 44 by human power or used exclusively upon stationary rails or tracks. 45 10. "Leased or rented passenger motor vehicles". Any motor vehicle 46 owned by any person engaged in the business of renting or leasing motor 47 vehicles to be operated on the public highways for carrying passengers 48 registered or required to be registered pursuant to any provision of 49 section four hundred one of the vehicle and traffic law, which vehicle 50 at the time when application is made for registration, re-registration 51 or renewal thereof is regularly kept, stored, garaged or maintained in 52 the city, including such vehicles which have been rented and leased by 53 the owner and are in possession of lessees when such application for 54 registration, re-registration or renewal is made.S. 8474 1066 1 11. "Tax appeals tribunal." The tax appeals tribunal established by 2 section one hundred sixty-eight of the charter of the preceding munici- 3 pality as it existed January first, nineteen hundred ninety-four. 4 § 11-2202 Imposition of tax. Notwithstanding the provisions of 5 section four hundred of the vehicle and traffic law and of subdivision 6 ten of section four hundred one of the vehicle and traffic law to the 7 contrary, a tax of fifteen dollars per annum is hereby imposed: 8 1. With respect to each motor vehicle registered or required to be 9 registered pursuant to subdivision six of section four hundred one of 10 the vehicle and traffic law: 11 a. Upon each individual resident for each such motor vehicle regis- 12 tered or for which registration is renewed, or required to be registered 13 or renewed by him or her; and 14 b. Upon each other resident of each such motor vehicle regularly 15 kept, stored, garaged or maintained in the city and registered or 16 required to be registered or renewed by such other resident; and 17 2. With respect to each leased or rented passenger motor vehicle, 18 upon the owner thereof. 19 § 11-2203 Exemptions. The tax imposed by this chapter shall not be 20 imposed upon: 21 (1) owners of motor vehicles, the registration fees for which are or 22 may be prescribed, governed or established by subdivisions seven, except 23 for leased or rented passenger vehicles, eight, twelve, thirteen, 24 sixteen of section four hundred one, articles fifteen and sixteen, or 25 section four hundred twenty of the vehicle and traffic law; 26 (2) any owner to whom the provisions of the vehicle and traffic law 27 relative to registration and equipment of motor vehicles are made inap- 28 plicable by the provisions of article three of such law, for the period 29 of such inapplicability; 30 (3) the state of New York, or any of its agencies, instrumentalities, 31 public corporations, including a public corporation created pursuant to 32 agreement or compact with another state or the Dominion of Canada, or 33 political subdivision; 34 (4) the United States of America, and any of its agencies and instru- 35 mentalities insofar as it is immune from taxation; 36 (5) the United Nations or other international organizations of which 37 the United States of America is a member; 38 (6) any corporation, or association, or trust, or community chest, 39 fund or foundation, organized and operated exclusively for religious, 40 charitable, or educational purposes, or for the prevention of cruelty to 41 children or animals, and no part of the net earnings of which inures to 42 the benefit of any private shareholder or individual and no substantial 43 part of the activities of which is carrying on propaganda, or otherwise 44 attempting to influence legislation; provided, however, that nothing in 45 this subdivision shall include an organization operated for the primary 46 purpose of carrying on a trade or business for profit, whether or not 47 all of its profits are payable to one or more organizations described in 48 this subdivision. 49 § 11-2204 Payment of tax and evidence of tax payment. Every owner of 50 a motor vehicle subject to tax under this chapter shall pay the tax 51 thereon to the commissioner of motor vehicles of the state of New York 52 on or before the date upon which he or she registers or renews his or 53 her registration thereof or is required to register or renew his or her 54 registration thereof pursuant to section four hundred one of the vehicle 55 and traffic law.S. 8474 1067 1 Notwithstanding the provisions of section four hundred of the vehicle 2 and traffic law to the contrary, the payment of such tax shall be a 3 condition precedent to the registration or renewal thereof of such motor 4 vehicle and to the issuance of any certificate of registration and 5 plates or removable tag specified in subdivision three of section four 6 hundred one and in sections four hundred three and four hundred four of 7 the vehicle and traffic law, and no such certificate of registration, 8 plates or tag shall be issued unless such tax has been paid. The 9 commissioner of motor vehicles shall not issue a registration certif- 10 icate for any motor vehicle for which the registrant's address is with- 11 in any such city, except upon proof, in a form approved by the commis- 12 sioner of motor vehicles, that such tax has been paid, or is not due, 13 with respect to such motor vehicle. The commissioner of motor vehicles, 14 upon the payment of such tax or upon the application of any person 15 exempt therefrom, shall furnish to each taxpayer paying the tax a 16 receipt for such tax and to each such taxpayer or exempt person a state- 17 ment, document or other form approved by the commissioner of motor vehi- 18 cles, showing that such tax has been paid or is not due, with respect to 19 such motor vehicle. 20 § 11-2205 Returns. a. At the time the payment of the tax imposed by 21 this chapter becomes due, every person subject to tax under this chapter 22 shall file a return with the commissioner of motor vehicles in form and 23 containing such information as may be prescribed by such commissioner of 24 motor vehicles. The taxpayer's application for registration or the 25 renewal of registration shall constitute the return required under this 26 chapter, unless the commissioner of motor vehicles, by regulation, shall 27 otherwise provide. 28 b. Returns shall be preserved for three years and thereafter until 29 the commissioner of motor vehicles permits them to be destroyed. 30 c. The commissioner of motor vehicles may require amended returns or 31 certificates of facts to be filed within twenty days after notice and to 32 contain the information specified in the notice. Any such certificate 33 shall be deemed to be part of the return required to be filed. 34 d. If a return required by this chapter is not filed or if a return 35 when filed is incorrect or insufficient on its face the commissioner of 36 motor vehicles or the commissioner of finance if designated as his or 37 her agent shall take the necessary steps to enforce the filing of such a 38 return or of a corrected return. 39 § 11-2206 Determination of tax. If a return required by this chapter 40 is not filed or if a return when filed is incorrect or insufficient, or 41 if a tax or any part thereof due pursuant to this chapter be not paid 42 when required, the amount of tax due shall be determined by the commis- 43 sioner of motor vehicles or by the commissioner of finance if designated 44 as his or her agent, from such information as may be obtainable, includ- 45 ing motor vehicle registration with the department of motor vehicles of 46 the state of New York or other factors. Notice of such determination 47 shall be given to the person liable for the tax. Such a determination by 48 the commissioner of motor vehicles shall finally and irrevocably fix the 49 tax unless the person against whom it is assessed, within ninety days 50 after the giving of notice of such determination, shall apply to the 51 commissioner of motor vehicles for a hearing, or unless such commission- 52 er of his or her own motion shall redetermine the same. If the commis- 53 sioner of finance is designated as the agent of the commissioner of 54 motor vehicles, such a determination by the commissioner of finance 55 shall finally and irrevocably fix the tax unless the person against whom 56 it is assessed, within ninety days after the giving of such determi-S. 8474 1068 1 nation, or, if the commissioner of finance has established a concil- 2 iation procedure pursuant to section 11-124 of the code of the preceding 3 municipality and the taxpayer has requested a conciliation conference in 4 accordance therewith, within ninety days from the mailing of a concil- 5 iation decision or the date of the commissioner's confirmation of the 6 discontinuance of the conciliation proceeding, both (1) serves a peti- 7 tion upon the commissioner of finance and (2) applies to the tax appeals 8 tribunal for a hearing by filing a petition, or unless the commissioner 9 of finance of his or her own motion shall redetermine the same. A hear- 10 ing following a petition to the tax appeals tribunal and any appeal to 11 the tax appeals tribunal sitting en banc from the decision rendered in 12 such hearing shall be conducted in the manner and subject to the 13 requirements prescribed by the tax appeals tribunal pursuant to sections 14 one hundred sixty-eight through one hundred seventy-two of the charter 15 of the preceding municipality as it existed January first, nineteen 16 hundred ninety-four. After such hearing by the commissioner of motor 17 vehicles or the tax appeals tribunal, the commissioner of motor vehi- 18 cles, if he or she holds the hearing, or the tax appeals tribunal if the 19 tax appeals tribunal holds the hearing, shall give notice of the deter- 20 mination or decision to the person against whom the tax is assessed and 21 in the case of a tax appeals tribunal decision, to the commissioner of 22 finance. Such determination by the commissioner of motor vehicles, or a 23 decision of the tax appeals tribunal sitting en banc shall be reviewable 24 for error, illegality or unconstitutionality or any other reason whatso- 25 ever by a proceeding under article seventy-eight of the civil practice 26 law and rules if application therefor is made to the supreme court by 27 the person against whom the tax was assessed within four months after 28 the giving of the notice of such determination or tax appeals tribunal 29 decision. A proceeding under article seventy-eight of the civil prac- 30 tice law and rules shall not be instituted by a taxpayer unless (a) the 31 amount of any tax sought to be reviewed, with penalties and interest 32 thereon, if any, shall be first deposited with the commissioner of motor 33 vehicles and there shall be filed with the commissioner of motor vehi- 34 cles an undertaking, issued by a surety company authorized to transact 35 business in this state and approved by the superintendent of insurance 36 of this state as to solvency and responsibility, in such amount 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 taxpayer will pay all 39 costs and charges which may accrue in the prosecution of the proceeding; 40 or (b) at the option of the taxpayer such undertaking filed with the 41 commissioner of motor vehicles may be in a sum sufficient to cover the 42 taxes, penalties and interest thereon stated in such determination or 43 decision, plus the costs and charges which may accrue against it in the 44 prosecution of the proceeding, in which event the taxpayer shall not be 45 required to deposit such taxes, penalties and interest as a condition 46 precedent to the application. 47 § 11-2207 Refunds for certain unused registrations. Whenever any fee 48 or portion of a fee paid for the registration of a motor vehicle under 49 the provisions of the vehicle and traffic law is refunded pursuant to 50 the provisions of subdivision one of section four hundred twenty-eight 51 of the vehicle and traffic law, the amount of any tax paid pursuant to 52 this chapter upon such registration shall also be refunded by the 53 commissioner. 54 § 11-2208 Refunds. a. In the manner provided in this section the 55 commissioner of motor vehicles shall refund or credit, without interest, 56 any tax, penalty or interest erroneously, illegally or unconstitu-S. 8474 1069 1 tionally collected or paid if application for such refund shall be made 2 within one year from the payment thereof to the commissioner of motor 3 vehicles or to the commissioner of finance if designated as his or her 4 agent. Whenever a refund is made or denied, the reasons therefor shall 5 be stated in writing by the commissioner of motor vehicles or by the 6 commissioner of finance, as the case may be, who in lieu of any refund, 7 may allow credit therefor on payments due from the applicant. 8 b. (1) If the commissioner of motor vehicles has not designated the 9 commissioner of finance as his or her agent, application for a refund or 10 credit made as provided under this section shall be deemed an applica- 11 tion for a revision of any tax, penalty or interest complained of and 12 the commissioner of motor vehicles shall hold a hearing and receive 13 evidence with respect thereto. After such hearing, the commissioner of 14 motor vehicles shall give notice of the determination of such applica- 15 tion to the applicant who shall be entitled to review such determination 16 by a proceeding pursuant to article seventy-eight of the civil practice 17 law and rules, provided such proceeding is instituted within four months 18 after the giving of notice of such determination, and provided that a 19 final determination of tax due was not previously made. Such a proceed- 20 ing shall not be instituted unless an undertaking is filed with the 21 commissioner of motor vehicles in such amount and with such sureties as 22 a justice of the supreme court shall approve, to the effect that if such 23 proceeding be dismissed or the tax confirmed, the petitioner will pay 24 all costs and charges which may accrue in the prosecution of such 25 proceeding. 26 (2) If the commissioner of motor vehicles has designated the commis- 27 sioner of finance as his or her agent, a determination of the commis- 28 sioner of finance denying a refund or credit pursuant to subdivision a 29 of this section shall be final and irrevocable unless the applicant for 30 such refund or credit, within ninety days from the mailing of notice of 31 such determination, or, if the commissioner of finance has established a 32 conciliation procedure pursuant to section 11-124 of the code of the 33 preceding municipality and the applicant has requested a conciliation 34 conference in accordance therewith, within ninety days from the mailing 35 of a conciliation decision or the date of the commissioner's confirma- 36 tion of the discontinuance of the conciliation proceeding, both (1) 37 serves a petition upon the commissioner of finance and (2) files a peti- 38 tion with the tax appeals tribunal for a hearing. Such petition for a 39 refund or credit, made as provided under this section, shall be deemed 40 an application for a revision of any tax, penalty or interest complained 41 of. Such hearing and any appeal to the tax appeals tribunal sitting en 42 banc from the decision rendered in such hearing shall be conducted in 43 the manner and subject to the requirements prescribed by the tax appeals 44 tribunal pursuant to sections one hundred sixty-eight through one 45 hundred seventy-two of the charter of the preceding municipality as it 46 existed January first, nineteen hundred ninety-four. After such hearing, 47 the tax appeals tribunal shall give notice of its decision to the appli- 48 cant and to the commissioner of finance. The applicant shall be entitled 49 to institute a proceeding pursuant to article seventy-eight of the civil 50 practice law and rules to review a decision of the tax appeals tribunal 51 sitting en banc if application to the supreme court be made therefor 52 within four months after the giving of notice of such decision, and 53 provided, in the case of an application by a taxpayer, that a final 54 determination of tax due was not previously made. Such a proceeding 55 shall not be instituted by a taxpayer unless an undertaking shall first 56 be filed with the commissioner of motor vehicles, in such amount andS. 8474 1070 1 with such sureties as a justice of the supreme court shall approve, to 2 the effect that if such proceeding be dismissed or the tax confirmed, 3 the taxpayer will pay all costs and charges which may accrue in the 4 prosecution of such proceeding. 5 c. A person shall not be entitled to a revision, refund or credit 6 under this section of a tax, interest or penalty which has been deter- 7 mined to be due pursuant to the provisions of section 11-2206 of this 8 chapter where he or she has had a hearing or an opportunity for a hear- 9 ing, as provided in such section, or has failed to avail himself or 10 herself of the remedies provided in such section. No refund or credit 11 shall be made of a tax, interest or penalty paid after a determination 12 made pursuant to section 11-2206 of this chapter, unless it be found 13 that such determination was erroneous, illegal or unconstitutional or 14 otherwise improper after a hearing, or on his or her own motion, by the 15 commissioner of motor vehicles or after a hearing by the tax appeals 16 tribunal, or on his or her own motion by the commissioner of finance, as 17 the case may be, or in a proceeding under article seventy-eight of the 18 civil practice law and rules, pursuant to the provisions of said 19 section, in which event refund or credit without interest shall be made 20 of the tax, interest or penalty found to have been overpaid. 21 § 11-2209 Reserves. In cases where a taxpayer has applied for a 22 refund and has instituted a proceeding under article seventy-eight of 23 the civil practice law and rules to review a determination adverse to 24 such taxpayer on his or her application for refund, the commissioner of 25 motor vehicles shall set up appropriate reserves to meet any decision 26 adverse to the city. 27 § 11-2210 Remedies exclusive. The remedies provided by sections 28 11-2206 and 11-2208 of this chapter shall be the exclusive remedies 29 available to any person for the review of tax liability imposed by this 30 chapter; and no determination or proposed determination of tax or deter- 31 mination on any application for refund by the commissioner of motor 32 vehicles or by the commissioner of finance, nor any decision by the tax 33 appeals tribunal or any of its administrative law judges, shall be 34 enjoined or reviewed by an action for declaratory judgment, an action 35 for money had and received or by any action or proceeding other than, in 36 the case of a final determination by the commissioner of motor vehicles 37 or a decision by the tax appeals tribunal sitting en banc, a proceeding 38 in the nature of a certiorari proceeding under article seventy-eight of 39 the civil practice law and rules; provided, however, that a taxpayer may 40 proceed by declaratory judgment if he or she institutes suit within 41 thirty days after a deficiency assessment is made and pays the amount of 42 the deficiency assessment to the commissioner of motor vehicles prior to 43 the institution of such suit and posts a bond for costs as provided in 44 section 11-2206 of this chapter. 45 § 11-2211 Proceedings to recover tax. a. Whenever any person shall 46 fail to pay any tax, penalty or interest imposed by this chapter, the 47 corporation counsel, upon the request of the commissioner of motor vehi- 48 cles or of the commissioner of finance if designated as his or her 49 agent, shall bring or cause to be brought an action to enforce the 50 payment of the same on behalf of the city of Staten Island in any court 51 of the state of New York or of any other state of the United States. 52 However, if in his or her discretion the commissioner of motor vehicles, 53 or the commissioner of finance if designated as his or her agent, 54 believes that any such person subject to the provisions of this chapter 55 is about to cease business, leave the state or remove or dissipate the 56 assets out of which the tax or penalty might be satisfied, and that anyS. 8474 1071 1 such tax or penalty will not be paid when due, he or she may declare 2 such tax or penalty to be immediately due and payable and may issue a 3 warrant immediately. 4 b. As an additional or alternate remedy, the commissioner of motor 5 vehicles, or the commissioner of finance if designated as his or her 6 agent, may issue a warrant, directed to the city sheriff commanding him 7 or her to levy upon and sell the real and personal property of the 8 person liable for the tax which may be found within the city, for the 9 payment of the amount thereof, with any penalty and interest, and the 10 cost of executing the warrant, and to return such warrant to the person 11 who issued it and to pay to him or her the money collected by virtue 12 thereof within sixty days after the receipt of such warrant. The city 13 sheriff shall within five days after the receipt of the warrant file 14 with the county clerk a copy thereof, and thereupon such clerk shall 15 enter in the judgment docket the name of the person mentioned in the 16 warrant and the amount of the tax, penalty and interest for which the 17 warrant is issued and the date when such copy is filed. Thereupon the 18 amount of such warrant so docketed shall become a lien upon the title to 19 and the interest in real and personal property of the person against 20 whom the warrant is issued. The city sheriff shall then proceed upon 21 the warrant in the same manner, and with like effect, as that provided 22 by law in respect to executions issued against property upon judgments 23 of a court of record and for services in executing the warrant such 24 sheriff shall be entitled to the same fees, which he or she may collect 25 in the same manner. In the discretion of the commissioner of motor 26 vehicles, or of the commissioner of finance if designated as his or her 27 agent, a warrant of like terms, force and effect may be issued and 28 directed to an officer or employee of the department of finance of the 29 city, and in the execution thereof such officer or employee shall have 30 all the powers conferred by law upon sheriffs, but shall be entitled to 31 no fee or compensation in excess of the actual expenses paid in the 32 performance of such duty. If a warrant is returned not satisfied in 33 full, the commissioner of motor vehicles or the commissioner of finance, 34 as the case may be, may from time to time issue new warrants and shall 35 also have the same remedies to enforce the amount due thereunder as if 36 he or she had recovered judgment therefor and execution thereon had been 37 returned unsatisfied. 38 c. The commissioner of finance, if he or she finds that the interests 39 of the city will not thereby be jeopardized, and upon such conditions as 40 the commissioner of finance may require, may release any property from 41 the lien of any warrant or vacate such warrant for unpaid taxes, addi- 42 tions to tax, penalties and interest filed pursuant to subdivision b of 43 this section, and such release or vacating of the warrant may be 44 recorded in the office of any recording officer in which such warrant 45 has been filed. The clerk shall thereupon cancel and discharge as of the 46 original date of docketing the vacated warrant. 47 § 11-2212 General powers of the commissioner of motor vehicles. In 48 addition to the powers granted to the commissioner of motor vehicles in 49 this chapter, he or she is hereby authorized and empowered: 50 1. To make, adopt and amend rules and regulations appropriate to the 51 carrying out of this chapter and the purposes thereof; 52 2. For cause shown, to remit penalties; and to compromise disputed 53 claims in connection with the taxes imposed under this chapter; 54 3. To request information concerning motor vehicles and persons 55 subject to the provisions of this chapter from the department of motor 56 vehicles of any other state or the treasury department of the UnitedS. 8474 1072 1 States, or any city or county of the state of New York; and to afford 2 such information to such other state, treasury department, city or coun- 3 ty, any provision of this chapter to the contrary notwithstanding; 4 4. To delegate his or her functions under this section to a deputy 5 commissioner in the department of motor vehicles or any employee or 6 employees of his or her department or to any county clerk or other offi- 7 cer who acts as the agent of such commissioner in the registration of 8 motor vehicles; 9 5. To prescribe methods for determining the tax; 10 6. To require all persons owning motor vehicles subject to tax to 11 keep such records as he or she may prescribe and to furnish such infor- 12 mation upon his or her request; 13 7. To request the police department of the city to assist in the 14 enforcement of the provisions of this chapter. 15 § 11-2213 Administration of oaths and compelling testimony. a. The 16 commissioner of motor vehicles or his or her employees or agents duly 17 designated and authorized by such commissioner, and the tax appeals 18 tribunal, shall have power to administer oaths and take affidavits in 19 relation to any matter or proceeding in the exercise of the powers and 20 duties under this chapter. The commissioner of motor vehicles, or the 21 commissioner of finance if designated as his or her agent or the tax 22 appeals tribunal, shall have the power to subpoena and require the 23 attendance of witnesses and the production of books, papers and docu- 24 ments to secure information pertinent to the performance of the duties 25 of the commissioner of motor vehicles, the commissioner of finance or 26 the tax appeals tribunal pursuant to this chapter and of the enforcement 27 of this chapter and to examine them in relation thereto, and to issue 28 commissions for the examination of witnesses who are out of the state or 29 unable to attend before him or her or the tax appeals tribunal or 30 excused from attendance. 31 b. A justice of the supreme court either in court or at chambers shall 32 have power summarily to enforce by proper proceedings the attendance and 33 testimony of witnesses and production and examination of books, papers 34 and documents called for by the subpoena of the commissioner of motor 35 vehicles, or, if the commissioner of finance is designated as his or her 36 agent under this chapter, of the commissioner of finance and the tax 37 appeals tribunal. 38 c. Cross-reference; criminal penalties. For failure to obey subpoenas 39 or for testifying falsely, see section 11-4007 of this title; for 40 supplying false or fraudulent information, see section 11-4009 of this 41 title. 42 d. The officers who serve the summons or subpoena of the commissioner 43 of motor vehicles, or the commissioner of finance if designated as his 44 or her agent, or the tax appeals tribunal if the commissioner of finance 45 is designated as the agent of the commissioner of motor vehicles, and 46 witnesses attending in response thereto shall be entitled to the same 47 fees as are allowed to officers and witnesses in civil cases in courts 48 of record, except as otherwise provided in this section. Such officers 49 shall be the city sheriff and his or her duly appointed deputies, or any 50 officers or employees of the department of motor vehicles designated by 51 the commissioner of motor vehicles to serve such process or any officers 52 or employees of the department of finance of the city designated by the 53 commissioner of finance to serve such process or any officers or employ- 54 ees of the tax appeals tribunal designated to serve such process. 55 § 11-2214 Penalties and interest. a. Any person failing to file a 56 return or to pay any tax or any portion thereof within the time requiredS. 8474 1073 1 by this chapter shall be subject to a penalty of five times the amount 2 of the tax due, plus interest of five percent of such tax for each month 3 of delay or fraction thereof, but the commissioner of motor vehicles, or 4 the commissioner of finance if designated as his or her agent, if satis- 5 fied that the delay was excusable, may remit all or any part of such 6 penalty, but not interest at the rate of six percent per year. Penal- 7 ties and interest shall be paid and disposed of in the same manner as 8 other revenues under this chapter. Unpaid penalties and interest may be 9 enforced in the same manner as the tax imposed by this chapter. 10 b. The certificate of the commissioner of motor vehicles or of the 11 commissioner of finance if designated as his or her agent to the effect 12 that a tax has not been paid, or that a return required by this chapter 13 has not been filed, or that information has not been supplied pursuant 14 to the provisions of this chapter shall be presumptive evidence thereof. 15 c. Cross-reference: For criminal penalties, see chapter forty of this 16 title. 17 § 11-2215 Returns to be secret. a. Except in accordance with proper 18 judicial order or as otherwise provided by law, it shall be unlawful for 19 the commissioner of motor vehicles, any officer or employee of the 20 department of motor vehicles, the commissioner of finance, any officer 21 or employee of the department of finance, the tax appeals tribunal, any 22 commissioner or employee of such tribunal, any agent of the commissioner 23 of motor vehicles, or any person who, pursuant to this section, is 24 permitted to inspect any return or to whom a copy, an abstract or 25 portion of any return is furnished, or to whom any information contained 26 in any return is furnished to divulge or make known in any manner any 27 information contained in or relating to any return provided for by this 28 chapter. The officers charged with the custody of such returns shall 29 not be required to produce any of them or evidence of anything contained 30 in them in any action or proceeding in any court, except on behalf of 31 the commissioner of motor vehicles or the commissioner of finance in an 32 action or proceeding under the provisions of this chapter, or on behalf 33 of any party to an action or proceeding under the provisions of this 34 chapter when the returns or facts shown thereby are directly involved in 35 such action or proceeding, in either of which events the court may 36 require the production of, and may admit in evidence, so much of said 37 returns or of the facts shown thereby, as are pertinent to the action or 38 proceeding and no more. The commissioner of motor vehicles may, never- 39 theless, publish a copy or a summary of any determination or decision 40 rendered after a formal hearing held pursuant to section 11-2206 or 41 11-2208 of this chapter. Nothing under this section shall be construed 42 to prohibit the delivery to a person or his or her duly authorized 43 representative of a certified copy of any return filed by him or her 44 pursuant to this chapter, or of the receipt, document or other form 45 issued pursuant to section 11-2204 of this chapter, or a duplicate copy 46 thereof; nor to prohibit the delivery of such a certified copy of such 47 return or of any information contained in or relating thereto, to the 48 United States of America or any department thereof, the state of New 49 York or any department thereof, the city of Staten Island or any depart- 50 ment thereof provided the same is required for official business; nor to 51 prohibit the inspection for official business of such returns by the 52 corporation counsel or other legal representatives of the city or by the 53 district attorney of Richmond county; nor to prohibit the publication of 54 statistics so classified as to prevent the identification of particular 55 returns or items thereof.S. 8474 1074 1 b. (1) Any officer or employee of the state of New York or the city 2 who willfully violates the provisions of subdivision a of this section 3 shall be dismissed from office and be incapable of holding any public 4 office in the state of New York or this city for a period of five years 5 thereafter. 6 (2) Cross-reference: For criminal penalties, see chapter forty of this 7 title. 8 c. This section shall be deemed a state statute for purposes of para- 9 graph (a) of subdivision two of section eighty-seven of the public offi- 10 cers law. 11 d. Notwithstanding anything in subdivision a of this section to the 12 contrary, if a taxpayer has petitioned the tax appeals tribunal for 13 administrative review as provided in section one hundred seventy of the 14 charter of the preceding municipality as it existed January first, nine- 15 teen hundred ninety-four, the commissioner of finance shall be author- 16 ized to present to the tax appeals tribunal any report or return of such 17 taxpayer, or any information contained therein or relating thereto, 18 which may be material or relevant to the proceeding before the tax 19 appeals tribunal. The tax appeals tribunal shall be authorized to 20 publish a copy or a summary of any decision rendered pursuant to section 21 one hundred seventy-one of the charter of the preceding municipality as 22 it existed January first, nineteen hundred ninety-four. 23 § 11-2216 Notices and limitations of time. a. Any notice authorized or 24 required under the provisions of this chapter may be given by mailing 25 the same to the person for whom it is intended in a postpaid envelope 26 addressed to such person at the address given in the last return filed 27 by him or her pursuant to the provisions of this chapter, in any appli- 28 cation made by him or her, or in any application for registration made 29 by him or her pursuant to section four hundred one of the vehicle and 30 traffic law or, if no return has been filed or application made, then to 31 such address as may be obtainable. The mailing of such notice shall be 32 presumptive evidence of the receipt of the same by the person to whom 33 addressed. Any period of time which is determined according to the 34 provisions of this chapter by the giving of notice shall commence to run 35 from the date of mailing of such notice. 36 b. The provisions of the civil practice law and rules or any other law 37 relative to limitations of time for the enforcement of a civil remedy 38 shall not apply to any proceeding or action taken by the commissioner of 39 motor vehicles, or the commissioner of finance if designated as his or 40 her agent, to levy, appraise, assess, determine or enforce the 41 collection of any tax or penalty provided by this chapter. However, 42 except in the case of a wilfully false or fraudulent return with intent 43 to evade the tax, no assessment of additional tax shall be made after 44 the expiration of more than three years from the date of the filing of a 45 return; provided, however, that where no return has been filed as 46 provided by law the tax may be assessed at any time. 47 c. Where, before the expiration of the period prescribed under this 48 section for the assessment of an additional tax, a taxpayer has 49 consented in writing that such period be extended, the amount of such 50 additional tax may be determined at any time within such extended peri- 51 od. The period so extended may be further extended by subsequent 52 consents in writing made before the expiration of the extended period. 53 d. If any return, claim, statement, notice, application, or other 54 document required to be filed, or any payment required to be made, with- 55 in a prescribed period or on or before a prescribed date under authority 56 of any provision of this title is, after such period or such date,S. 8474 1075 1 delivered by United States mail to the commissioner of motor vehicles, 2 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 3 cer or person with which or with whom such document is required to be 4 filed, or to which or to whom such payment is required to be made, the 5 date of the United States postmark stamped on the envelope shall be 6 deemed to be the date of delivery. This subdivision shall apply only if 7 the postmark date falls within the prescribed period or on or before the 8 prescribed date for the filing of such document, or for making the 9 payment, including any extension granted for such filing or payment, and 10 only if such document or payment was deposited in the mail, postage 11 prepaid, properly addressed to the commissioner of motor vehicles, 12 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 13 cer or person with which or with whom the document is required to be 14 filed or to which or to whom such payment is required to be made. If any 15 document is sent by United States registered mail, such registration 16 shall be prima facie evidence that such document was delivered to the 17 commissioner of motor vehicles, commissioner of finance, the tax appeals 18 tribunal, bureau, office, officer or person to which or to whom 19 addressed, and the date of registration shall be deemed the postmark 20 date. The commissioner of motor vehicles is authorized to provide by 21 regulation the extent to which, such provisions with respect to prima 22 facie evidence of delivery and the postmark date, shall apply to certi- 23 fied mail. This subdivision shall apply in the case of postmarks not 24 made by the United States Postal Service only if and to the extent 25 provided by regulation of the commissioner of motor vehicles. 26 e. When the last day prescribed under authority of this title, includ- 27 ing any extension of time, for performing any act falls on a Saturday, 28 Sunday or legal holiday in the state of New York, the performance of 29 such act shall be considered timely if it is performed on the next 30 succeeding day which is not a Saturday, Sunday or legal holiday. 31 § 11-2217 Commissioner of finance as agent. The commissioner of motor 32 vehicles is hereby authorized to designate the commissioner of finance 33 as his or her agent to exercise any or all of his or her functions and 34 powers specified or provided for in subdivision (d) of section 11-2205 35 and in sections 11-2206, 11-2208, 11-2211, 11-2213, 11-2214 and 11-2216 36 of this chapter. Where the commissioner of finance has been so desig- 37 nated as agent, the commissioner of finance, in addition to the powers 38 elsewhere granted to him or her in this chapter, is hereby authorized 39 and empowered: 40 1. To delegate such functions and powers to a commissioner or deputy 41 commissioner in the department of finance or to any employee or employ- 42 ees of the department of finance; 43 2. For cause shown, to remit penalties and to compromise disputed 44 claims in connection with the taxes hereby imposed; 45 3. To request information concerning motor vehicles and persons 46 subject to the provisions of this chapter from the department of motor 47 vehicles of any other state or the treasury department of the United 48 States, or any city or county of the state of New York; and to afford 49 such information to such other state, treasury department, city or coun- 50 ty, any provision of this chapter to the contrary notwithstanding; 51 4. To request the police department of the city to assist in the 52 enforcement of the provisions of this chapter. 53 § 11-2218 Agreement between commissioner of finance and commissioner 54 of motor vehicles. The commissioner of finance is hereby authorized and 55 empowered to enter into an agreement with the commissioner of motor 56 vehicles to govern the administration and collection of the taxesS. 8474 1076 1 imposed by this chapter, which agreement shall provide for the exclusive 2 method of collection of such taxes, custody and remittal of the proceeds 3 of such tax; for the payment by the city of the reasonable expenses 4 incurred by the department of motor vehicles in collecting and adminis- 5 tering such tax; and for the audit, upon request of the commissioner of 6 finance or his or her delegate, of the accuracy of the payments, 7 distributions and remittances to the commissioner of finance pursuant to 8 the provisions of this chapter, to be conducted at a time agreed upon by 9 the state comptroller and to be allowed not more frequently than once in 10 each calendar year. Such agreement shall have the force and effect of a 11 rule or regulation of the commissioner of motor vehicles, and shall be 12 filed and published in accordance with any statutory requirements relat- 13 ing thereto. 14 § 11-2219 Notification to corporation counsel. The commissioner of 15 motor vehicles shall promptly notify the corporation counsel of the city 16 of any litigation instituted against him or her which challenges the 17 constitutionality or validity of any provision of this chapter, or of 18 the enabling act pursuant to which it was adopted, or which attempts to 19 limit or question the applicability of either such law, and such notifi- 20 cation shall include a copy of the papers served upon him or her. 21 § 11-2220 Construction and enforcement. This chapter shall be 22 construed and enforced in conformity with subdivisions (g) and (h) of 23 section twelve hundred one of the tax law, pursuant to which it is 24 enacted. 25 § 11-2221 Disposition of revenues. All revenues resulting from the 26 imposition of the tax under this chapter shall be paid into the treasury 27 of the city and shall be credited to and deposited in the general fund 28 of the city, but no part of such revenues may be expended unless appro- 29 priated in the annual budget of the city. 30 CHAPTER 23-A 31 ENHANCED 911 TELEPHONE SURCHARGE 32 § 11-2321 Short title. This chapter shall be known and may be cited as 33 the "enhanced 911 telephone surcharge act." 34 § 11-2322 Definitions. When used in this chapter the following terms 35 shall mean: 36 (a) "E911 system" means an enhanced emergency telephone service which 37 automatically connects a person dialing the digits 9-1-1 to the answer- 38 ing point established within the city of Staten Island police depart- 39 ment, and which shall include, but not be limited to, selective routing, 40 automatic number identification and automatic location identification. 41 (b) "Lifeline" means a discounted or low-priced telephone service 42 available to eligible low-income residential customers. 43 (c) "Access line" means a communications circuit that connects a 44 customer location to a facility housing the switching system and related 45 equipment that provides telephone service. 46 (d) "911 service area" means the area within the geographic boundaries 47 of the city of Staten Island. 48 (e) "Municipality" means any New York city agency, or any public bene- 49 fit corporation, local development corporation or other governmental 50 entity the majority of whose members or governing body is appointed by a 51 city official. 52 (f) "Public safety agency" means a public safety agency as defined in 53 subdivision five of section three hundred one of the county law.S. 8474 1077 1 (g) "Service supplier" means a service supplier as defined in subdivi- 2 sion seven of section three hundred one of the county law that provides 3 service within the 911 service area. 4 (h) "System costs" means the costs associated with obtaining and main- 5 taining the telecommunication equipment, all operations and maintenance 6 costs and the telephone services costs necessary to establish and 7 provide an E911 system. 8 (i) "Voice over internet protocol service" or "VOIP service" shall 9 mean any service that (1) enables real-time, two-way voice communi- 10 cations; (2) requires a broadband connection from the user's location; 11 (3) requires internet protocol compatible customer premises equipment 12 (CPE); and (4) permits users generally to receive calls that originate 13 on the public switched telephone network and to terminate calls to the 14 public switched telephone network. 15 § 11-2323 Establishment of surcharge for E911 system. (a) In accord- 16 ance with the provisions of article six of the county law, as amended, 17 there is hereby established a surcharge of one dollar per telephone 18 access line, or equivalent, per month on the customers of every service 19 supplier within the city of New York. 20 (b) The surcharge imposed by subdivision (a) of this section shall be 21 used to pay for the costs associated with obtaining, operating and main- 22 taining the telecommunication equipment and telephone services needed to 23 provide an enhanced 911 emergency telephone system to serve the city of 24 New York. 25 (c) All service suppliers that provide local access service within the 26 911 service area in the city of New York shall begin to add the monthly 27 surcharge of one dollar per telephone access line per month as provided 28 in subdivision (a) of this section to all service bills no later than 29 the forty-fifth day after the effective date of the local law that 30 increased such surcharge to one dollar per telephone access line per 31 month. Notwithstanding the provisions of this subdivision, all provid- 32 ers of voice over internet protocol service that provide such service 33 within the 911 service area shall begin to add the monthly surcharge of 34 one dollar per telephone access line, or equivalent, per month as 35 provided in subdivision (a) of this section to all service bills no 36 later than September fifth, two thousand ten. 37 § 11-2324 Application; limitations; exemptions. (a) The surcharge 38 established pursuant to the provisions of section 11-2323 of this chap- 39 ter shall be imposed on a per access line basis on all current bills 40 rendered for local exchange access service within the 911 service area. 41 (b) No such surcharge shall be imposed upon: 42 (1) more than seventy-five exchange access lines per customer per 43 location; 44 (2) any lifeline customers of a local telephone service supplier; or 45 (3) a public safety agency; or 46 (4) any municipality, as defined in subdivision (e) of section 11-2322 47 of this chapter. 48 § 11-2325 Collection of surcharge. (a) The appropriate service suppli- 49 er or suppliers serving the city of Staten Island 911 service area shall 50 act as collection agents for the city and shall remit the funds 51 collected as the surcharge to the commissioner of finance each month. 52 Such funds shall be remitted no later than thirty days after the last 53 business day of such period. 54 (b) The service supplier shall be entitled to retain as an administra- 55 tive fee an amount equal to two per cent of its collections of the 56 surcharge.S. 8474 1078 1 (c) The surcharge required to be collected by the service supplier 2 shall be added to and stated separately in its billings to the customer. 3 (d) The service supplier shall annually provide to the commissioner of 4 finance an accounting of the surcharge amounts billed and collected. 5 § 11-2326 Liability for surcharge. (a) Each service supplier who is 6 subject to the provisions of this chapter shall be liable to the city 7 for the surcharge until it has been paid to the city, except that 8 payment to a service supplier is sufficient to relieve the customer from 9 further liability for such surcharge. 10 (b) The service supplier customer shall have no obligation to take any 11 legal action to enforce the collection of any surcharge. However, when- 12 ever the service supplier remits the funds collected as the surcharge to 13 the city, it shall also provide the city with the name and address of 14 any customer refusing or failing to pay the surcharge imposed by this 15 chapter and shall state the amount of such surcharge remaining unpaid. 16 § 11-2327 System revenues; adjustment of surcharge. (a) All surcharge 17 monies remitted to the commissioner of finance by a service supplier and 18 all other monies dedicated to the payment of system costs from whatever 19 source derived or received by the city of Staten Island shall be 20 expended only upon authorization of the council, and only for payment of 21 system costs as permitted by this chapter. The finance commissioner and 22 the director of the office of management and budget shall separately 23 account for and keep adequate records of the amount and source of all 24 such revenues and of the amount and object or purpose of all expendi- 25 tures thereof. 26 (b) If at the end of any fiscal year the total amount of all such 27 revenues exceeds the amount necessary for payment of system costs in 28 such fiscal year, such excess shall be reserved and carried over for the 29 payment of system costs in the following fiscal year. However, if at the 30 end of any fiscal year in conformance with applicable law, such E911 31 reserved fund balance exceeds an amount equal to five per cent of that 32 necessary for the payment of system costs in such fiscal year, the coun- 33 cil shall by local law reduce the surcharge for the following fiscal 34 year to a level that more adequately reflects the system cost require- 35 ments of its E911 system. The council may also reestablish or increase 36 such surcharge, subject to the provisions of section three hundred three 37 of the county law, if the revenues generated by such surcharge and by 38 any other source are not adequate to pay for system costs. 39 CHAPTER 23-B 40 WIRELESS COMMUNICATIONS SERVICE SURCHARGE 41 § 11-2341 Short title. This chapter shall be known and may be cited as 42 the "wireless communications service surcharge act." 43 § 11-2342 Definitions. (a) "Wireless communications device" means any 44 equipment used to access a wireless communications service. 45 (b) "Wireless communications service" means all commercial mobile 46 services, as that term is defined in subdivision (d) of section three 47 hundred thirty-two of title forty-seven of the United States Code, as 48 amended from time to time, including, but not limited to, all broadband 49 personal communications services, wireless radio telephone services, 50 geographic area specialized and enhanced specialized mobile radio 51 services, and incumbent-wide area specialized mobile radio licensees, 52 which offer real time, two-way voice or data service that is intercon- 53 nected with the public switched telephone network or otherwise provides 54 access to emergency communications services. 55 (c) "Wireless communications service supplier" means any commercial 56 entity that operates a wireless communications service.S. 8474 1079 1 (d) "Place of primary use" means the street address that is represen- 2 tative of where the customer's use of the wireless communications 3 service primarily occurs, which address must be either the residential 4 street address or the primary business street address of the customer; 5 and within the licensed service area of the wireless communications 6 service provider. 7 § 11-2343 Establishment of surcharge for wireless communications 8 devices. (a) In accordance with the provisions of article six of the 9 county law, as amended, there is hereby established a surcharge of thir- 10 ty cents per month on wireless communications service in the city of New 11 York. The surcharge shall be imposed on each wireless communications 12 device and shall be reflected and made payable on bills rendered for 13 wireless communications service that is provided to a customer whose 14 place of primary use is within the city of New York. 15 (b) The surcharge imposed by subdivision (a) of this section shall be 16 used to pay for the costs associated with the design, construction, 17 operation, maintenance, and administration of public safety communi- 18 cations networks serving the city of New York. 19 (c) All wireless communications service suppliers that provide service 20 to customers whose place of primary use is within the city of New York 21 shall begin to add the monthly surcharge as provided in subdivision (a) 22 of this section to all service bills no later than the forty-fifth day 23 after the effective date of the local law that added this chapter. 24 (d) Notwithstanding any provision of law to the contrary, no surcharge 25 shall be imposed pursuant to this chapter on or after December first, 26 two thousand seventeen. 27 § 11-2344 Collection of surcharge. (a) Each wireless communications 28 service supplier serving the city of New York shall act as collection 29 agent for the city of Staten Island and shall remit the funds collected 30 pursuant to the surcharge imposed under the provisions of this chapter 31 to the commissioner of finance each month. Such funds shall be remitted 32 no later than thirty days after the last business day of the month. 33 (b) Each wireless communications service supplier shall be entitled to 34 retain, as an administrative fee, an amount equal to two per cent of its 35 collections of the surcharge. 36 (c) The surcharge required to be collected by the wireless communi- 37 cations service supplier shall be added to and stated separately in its 38 billings to customers. 39 (d) Each wireless communications service supplier shall annually 40 provide to the city of Staten Island an accounting of the surcharge 41 amounts billed and collected. 42 § 11-2345 Liability for surcharge. (a) Each wireless communications 43 service customer who is subject to the provisions of this chapter shall 44 be liable to the city of Staten Island for the surcharge until it has 45 been paid to the city except that payment to a wireless communications 46 service supplier is sufficient to relieve the customer from further 47 liability for such surcharge. 48 (b) No wireless communications service supplier shall have a legal 49 obligation to enforce the collection of any surcharge imposed under the 50 provisions of this chapter, provided, however, that whenever the wire- 51 less communications service supplier remits the funds collected to the 52 city of Staten Island, it shall also provide the city with the name and 53 address of any customer refusing or failing to pay the surcharge and 54 shall state the amount of such surcharge remaining unpaid. 55 § 11-2346 Systems revenues; adjustment of surcharge. (a) All surcharge 56 monies remitted to the city of Staten Island by a wireless communi-S. 8474 1080 1 cations service supplier shall be expended only upon authorization of 2 the council and only for payment of system costs or other costs associ- 3 ated with the design, construction, operation, maintenance, and adminis- 4 tration of public safety communications networks serving the city of 5 Staten Island. The finance commissioner and the director of the office 6 of management and budget shall separately account for and keep adequate 7 books and records of the amount and source of all such monies and of the 8 amount and object or purpose of all expenditures thereof. 9 (b) If, at the end of any fiscal year, the total amount of all such 10 monies exceeds the amount necessary for payment of the above mentioned 11 costs in such fiscal year, such excess shall be reserved and carried 12 over for the payment of those costs in the following fiscal year. 13 CHAPTER 23-C 14 WIRELESS COMMUNICATIONS SURCHARGE 15 § 11-2351 Surcharge on wireless communications service. (a) There is 16 hereby imposed within the territorial limits of the city of Staten 17 Island, in accordance with the provisions of section one hundred eight- 18 y-six-g of the tax law, a surcharge on wireless communications service, 19 as such surcharge is described in paragraph (b) of subdivision two of 20 section one hundred eighty-six-g of the tax law. 21 (b) Such surcharge shall be imposed at the rate of thirty cents per 22 month on each wireless communications device in service during any part 23 of the month. 24 (c) A wireless communications service supplier shall begin to add such 25 surcharge to the billings of its customers on December first, two thou- 26 sand seventeen. 27 § 11-2352 Surcharge on the retail sale of each prepaid wireless commu- 28 nications service. (a) There is hereby imposed within the territorial 29 limits of the city of Staten Island, in accordance with the provisions 30 of section one hundred eighty-six-g of the tax law, a surcharge on 31 prepaid wireless communications service, as such surcharge is described 32 in paragraph (c) of subdivision two of section one hundred eighty-six-g 33 of the tax law. 34 (b) Such surcharge shall be imposed at the rate of thirty cents per 35 retail sale. 36 (c) A prepaid wireless communications seller shall begin to collect 37 such surcharge from its customers on December first, two thousand seven- 38 teen. 39 CHAPTER 24 40 TAX ON RETAIL LICENSEES OF THE STATE LIQUOR AUTHORITY 41 § 11-2401 Definitions. When used in this chapter the following terms 42 shall mean or include: 43 1. "Person." An individual, partnership, society, association, joint- 44 stock company, corporation, estate, receiver, lessee, trustee, assignee, 45 referee, or any other person acting in a fiduciary or representative 46 capacity, whether appointed by a court or otherwise, and any combination 47 of individuals. 48 2. "Retail licensee." Any person to whom a license has been issued 49 by the state liquor authority under the state alcoholic beverage control 50 law who sells at retail in the city, for on or off premises consumption, 51 any liquor, wine or beer for the sale of which such license is required.S. 8474 1081 1 3. "Return." Any return required to be filed as provided under this 2 chapter. 3 4. "State." The state of New York. 4 5. "City." The city of Staten Island. 5 6. "Commissioner." The commissioner of finance of the city of Staten 6 Island. 7 7. "Tax year." June first of any calendar year through May thirty- 8 first of the following calendar year. 9 8. "Tax appeals tribunal." The tax appeals tribunal established by 10 section one hundred sixty-eight of the charter of the preceding munici- 11 pality as it existed January first, nineteen hundred ninety-four. 12 § 11-2402 Imposition of tax. For the privilege of selling liquor, 13 wine or beer at retail, for on or off premises consumption, within the 14 city of Staten Island, there is hereby imposed and there shall be paid 15 annually for each tax year, commencing with the tax year beginning June 16 first, nineteen hundred eighty, a tax to be paid by each retail licensee 17 in an amount equal to twenty-five percent of the license fees payable 18 under the state alcoholic beverage control law by such retail licensee 19 for the license year in effect at the commencement of the tax year under 20 this chapter. A retail licensee who obtains a license subsequent to the 21 commencement of a tax year shall pay the tax based upon fees payable 22 under the state alcoholic beverage control law by such licensee for the 23 license year in effect at the time such license is issued. This tax 24 shall be in addition to any and all other taxes paid by such retail 25 licensee. 26 § 11-2403 Exemptions. The tax imposed by this chapter shall not apply 27 to the following: 28 (a) The state of New York, or any of its agencies, instrumentalities, 29 public corporations, including a public corporation created pursuant to 30 agreement or compact with another state or Canada, or political subdivi- 31 sions; 32 (b) The United States of America, and any of its agencies and instru- 33 mentalities insofar as it is immune from taxation; 34 (c) The United Nations or other international organizations of which 35 the United States of America is a member; and 36 (d) Any corporation, or association, or trust, or community chest, 37 fund or foundation, organized and operated exclusively for religious, 38 charitable, or educational purposes, or for the prevention of cruelty to 39 children or animals, and no part of the net earnings of which inures to 40 the benefit of any private shareholder or individual, and no substantial 41 part of the activities of which is carrying on propaganda, or otherwise 42 attempting to influence legislation; provided, however, that nothing in 43 this paragraph shall include an organization operated for the primary 44 purpose of carrying on a trade or business for profit, whether or not 45 all of its profits are payable to one or more organizations described in 46 this subdivision. 47 § 11-2404 Records to be kept. Every retail licensee shall keep such 48 records of its business and in such form as the commissioner may by 49 regulation require. Such records shall be offered for inspection and 50 examination at any time upon demand by the commissioner or his or her 51 duly authorized agent or employee and shall be preserved for a period of 52 three years, except that the commissioner may consent to their 53 destruction within that period or may require that they be kept longer. 54 § 11-2405 Returns. a. On or before the twenty-fifth day of June in 55 each tax year, every person subject to tax under this chapter shall file 56 a return with the commissioner on a form prescribed by the commissioner.S. 8474 1082 1 A retail licensee who obtains a license subsequent to the commencement 2 of a tax year shall file a return for such tax year on or before the 3 twenty-fifth day of the month following the month in which such license 4 was obtained. 5 b. The return shall state the amount of license fees paid to the 6 state under the alcoholic beverage control law and the date when a 7 license under such law was issued to the retail licensee and shall 8 contain any other information which the commissioner may deem necessary 9 for the proper administration of this chapter. The commissioner may 10 require amended returns to be filed within twenty days after notice and 11 to contain the information specified in the notice. 12 c. If a return required by this chapter is not filed or if a return 13 when filed is incorrect or insufficient on its face, the commissioner 14 shall take the necessary steps to enforce the filing of such a return or 15 of a corrected return. 16 d. The return otherwise required to be filed on or before June twen- 17 ty-fifth, nineteen hundred eighty under the provisions of subdivision a 18 of this section, shall be made and filed on or before August twenty- 19 fifth, nineteen hundred eighty. 20 § 11-2406 Payment of tax. At the time of filing a return each person 21 shall pay to the commissioner the tax imposed under this chapter. Such 22 tax shall be due and payable on the last day on which such return is 23 required to be filed, regardless of whether a return is filed or whether 24 the return which is filed correctly indicates the amount of tax due. 25 § 11-2407 Determination of tax. If a return required by this chapter 26 is not filed, or if a return when filed is incorrect or insufficient, 27 the commissioner shall determine the amount of tax due from such infor- 28 mation as may be obtainable and, if necessary, may estimate the tax on 29 the basis of external indices. Notice of such determination shall be 30 given to the person liable for the payment of the tax. Such determi- 31 nation shall finally and irrevocably fix the tax unless the person 32 against whom it is assessed, within ninety days after the giving of 33 notice of such determination, or, if the commissioner of finance has 34 established a conciliation procedure pursuant to section 11-124 of the 35 code of the preceding municipality and the taxpayer has requested a 36 conciliation conference in accordance therewith, within ninety days from 37 the mailing of a conciliation decision or the date of the commissioner's 38 confirmation of the discontinuance of the conciliation proceeding, both 39 (1) serves a petition upon the commissioner of finance and (2) files a 40 petition with the tax appeals tribunal for a hearing, or unless the 41 commissioner of his or her own motion shall redetermine the same. Such 42 hearing and any appeal to the tax appeals tribunal sitting en banc from 43 the decision rendered in such hearing shall be conducted in the manner 44 and subject to the requirements prescribed by the tax appeals tribunal 45 pursuant to sections one hundred sixty-eight through one hundred seven- 46 ty-two of the charter of the preceding municipality as it existed Janu- 47 ary first, nineteen hundred ninety-four. After such hearing the tax 48 appeals tribunal shall give notice of its decision to the person against 49 whom the tax is assessed and to the commissioner of finance. A decision 50 of the tax appeals tribunal sitting en banc shall be reviewable for 51 error, illegality or unconstitutionality or any other reason whatsoever 52 by a proceeding under article seventy-eight of the civil practice law 53 and rules if application therefor is made to the supreme court by the 54 person against whom the tax was assessed within four months after the 55 giving of the notice of such tax appeals tribunal decision. A proceed- 56 ing under article seventy-eight of the civil practice law and rulesS. 8474 1083 1 shall not be instituted by a taxpayer unless: (a) the amount of any tax 2 sought to be reviewed, with penalties and interest thereon, if any, 3 shall be first deposited with the commissioner and there shall be filed 4 with the commissioner an undertaking issued by a surety company author- 5 ized to transact business in this state and approved by the superinten- 6 dent of insurance of this state as to solvency and responsibility, in 7 such amount as a justice of the supreme court shall approve, to the 8 effect that if such proceeding be dismissed or the tax confirmed, the 9 taxpayer will pay all costs and charges which may accrue in the prose- 10 cution of the proceedings or (b) at the option of the taxpayer, such 11 undertaking may be in a sum sufficient to cover the taxes, interest and 12 penalties stated in such decision, plus the costs and charges which may 13 accrue against it in the prosecution of the proceeding, in which event 14 the taxpayer shall not be required to pay such taxes, interest or penal- 15 ties as a condition precedent to the application. 16 § 11-2408 Refunds. a. In the manner provided in this section, the 17 commissioner shall refund or credit, without interest, any tax, penalty 18 or interest erroneously, illegally or unconstitutionally collected or 19 paid, if written application to the commissioner for such refund shall 20 be made within one year from the payment thereof. Whenever a refund or 21 credit is made or denied, the commissioner shall state his or her reason 22 therefor and give notice thereof to the taxpayer in writing. The commis- 23 sioner may, in lieu of any refund required to be made, allow credit 24 therefor on payments due from the applicant. 25 b. Any determination of the commissioner of finance denying a refund 26 or credit pursuant to subdivision a of this section shall be final and 27 irrevocable unless the applicant for such refund or credit, within nine- 28 ty days from the mailing of notice of such determination, or, if the 29 commissioner of finance has established a conciliation procedure pursu- 30 ant to section 11-124 of the code of the preceding municipality and the 31 applicant has requested a conciliation conference in accordance there- 32 with, within ninety days from the mailing of a conciliation decision or 33 the date of the commissioner's confirmation of the discontinuance of the 34 conciliation proceeding, both (1) serves a petition upon the commission- 35 er of finance and (2) files a petition with the tax appeals tribunal for 36 a hearing. Such petition for a refund or credit made as provided in this 37 section shall be deemed an application for a revision of any tax, penal- 38 ty or interest complained of. Such hearing and any appeal to the tribu- 39 nal sitting en banc from the decision rendered in such hearing shall be 40 conducted in the manner and subject to the requirements prescribed by 41 the tax appeals tribunal pursuant to sections one hundred sixty-eight 42 through one hundred seventy-two of the charter of the preceding munici- 43 pality as it existed January first, nineteen hundred ninety-four. After 44 such hearing, the tax appeals tribunal shall give notice of its decision 45 to the applicant and to the commissioner of finance. The applicant shall 46 be entitled to institute a proceeding pursuant to article seventy-eight 47 of the civil practice law and rules to review a decision of the tax 48 appeals tribunal sitting en banc if application to the supreme court be 49 made therefor within four months after the giving of notice of such 50 decision, and provided, in the case of an application by a taxpayer, 51 that a final determination of tax due was not previously made. Such a 52 proceeding shall not be instituted by a taxpayer unless an undertaking 53 shall first be filed with the commissioner, in such amount and with such 54 sureties as a justice of the supreme court shall approve, to the effect 55 that if such proceeding be dismissed or the tax confirmed, the taxpayerS. 8474 1084 1 will pay all costs and charges which may accrue in the prosecution of 2 the proceeding. 3 c. A person shall not be entitled to a revision, refund or credit 4 under this section, of a tax, interest or penalty which had been deter- 5 mined to be due pursuant to the provisions of section 11-2407 of this 6 chapter where such person has had a hearing or an opportunity for a 7 hearing, as provided in such section or has failed to avail himself or 8 herself of the remedies as provided in such section. No refund or cred- 9 it shall be made of a tax, interest or penalty paid after a determi- 10 nation by the commissioner made pursuant to section 11-2407 of this 11 chapter unless it be found that such determination was erroneous, ille- 12 gal or unconstitutional or otherwise improper, by the tax appeals tribu- 13 nal after a hearing or of the commissioner's own motion, or, if such tax 14 appeals tribunal affirms in whole or in part the determination of the 15 commissioner of finance, in a proceeding under article seventy-eight of 16 the civil practice law and rules, pursuant to the provisions of said 17 section in which event refund or credit without interest shall be made 18 of the tax, interest or penalty found to have been overpaid. 19 § 11-2409 Remedies exclusive. The remedies provided by this chapter 20 shall be the exclusive remedies available to any person for the review 21 of tax liability imposed by this chapter; and no determination or 22 proposed determination of tax or determination on any application for 23 refund by the commissioner of finance, nor any decision by the tax 24 appeals tribunal or any of its administrative law judges, shall be 25 enjoined or reviewed by an action for declaratory judgment, an action 26 for money had and received or by any action or proceeding other than, in 27 the case of a decision by the tax appeals tribunal sitting en banc, a 28 proceeding under article seventy-eight of the civil practice law and 29 rules; provided, however, that a taxpayer may proceed by declaratory 30 judgment if such taxpayer institutes suit within thirty days after a 31 deficiency assessment is made and pays the amount of the deficiency 32 assessment to the commissioner prior to the institution of such suit and 33 posts a bond for costs as provided in section 11-2407 of this chapter. 34 § 11-2410 Reserves. In cases where the taxpayer has applied for a 35 refund and has instituted a proceeding under article seventy-eight of 36 the civil practice law and rules to review a determination adverse to 37 such taxpayer on his or her application for refund, the city comptroller 38 shall set up appropriate reserves to meet any decision adverse to the 39 city. 40 § 11-2411 Proceedings to recover tax. a. Whenever any person shall 41 fail to pay any tax or penalty or interest imposed by this chapter, the 42 corporation counsel shall, upon the request of the commissioner, bring 43 or cause to be brought an action to enforce payment of the same against 44 the person liable for the same on behalf of the city of Staten Island in 45 any court of the state of New York or of any other state or of the 46 United States. If, however, the commissioner in his or her discretion 47 believes that a taxpayer subject to the provisions of this chapter is 48 about to cease business, leave the state or remove or dissipate the 49 assets out of which tax or penalties or interest might be satisfied and 50 that any such tax or penalty or interest will not be paid when due, he 51 or she may declare such tax or penalty or interest to be immediately due 52 and payable and may issue a warrant immediately. 53 b. As an additional or alternate remedy, the commission may issue a 54 warrant, directed to the city sheriff, commanding such sheriff to levy 55 upon and sell the real and personal property of such person which may be 56 found within the city, for the payment of the amount thereof, with anyS. 8474 1085 1 penalties and interest, and the cost of executing the warrant, and to 2 return such warrant to the commissioner and to pay to him or her the 3 money collected by virtue thereof within sixty days after receipt of 4 such warrant. The city sheriff shall, within five days after the 5 receipt of the warrant, file with the county clerk a copy thereof, and 6 thereupon such clerk shall enter in the judgment docket the name of the 7 person mentioned in the warrant and the amount of the tax, penalties and 8 interest for which the warrant is issued and the date when such copy is 9 filed. Thereupon the amount of such warrant so docketed shall become a 10 lien upon the title to and interest in real and personal property of the 11 person against whom the warrant is issued. The city sheriff shall then 12 proceed upon the warrant in the same manner and with like effect as that 13 provided by law in respect to executions issued against property upon 14 judgments of a court of record, and for services in executing the 15 warrant such sheriff shall be entitled to the same fees which he or she 16 may collect in the same manner. In the discretion of the commissioner a 17 warrant of like terms, force and effect may be issued and directed to 18 any officer or employee of the department of finance, and in the 19 execution thereof such officer or employee shall have all the powers 20 conferred by law upon sheriffs, but he or she shall be entitled to no 21 fee for compensation in excess of the actual expenses paid in the 22 performance of such duty. If a warrant is returned not satisfied in 23 full, the commissioner may from time to time issue new warrants and 24 shall also have the same remedies to enforce the amount due thereunder 25 as if the city had recovered judgment therefor and execution thereon had 26 been returned unsatisfied. 27 c. Whenever there is made a sale, transfer or assignment in bulk of 28 any part or the whole of a stock of merchandise or of fixtures, or 29 merchandise and of fixtures pertaining to the conducting of the business 30 of the seller, transferor or assignor, otherwise than in the ordinary 31 course of trade and in the regular prosecution of said business, the 32 purchaser, transferee or assignee shall at least ten days before taking 33 possession of such merchandise, fixtures, or merchandise and fixtures, 34 or paying therefor, notify the commissioner by registered mail of the 35 proposed sale and of the price, terms and conditions thereof whether or 36 not the seller, transferor or assignor, has represented to, or informed 37 the purchaser, transferee or assignee that it owes any tax pursuant to 38 this chapter and whether or not the purchaser, transferee or assignee 39 has knowledge that such taxes are owing, and whether any such taxes are 40 in fact owing. 41 Whenever the purchaser, transferee or assignee shall fail to give 42 notice to the commissioner as required by the opening paragraph of this 43 subdivision, or whenever the commissioner shall inform the purchaser, 44 transferee or assignee that a possible claim for such tax or taxes 45 exists, any sums of money, property or choses in action, or other 46 consideration, which the purchaser, transferee or assignee is required 47 to transfer over to the seller, transferor or assignor shall be subject 48 to a first priority right and lien for any such taxes theretofore or 49 thereafter determined to be due from the seller, transferor or assignor 50 to the city, and the purchaser, transferee or assignee is forbidden to 51 transfer to the seller, transferor or assignor any such sums of money, 52 property or choses in action to the extent of the amount of the city's 53 claim. For failure to comply with the provisions of this subdivision, 54 the purchaser, transferee or assignee, in addition to being subject to 55 the liabilities and remedies imposed under the provisions of article six 56 of the uniform commercial code, shall be personally liable for theS. 8474 1086 1 payment to the city of any such taxes theretofore or thereafter deter- 2 mined to be due to the city from the seller, transferor or assignor, and 3 such liability may be assessed and enforced in the same manner as the 4 liability for tax under this chapter. 5 d. The commissioner of finance, if he or she finds that the interests 6 of the city will not thereby be jeopardized, and upon such conditions as 7 the commissioner of finance may require, may release any property from 8 the lien of any warrant or vacate such warrant for unpaid taxes, addi- 9 tions to tax, penalties and interest filed pursuant to subdivision b of 10 this section, and such release or vacating of the warrant may be 11 recorded in the office of any recording officer in which such warrant 12 has been filed. The clerk shall thereupon cancel and discharge as of the 13 original date of docketing the vacated warrant. 14 § 11-2412 General powers of the commissioner. In addition to all 15 other powers granted to the commissioner in this chapter, he or she is 16 hereby authorized and empowered: 17 1. To make, adopt and amend rules and regulations appropriate to the 18 carrying out of this chapter and the purposes thereof; and to prescribe 19 the form of blanks, reports and other records relating to the enforce- 20 ment and administration of this chapter; 21 2. To extend, for cause shown, the time for filing any return for a 22 period not exceeding thirty days; and to compromise disputed claims in 23 connection with the taxes hereby imposed; 24 3. To request information from the department of taxation and finance 25 of the state of New York or the state liquor authority or the officials 26 of any political subdivision of this state or the treasury department of 27 the United States relative to any person; and to afford information to 28 such department of taxation and finance, liquor authority, officials or 29 treasury department relative to any person, any other provision of this 30 chapter to the contrary notwithstanding; 31 4. To delegate his or her functions under this section to a deputy or 32 assistant or other employee or employees of his or her department; 33 5. To assess, reassess, determine, revise and readjust the taxes 34 imposed under this chapter; 35 6. To provide by regulation for granting a refund of an appropriate 36 portion of the tax where the retail licensee ceases to do business 37 during the course of the tax year under circumstances which result in, 38 or would entitle such licensee to, a refund of license fee by the state 39 liquor authority. The provisions of section 11-2408 of this chapter 40 shall be applicable to such refunds. 41 § 11-2413 Administration of oaths and compelling testimony. a. The 42 commissioner, his or her employees duly designated and authorized by the 43 commissioner, the tax appeals tribunal and any of its duly designated 44 and authorized employees shall have power to administer oaths and take 45 affidavits in relation to any matter or proceeding in the exercise of 46 their powers and duties under this chapter. The commissioner and the tax 47 appeals tribunal shall have power to subpoena and require the attendance 48 of witnesses and the production of books, papers and documents to secure 49 information pertinent to the performance of the duties of the commis- 50 sioner or the tax appeals tribunal under this chapter and of the 51 enforcement of this chapter and to examine them in relation thereto, and 52 to issue commissions for the examination of witnesses who are out of the 53 state or unable to attend before the commissioner or the tax appeals 54 tribunal or excused from attendance. 55 b. A justice of the supreme court either in court or at chambers shall 56 have power summarily to enforce by proper proceedings the attendance andS. 8474 1087 1 testimony of witnesses and the production and examination of books, 2 papers and documents called for by the subpoena of the commissioner or 3 the tax appeals tribunal under this chapter. 4 c. Cross-reference; criminal penalties. For failure to obey subpoenas 5 or for testifying falsely, see section 11-4007 of this title; for 6 supplying false or fraudulent information, see section 11-4009 of this 7 title. 8 d. The officers who serve the summons or subpoena of the commissioner 9 of finance or the tax appeals tribunal under this chapter and witnesses 10 attending in response thereto shall be entitled to the same fees as are 11 allowed to officers and witnesses in civil cases in courts of record, 12 except as otherwise provided in this chapter. Such officers shall be 13 the city sheriff, and his or her duly appointed deputies or any officers 14 or employees of the department of finance or the tax appeals tribunal, 15 designated to serve such process. 16 § 11-2414 Interest and penalties. (a) Interest on underpayments. If 17 any amount of tax is not paid on or before the last date prescribed for 18 payment, without regard to any extension of time granted for payment, 19 interest on such amount at the rate set by the commissioner of finance 20 pursuant to subdivision (g) of this section, or, if no rate is set, at 21 the rate of seven and one-half percent per annum, shall be paid for the 22 period from such last date to the date of payment. In computing the 23 amount of interest to be paid, such interest shall be compounded daily. 24 Interest under this subdivision shall not be paid if the amount thereof 25 is less than one dollar. 26 (b) (1) Failure to file return. (A) In case of failure to file a 27 return under this chapter on or before the prescribed date, determined 28 with regard to any extension of time for filing, unless it is shown that 29 such failure is due to reasonable cause and not due to willful neglect, 30 there shall be added to the amount required to be shown as tax on such 31 return five percent of the amount of such tax if the failure is for not 32 more than one month, with an additional five percent for each additional 33 month or fraction thereof during which such failure continues, not 34 exceeding twenty-five percent in the aggregate. 35 (B) In the case of a failure to file a return of tax within sixty days 36 of the date prescribed for filing of such return, determined with regard 37 to any extension of time for filing, unless it is shown that such fail- 38 ure is due to reasonable cause and not due to willful neglect, the addi- 39 tion to tax under subparagraph (A) of this paragraph shall not be less 40 than the lesser of one hundred dollars or one hundred percent of the 41 amount required to be shown as tax on such return. 42 (C) For purposes of this paragraph, the amount of tax required to be 43 shown on the return shall be reduced by the amount of any part of the 44 tax which is paid on or before the date prescribed for payment of the 45 tax and by the amount of any credit against the tax which may be claimed 46 upon the return. 47 (2) Failure to pay tax shown on return. In case of failure to pay the 48 amount shown as tax on a return required to be filed under this chapter 49 on or before the prescribed date, determined with regard to any exten- 50 sion of time for payment, unless it is shown that such failure is due to 51 reasonable cause and not due to willful neglect, there shall be added to 52 the amount shown as tax on such return one-half of one percent of the 53 amount of such tax if the failure is not for more than one month, with 54 an additional one-half of one percent for each additional month or frac- 55 tion thereof during which such failure continues, not exceeding twenty- 56 five percent in the aggregate. For the purpose of computing the additionS. 8474 1088 1 for any month the amount of tax shown on the return shall be reduced by 2 the amount of any part of the tax which is paid on or before the begin- 3 ning of such month and by the amount of any credit against the tax which 4 may be claimed upon the return. If the amount of tax required to be 5 shown on a return is less than the amount shown as tax on such return, 6 this paragraph shall be applied by substituting such lower amount. 7 (3) Failure to pay tax required to be shown on return. In case of 8 failure to pay any amount in respect of any tax required to be shown on 9 a return required to be filed under this chapter which is not so shown, 10 including a determination made pursuant to section 11-2407 of this chap- 11 ter, within ten days of the date of a notice and demand therefor, unless 12 it is shown that such failure is due to reasonable cause and not due to 13 willful neglect, there shall be added to the amount of tax stated in 14 such notice and demand one-half of one percent of such tax if the fail- 15 ure is not for more than one month, with an additional one-half of one 16 percent for each additional month or fraction thereof during which such 17 failure continues, not exceeding twenty-five percent in the aggregate. 18 For the purpose of computing the addition for any month, the amount of 19 tax stated in the notice and demand shall be reduced by the amount of 20 any part of the tax which is paid before the beginning of such month. 21 (4) Limitations on additions. 22 (A) With respect to any return the amount of the addition under para- 23 graph one of this subdivision shall be reduced by the amount of the 24 addition under paragraph two of this subdivision for any month to which 25 an addition applies under both paragraphs one and two. In any case 26 described in subparagraph (B) of paragraph one of this subdivision, the 27 amount of the addition under such paragraph one shall not be reduced 28 below the amount provided in such subparagraph. 29 (B) With respect to any return, the maximum amount of the addition 30 permitted under paragraph three of this subdivision shall be reduced by 31 the amount of the addition under paragraph one of this subdivision, 32 determined without regard to subparagraph (B) of such paragraph one, 33 which is attributable to the tax for which the notice and demand is made 34 and which is not paid within ten days of such notice and demand. 35 (c) Underpayment due to negligence. (1) If any part of an underpay- 36 ment of tax is due to negligence or intentional disregard of this chap- 37 ter or any rules or regulations relating thereto, but without intent to 38 defraud, there shall be added to the tax a penalty equal to five percent 39 of the underpayment. 40 (2) There shall be added to the tax, in addition to the amount deter- 41 mined under paragraph one of this subdivision, an amount equal to fifty 42 percent of the interest payable under subdivision (a) of this section 43 with respect to the portion of the underpayment described in such para- 44 graph one which is attributable to the negligence or intentional disre- 45 gard referred to in such paragraph one, for the period beginning on the 46 last date prescribed by law for payment of such underpayment, determined 47 without regard to any extension, and ending on the date of the assess- 48 ment of the tax, or, if earlier, the date of the payment of the tax. 49 (d) Underpayment due to fraud. (1) If any part of an underpayment of 50 tax is due to fraud, there shall be added to the tax a penalty equal to 51 fifty percent of the underpayment. 52 (2) There shall be added to the tax, in addition to the penalty deter- 53 mined under paragraph one of this subdivision, an amount equal to fifty 54 percent of the interest payable under subdivision (a) of this section 55 with respect to the portion of the underpayment described in such para- 56 graph one which is attributable to fraud, for the period beginning onS. 8474 1089 1 the last day prescribed by law for payment of such underpayment, deter- 2 mined without regard to any extension, and ending on the date of the 3 assessment of the tax, or, if earlier, the date of the payment of the 4 tax. 5 (3) The penalty under this subdivision shall be in lieu of any other 6 addition to tax imposed by subdivision (b) or (c) of this section. 7 (e) Additional penalty. Any person who, with fraudulent intent, shall 8 fail to pay any tax imposed by this chapter, or to make, render, sign or 9 certify any return, or to supply any information within the time 10 required by or under this chapter, shall be liable for a penalty of not 11 more than one thousand dollars, in addition to any other amounts 12 required under this chapter to be imposed, assessed and collected by the 13 commissioner of finance. The commissioner of finance shall have the 14 power, in his or her discretion, to waive, reduce or compromise any 15 penalty under this subdivision. 16 (f) The interest and penalties imposed by this section shall be paid 17 and disposed of in the same manner as other revenues from this chapter. 18 Unpaid interest and penalties may be enforced in the same manner as the 19 tax imposed by this chapter. 20 (g)(1) Authority to set interest rates. The commissioner of finance 21 shall set the rate of interest to be paid pursuant to subdivision (a) of 22 this section, but if no such rate of interest is set, such rate shall be 23 deemed to be set at seven and one-half percent per annum. Such rate 24 shall be the rate prescribed in paragraph two of this subdivision but 25 shall not be less than seven and one-half percent per annum. Any such 26 rate set by the commissioner of finance shall apply to taxes, or any 27 portion thereof, which remain or become due on or after the date on 28 which such rate becomes effective and shall apply only with respect to 29 interest computed or computable for periods or portions of periods 30 occurring in the period in which such rate is in effect. 31 (2) General rule. The rate of interest set under this subdivision 32 shall be the sum of (i) the federal short-term rate as provided under 33 paragraph three of this subdivision, plus (ii) seven percentage points. 34 (3) Federal short-term rate. For purposes of this subdivision: 35 (A) The federal short-term rate for any month shall be the federal 36 short-term rate determined by the United States secretary of the treas- 37 ury during such month in accordance with subsection (d) of section 38 twelve hundred seventy-four of the internal revenue code for use in 39 connection with section six thousand six hundred twenty-one of the 40 internal revenue code. Any such rate shall be rounded to the nearest 41 full percent, or, if a multiple of one-half of one percent, such rate 42 shall be increased to the next highest full percent. 43 (B) Period during which rate applies. 44 (i) In general. Except as provided in clause (ii) of this subpara- 45 graph, the federal short-term rate for the first month in each calendar 46 quarter shall apply during the first calendar quarter beginning after 47 such month. 48 (ii) Special rule for the month of September, nineteen hundred eight- 49 y-nine. The federal short-term rate for the month of April, nineteen 50 hundred eighty-nine shall apply with respect to setting the rate of 51 interest for the month of September, nineteen hundred eighty-nine. 52 (4) Publication of interest rate. The commissioner of finance shall 53 cause to be published in the City Record, and give other appropriate 54 general notice of, the interest rate to be set under this subdivision no 55 later than twenty days preceding the first day of the calendar quarter 56 during which such interest rate applies. The setting and publication ofS. 8474 1090 1 such interest rate shall not be included within paragraph (a) of subdi- 2 vision five of section one thousand forty-one of the city charter of the 3 preceding municipality as it existed January first, nineteen hundred 4 ninety-four relating to the definition of a rule. 5 (h) Miscellaneous. (1) The certificate of the commissioner of finance 6 to the effect that a tax has not been paid, that a return has not been 7 filed, that information has not been supplied pursuant to the provisions 8 of this chapter or that records have not been retained pursuant to the 9 provisions of this chapter shall be prima facie evidence thereof. 10 (2) Cross-reference: For criminal penalties, see chapter forty of this 11 title. 12 § 11-2415 Returns to be secret. (a) Except in accordance with proper 13 judicial order, or as otherwise provided by law, it shall be unlawful 14 for the commissioner, the tax appeals tribunal or any officer or employ- 15 ee of the city to divulge or make known in any manner any information 16 relating to the business of a taxpayer contained in any return required 17 under this chapter. The officers charged with the custody of such 18 returns shall not be required to produce any of them or evidence of 19 anything contained in them in any action or proceeding in any court, 20 except on behalf of the commissioner in an action or proceeding under 21 the provisions of this chapter, or on behalf of any party to any action 22 or proceeding under the provisions of this chapter when the returns or 23 facts shown thereby are directly involved in such action or proceeding, 24 in either of which events the court may require the production of, and 25 may admit in evidence, so much of said returns or of the facts shown 26 thereby, as are pertinent to the action or proceeding and no more. 27 Nothing under this section shall be construed to prohibit the delivery 28 to a taxpayer or the taxpayer's duly authorized representative of a 29 certified copy of any return filed in connection with his or her tax nor 30 to prohibit the publication of statistics so classified as to prevent 31 the identification of particular returns and the items thereof, or the 32 inspection by the corporation counsel or other legal representatives of 33 the city, or by the district attorney of Richmond county, of the return 34 of any taxpayer who shall bring action to set aside or review the tax 35 based thereon, or against whom an action or proceeding under this chap- 36 ter may be instituted. Returns shall be preserved for three years and 37 thereafter until the commissioner permits them to be destroyed. 38 (b) (1) Any officer or employee of the city who willfully violates the 39 provisions of subdivision (a) of this section shall be dismissed from 40 office and be incapable of holding any public office in this city for a 41 period of five years thereafter. 42 (2) Cross-reference: For criminal penalties, see chapter forty of this 43 title. 44 (c) This section shall be deemed a state statute for purposes of 45 paragraph (a) of subdivision two of section eighty-seven of the public 46 officers law. 47 (d) Notwithstanding anything in subdivision (a) of this section to the 48 contrary, if a taxpayer has petitioned the tax appeals tribunal for 49 administrative review as provided in section one hundred seventy of the 50 charter of the preceding municipality as it existed January first, nine- 51 teen hundred ninety-four, the commissioner of finance shall be author- 52 ized to present to the tribunal any report or return of such taxpayer, 53 or any information contained therein or relating thereto, which may be 54 material or relevant to the proceeding before the tribunal. The tax 55 appeals tribunal shall be authorized to publish a copy or a summary of 56 any decision rendered pursuant to section one hundred seventy-one of theS. 8474 1091 1 charter of the preceding municipality as it existed January first, nine- 2 teen hundred ninety-four. 3 § 11-2416 Notices and limitations of time. a. Any notice authorized 4 or required under the provisions of this chapter may be given by mailing 5 the same to the person for whom it is intended in a postpaid envelope 6 addressed to such person at the address given in the last return filed 7 by him or her pursuant to the provisions of this chapter or in any 8 application made by him or her, or, if no return has been filed or 9 application made, then to such address as may be obtainable. The mailing 10 of such notice shall be presumptive evidence of the receipt of the same 11 by the person to whom addressed. Any period of time which is determined 12 according to the provisions of this chapter by the giving of notice 13 shall commence to run from the date of mailing of such notice. 14 b. The provisions of the civil practice law and rules or any other law 15 relative to limitations of time for the enforcement of a civil remedy 16 shall not apply to any proceeding or action taken by the city to levy, 17 appraise, assess, determine or enforce the collection of any tax or 18 penalty or interest provided by this chapter. However, except in the 19 case of a wilfully false or fraudulent return with intent to evade the 20 tax, no assessment of additional tax shall be made after the expiration 21 of more than three years from the date of the filing of a return, 22 provided, however, that where no return has been filed as provided by 23 law the tax may be assessed at any time. 24 c. Where, before the expiration of the period prescribed in this 25 section for the assessment of an additional tax, a taxpayer has 26 consented in writing that such period be extended, the amount of such 27 additional tax due may be determined at any time within such extended 28 period. The period so extended may be further extended by subsequent 29 consents in writing made before the expiration of the extended period. 30 d. If any return, claim, statement, notice, application, or other 31 document required to be filed, or any payment required to be made, with- 32 in a prescribed period or on or before a prescribed date under authority 33 of any provision of this chapter is, after such period or such date, 34 delivered by United States mail to the commissioner of finance, the tax 35 appeals tribunal, bureau, office, officer or person with which or with 36 whom such document is required to be filed, or to which or to whom such 37 payment is required to be made, the date of the United States postmark 38 stamped on the envelope shall be deemed to be the date of delivery. This 39 subdivision shall apply only if the postmark date falls within the 40 prescribed period or on or before the prescribed date for the filing of 41 such document, or for making the payment, including any extension grant- 42 ed for such filing or payment, and only if such document or payment was 43 deposited in the mail, postage prepaid, properly addressed to the 44 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 45 cer or person with which or with whom the document is required to be 46 filed or to which or to whom such payment is required to be made. If any 47 document is sent by United States registered mail, such registration 48 shall be prima facie evidence that such document was delivered to the 49 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 50 cer or person to which or to whom addressed, and the date of registra- 51 tion shall be deemed the postmark date. The commissioner of finance and, 52 where relevant, the tax appeals tribunal are authorized to provide by 53 regulation the extent to which, such provisions with respect to prima 54 facie evidence of delivery and the postmark date, shall apply to certi- 55 fied mail. Except as provided in subdivision f of this section, this 56 subdivision shall apply in the case of postmarks not made by the UnitedS. 8474 1092 1 States postal service only if and to the extent provided by regulation 2 of the commissioner of finance or, where relevant, the tax appeals 3 tribunal. 4 e. When the last day prescribed under authority of this chapter, 5 including any extension of time, for performing any act falls on a 6 Saturday, Sunday or legal holiday in the state, the performance of such 7 act shall be considered timely if it is performed on the next succeeding 8 day which is not a Saturday, Sunday or legal holiday. 9 f. (1) Any reference in subdivision d of this section to the United 10 States mail shall be treated as including a reference to any delivery 11 service designated by the secretary of the treasury of the United States 12 pursuant to section seventy-five hundred two of the internal revenue 13 code and any reference in subdivision d of this section to a United 14 States postmark shall be treated as including a reference to any date 15 recorded or marked in the manner described in section seventy-five 16 hundred two of the internal revenue code by a designated delivery 17 service. If the commissioner of finance finds that any delivery service 18 designated by such secretary is inadequate for the needs of the city, 19 the commissioner of finance may withdraw such designation for purposes 20 of this title. The commissioner of finance may also designate additional 21 delivery services meeting the criteria of section seventy-five hundred 22 two of the internal revenue code for purposes of this title, or may 23 withdraw any such designation if the commissioner of finance finds that 24 a delivery service so designated is inadequate for the needs of the 25 city. Any reference in subdivision d of this section to the United 26 States mail shall be treated as including a reference to any delivery 27 service designated by the commissioner of finance and any reference in 28 subdivision d of this section to a United States postmark shall be 29 treated as including a reference to any date recorded or marked in the 30 manner described in section seventy-five hundred two of the internal 31 revenue code by a delivery service designated by the commissioner of 32 finance, provided, however, any withdrawal of designation or additional 33 designation by the commissioner of finance shall not be effective for 34 purposes of service upon the tax appeals tribunal, unless and until such 35 withdrawal of designation or additional designation is ratified by the 36 president of the tax appeals tribunal. 37 (2) Any equivalent of registered or certified mail designated by the 38 United States secretary of the treasury, or as may be designated by the 39 commissioner of finance pursuant to the same criteria used by such 40 secretary for such designations pursuant to section seventy-five hundred 41 two of the internal revenue code, shall be included within the meaning 42 of registered or certified mail as used in subdivision d of this 43 section. If the commissioner of finance finds that any equivalent of 44 registered or certified mail designated by such secretary or the commis- 45 sioner of finance is inadequate for the needs of the city, the commis- 46 sioner of finance may withdraw such designation for purposes of this 47 title, provided, however, any withdrawal of designation or additional 48 designation by the commissioner of finance shall not be effective for 49 purposes of service upon the tax appeals tribunal, unless and until such 50 withdrawal of designation or additional designation is ratified by the 51 president of the tax appeals tribunal. 52 § 11-2417 Construction and enforcement. This chapter shall be 53 construed and enforced in conformity with article twenty-nine of the tax 54 law, pursuant to which it is enacted.S. 8474 1093 1 CHAPTER 25 2 TAX ON OCCUPANCY OF HOTEL ROOMS 3 § 11-2501 Definitions. When used in this chapter the following terms 4 shall mean or include: 5 1. "Person." An individual, partnership, society, association, joint- 6 stock company, corporation, estate, receiver, trustee, assignee, refer- 7 ee, or any other person acting in a fiduciary or representative capaci- 8 ty, whether appointed by a court or otherwise and any combination 9 thereof. 10 2. "Operator." Any person operating a hotel in the city of Staten 11 Island, including, but not limited to, the owner or proprietor of such 12 premises, lessee, sublessee, mortgagee in possession, licensee or any 13 other person otherwise operating such hotel. 14 3. "Occupant." A person who, for a consideration, uses, possesses, or 15 has the right to use or possess, any room or rooms in a hotel under any 16 lease, concession, permit, right of access, license to use or other 17 agreement, or otherwise. "Right to use or possess" includes the rights 18 of a room remarketer as described in subdivision twelve of this section. 19 4. "Occupancy." The use or possession, or the right to the use or 20 possession of any room or rooms in a hotel, or the right to the use or 21 possession of the furnishings or to the services and accommodations 22 accompanying the use and possession of the room or rooms. "Right to use 23 or possess" includes the rights of a room remarketer as described in 24 subdivision twelve of this section. 25 5. "Hotel." A building or portion of it which is regularly used and 26 kept open as such for the lodging of guests. The term "hotel" includes 27 an apartment hotel, a motel, boarding house or club, whether or not 28 meals are served. 29 6. "Room." Any room of any kind, other than a bathroom or lavatory, in 30 any part or portion of a hotel which is available for, or let out for, 31 use or possession for any purpose other than a place of assembly as 32 defined in section 27-232 of the code of the preceding municipality. 33 7. "Rent." The consideration received for occupancy valued in money, 34 whether received in money or otherwise, including all receipts, cash, 35 credits, and property or services of any kind or nature, including any 36 service or other charge or amount required to be paid as a condition for 37 occupancy, and also any amount for which credit is allowed by the opera- 38 tor or room remarketer to the occupant, without any deduction therefrom 39 whatsoever, whether received by the operator or a room remarketer or 40 another person on behalf of either of them. 41 8. "Permanent resident." Any occupant of any room or rooms in a hotel 42 for at least one hundred eighty consecutive days shall be considered a 43 permanent resident with regard to the period of such occupancy. 44 9. "Commissioner of finance." The commissioner of finance of the city. 45 10. "Comptroller." The comptroller of the city. 46 11. "Tax appeals tribunal." The tax appeals tribunal established by 47 section one hundred sixty-eight of the charter of the preceding munici- 48 pality as it existed January first, nineteen hundred ninety-four. 49 12. "Room remarketer." A person who reserves, arranges for, conveys, 50 or furnishes occupancy, whether directly or indirectly, to an occupant 51 for rent in an amount determined by such room remarketer, directly or 52 indirectly, whether pursuant to a written or other agreement. Such 53 person's ability or authority to reserve, arrange for, convey, or 54 furnish occupancy, directly or indirectly, and to determine rent there- 55 for, shall be the "rights of a room remarketer". A room remarketer isS. 8474 1094 1 not a permanent resident with respect to a room for which such person 2 has the rights of a room remarketer. 3 § 11-2502 Imposition of tax. a. (1) On and after July first, nineteen 4 hundred seventy until and including August thirty-first, nineteen 5 hundred eighty, there is hereby imposed and there shall be paid a tax 6 for every occupancy of each room in a hotel in the city of Staten Island 7 at the rates set forth in, and determined in accordance with the follow- 8 ing table: 9 If the rent per day for the room is: The tax is: 10 Less than $10 ............................................. $.25 per day 11 $10 or more, but less than $15 ............................ $.50 per day 12 $15 or more, but less than $20 ............................ $.75 per day 13 $20 or more .............................................. $1.00 per day 14 (2) On and after September first, nineteen hundred eighty, there is 15 hereby imposed and there shall be paid a tax for every occupancy of each 16 room in a hotel in the city of Staten Island at the rates set forth in, 17 and determined in accordance with, the following table: 18 If the rent per day for the room is: The tax is: 19 $10 or more, but less than $20 ............................ $.50 per day 20 $20 or more, but less than $30 ........................... $1.00 per day 21 $30 or more, but less than $40 ........................... $1.50 per day 22 $40 or more .............................................. $2.00 per day 23 Where a person occupies a room for less than a full day and pays less 24 than the rent for a full day, the tax shall nevertheless be the same 25 amount as would be due had such person occupied the room for a full day 26 at the rent for a full day. 27 (3) In addition to the tax imposed by paragraph two of this subdivi- 28 sion, there is hereby imposed and there shall be paid a tax for every 29 occupancy of each room in a hotel in the city (A) at the rate of five 30 percent of the rent or charge per day for each such room up to and 31 including August thirty-first, nineteen hundred ninety, (B) at the rate 32 of six percent of the rent or charge per day for each such room on and 33 after September first, nineteen hundred ninety and before December 34 first, nineteen hundred ninety-four, (C) at the rate of five percent of 35 the rent or charge per day for each such room on and after December 36 first, nineteen hundred ninety-four and before March first, two thousand 37 nine, (D) at the rate of five and seven-eighths percent of the rent or 38 charge per day for each such room on and after March first, two thousand 39 nine and before December first, two thousand thirteen, (E) at the rate 40 of five percent of the rent or charge per day for each such room on and 41 after December first, two thousand thirteen and before December twenti- 42 eth, two thousand thirteen, (F) at the rate of five and seven-eighths 43 percent of the rent or charge per day for each such room on and after 44 December twentieth, two thousand thirteen and before December first, two 45 thousand twenty-three, and (G) at the rate of five percent of the rent 46 or charge per day for each such room on and after December first, two 47 thousand twenty-three. 48 (4) (A) When occupancy is provided, for a single consideration, with 49 property, services, amusement charges, or any other items, the separate 50 sale of which is not subject to tax under this chapter, and the rent 51 paid for such occupancy does not qualify for the exemption in this 52 subdivision, the entire consideration shall be treated as rent subject 53 to tax under paragraph one of this subdivision; provided, however, that 54 where the amount of the rent for occupancy is stated separately from the 55 price of such property, services, amusement charges or other items on 56 any sales slip, invoice, receipt, or other statement given the occupantS. 8474 1095 1 and such rent is reasonable in relation to the value of such property, 2 services, amusement charges, or other items, only such separately stated 3 rent will be subject to tax under this subdivision. (B) In regard to 4 the collection of tax on occupancies by remarketers, when occupancy is 5 provided, for a single consideration, with property, services, amusement 6 charges, or any other items, whether or not such other items are taxa- 7 ble, the rent portion of the consideration for such sale shall be 8 computed as follows: the total consideration for the sale multiplied by 9 a fraction, the numerator of which shall be the consideration paid to 10 the hotel for the occupancy and the denominator of which shall be the 11 consideration paid to the hotel for the occupancy plus the consideration 12 paid to the providers of the other items being sold, or by any other 13 reasonable method pursuant to which the rent portion of consideration 14 would be no less than the computation of rent portion of consideration 15 under subparagraph (A) of this paragraph. Nothing in this subdivision 16 shall be construed to subject to tax or exempt from tax any service or 17 property or amusement charge or other items otherwise subject to tax or 18 exempt from tax under this chapter. 19 (5) A room remarketer shall be allowed a refund or credit against the 20 taxes collected and required to be remitted pursuant to section 11-2505 21 of this chapter in the amount of the tax it paid to the operator of the 22 hotel or another room remarketer under this subdivision. Provided, 23 however, that in order to qualify for a refund or credit under this 24 paragraph with respect to any quarterly period, as described in subdivi- 25 sion a of section 11-2504 of this chapter, the room remarketer must, 26 with respect to such quarter, (A) be registered for hotel room occupancy 27 tax purposes under section 11-2514 of this chapter, and (B) collect the 28 taxes imposed by paragraphs two and three of this subdivision. Subject 29 to the conditions and limitations of this paragraph, the provisions of 30 section 11-2507 of this chapter shall apply to refunds or credits under 31 this paragraph. 32 (6) Where the rent is paid or charged or billed, or falls due on 33 either a weekly, monthly or other term basis, the daily rent upon which 34 the tax is determined shall be the result obtained by dividing the rent 35 for such term by the number of days in such term. Where the rent is for 36 more than one room, including but not limited to a suite of rooms, the 37 daily rent per room upon which tax is determined shall be calculated by 38 multiplying the daily rent for the group of rooms by a fraction, the 39 numerator of which shall be the daily rent for the particular room, or a 40 similar room, when such room is rented alone with similar bath facili- 41 ties, and the denominator of which shall be the total of the daily rent 42 for the individual rooms in the group of rooms, or similar rooms, when 43 such rooms are rented alone with similar bath facilities. In any case in 44 which it is not possible to determine the daily rent per room in the 45 manner described under this paragraph, the commissioner of finance shall 46 prescribe methods for making such determination. 47 b. (1) No tax shall be imposed under this chapter upon a permanent 48 resident. 49 (2) For purposes of this subdivision, an occupant who is eligible to 50 request and has requested a lease pursuant to the provisions of para- 51 graph two of subdivision (a) of section 2522.5 of the rent stabilization 52 regulations promulgated by the division of housing and community renewal 53 of the state of New York, shall tentatively be accorded the status of 54 permanent resident as of the date of such request, notwithstanding that 55 such occupant has not met the one hundred eighty-consecutive-day 56 requirement contained in subdivision eight of section 11-2501 of thisS. 8474 1096 1 chapter as of such date. In the case of such an occupant, the operator 2 or room remarketer shall not collect the taxes imposed by this chapter 3 for any day, commencing with the date such lease is requested, which 4 falls within a period of continuous occupancy by such occupant of a room 5 or rooms in the hotel. Provided, however, if such occupant ceases to 6 occupy a room or rooms in the hotel prior to the completion of one 7 hundred eighty consecutive days of occupancy, any taxes not collected 8 theretofore by reason of the provisions of this paragraph shall become 9 immediately due and payable on the date of cessation of occupancy and 10 shall be collected by the operator or room remarketer from such occu- 11 pant. In the event, however, that the operator or room remarketer is 12 unable to collect such taxes from the occupant, the operator or room 13 remarketer shall not be liable to the city for such taxes. The 14 provisions of this paragraph shall apply with respect to leases 15 requested on or after September first, nineteen hundred ninety. 16 c. No tax shall be imposed under this chapter upon any organization 17 described in subdivision (a) of section eleven hundred sixteen of the 18 tax law to the extent such organization is not subject to the tax 19 imposed under subdivision (e) of section eleven hundred five of the tax 20 law. 21 d. (1) No tax shall be imposed under this chapter upon any person 22 occupying any room or rooms in a hotel solely and directly as a result 23 of such person's involuntary displacement from premises by the attack on 24 the World Trade Center on September eleventh, two thousand one, provided 25 such premises were not subject to the tax imposed by this section or the 26 tax imposed under section eleven hundred seven of the tax law. 27 (2) Where an occupant claims exemption from the tax under the 28 provisions of paragraph one of this subdivision, the rent shall be 29 deemed taxable under this chapter unless the operator shall receive from 30 the occupant claiming such exemption a signed written statement describ- 31 ing the specific circumstances providing the basis for such claim and 32 containing such other information as the commissioner of finance may 33 require. The operator shall retain such statement and provide it to the 34 commissioner of finance upon request. 35 e. Where any corporation, or association, or trust, or community 36 chest, fund or foundation, organized and operated exclusively for reli- 37 gious, charitable, or educational purposes, or for the prevention of 38 cruelty to children or animals, and no part of the net earnings of which 39 inures to the benefit of any private shareholder or individual and no 40 substantial part of the activities of which is carrying on propaganda, 41 or otherwise attempting to influence legislation, carries on its activ- 42 ities in furtherance of any of the purposes for which it was organized, 43 in premises in which, as part of said activities, it operates a hotel, 44 occupancy of rooms in said premises and rents therefrom received by such 45 corporation or association shall not be subject to tax under this chap- 46 ter. Nothing in this subdivision shall be deemed to include an organ- 47 ization operated for the primary purpose of carrying on a trade or busi- 48 ness for profit, whether or not all of its profits are payable to one or 49 more organizations described in this subdivision. 50 f. The tax to be collected shall be stated and charged separately from 51 the rent and shown separately on any record thereof, at the time when 52 the occupancy is arranged or contracted for and charged for and upon 53 every evidence of occupancy or any bill or statement or charge made for 54 said occupancy issued or delivered by the operator or room remarketer. 55 (1) Where an occupant rents a room directly from an operator, the tax 56 shall be paid by the occupant to the operator as trustee for and onS. 8474 1097 1 account of the city, and the operator shall be liable for the collection 2 of the tax on the rent and for the payment of the tax on the rent. 3 (2) The operator or room remarketer and any officer of any corporate 4 operator or room remarketer shall be personally liable for the portion 5 of the tax collected or required to be collected under this chapter, and 6 the operator shall have the same right in respect to collecting the tax 7 from the occupant, or in respect to nonpayment of the tax by the occu- 8 pant as if the tax were a part of the rent for the occupancy payable at 9 the time such tax shall become due and owing, including all rights of 10 eviction, dispossession, repossession and enforcement of any innkeeper's 11 lien that he or she may have in the event of nonpayment of rent by the 12 occupant; provided however, that the commissioner of finance shall be 13 joined as a party in any action or proceeding brought by the operator to 14 collect or enforce collection of the tax. 15 g. Where the occupant has failed to pay and the operator or room 16 remarketer has failed to collect a tax as imposed by this chapter, then 17 in addition to all other rights, obligations and remedies provided, such 18 tax shall be payable by the occupant directly to the commissioner of 19 finance, and it shall be the duty of the occupant to file a return ther- 20 eof with the commissioner of finance and to pay the tax imposed therein 21 to the commissioner of finance within fifteen days after such tax was 22 due. 23 h. The commissioner of finance may, wherever he or she deems it neces- 24 sary for the proper enforcement of this chapter, provide by regulation 25 that the occupant shall file returns and pay directly to the commission- 26 er of finance the tax imposed by this chapter, at such times as returns 27 are required to be filed and payment over made by the operator or room 28 remarketer. 29 i. The tax imposed by this chapter shall be paid upon any occupancy on 30 and after July first, nineteen hundred seventy, although such occupancy 31 is had pursuant to a contract, lease or other arrangement made prior to 32 such effective date. Where rent is paid, or charged or billed, or falls 33 due on either a weekly, monthly, or other term basis, the rent so paid, 34 charged, billed or falling due shall be subject to the tax imposed by 35 this chapter to the extent that it covers any portion of the period on 36 and after July first, nineteen hundred seventy, and such payment, bill, 37 charge or rent due shall be apportioned on the basis of the ratio of the 38 number of days falling within said period, to the total number of days 39 covered thereby. Where any tax has been paid pursuant to this chapter 40 upon any rent which has been ascertained to be worthless, the commis- 41 sioner of finance may by regulation provide for credit or refund of the 42 amount of such tax upon application therefor as provided in section 43 11-2507 of this chapter. 44 j. For the purpose of the proper administration of this chapter and to 45 prevent evasion of the tax hereby imposed, it shall be presumed that all 46 rents are subject to tax until the contrary is established, and the 47 burden of proving that a rent for occupancy is not taxable under this 48 chapter shall be upon the operator, the room remarketer, or the occu- 49 pant. Where an occupant claims exemption from the tax under the 50 provisions of subdivision c of this section, the rent shall be deemed 51 taxable under this chapter unless the operator or room remarketer shall 52 receive from the occupant claiming such exemption a copy of the exempt 53 organization certificate that is necessary to obtain exemption from the 54 tax imposed under subdivision (e) of section eleven hundred five of the 55 tax law, together with a certificate duly executed by the organization 56 named in such certificate certifying that the occupant is its agent,S. 8474 1098 1 representative or employee and that his or her occupancy is paid or to 2 be paid by, and is necessary or required in the course of or in 3 connection with the affairs of said organization. 4 k. No operator or room remarketer shall advertise or hold out to the 5 public in any manner, directly or indirectly, that the tax imposed by 6 this chapter is not considered as a mandatory addition to the rent 7 charged to the occupant. 8 1. An occupancy that an operator conveys or furnishes to a room 9 remarketer that the room remarketer intends to convey or furnish, 10 directly or indirectly, to an occupant for rent shall be exempt from the 11 taxes imposed by this section, provided that such room remarketer 12 furnishes the operator with a certificate in such form and containing 13 such information as may be prescribed by the commissioner of finance. 14 The operator shall retain such statement and provide it to the commis- 15 sioner of finance upon request. 16 § 11-2503 Records to be kept. a. Every operator and every room 17 remarketer shall keep records of every occupancy and of all rent paid, 18 charged or due thereon and of the tax payable thereon, in such form as 19 the commissioner of finance may by regulation require. Such records 20 shall be available for inspection and examination at any time upon 21 demand by the commissioner of finance or his or her duly authorized 22 agent or employee and shall be preserved for a period of three years, 23 except that the commissioner of finance may consent to their destruction 24 within that period or may require that they be kept longer. 25 b. Notwithstanding the provisions of sections three hundred five and 26 three hundred nine of the state technology law or any other law, the 27 commissioner may require any person who has elected to maintain in an 28 electronic format any portion of the records required to be maintained 29 by that person under this chapter, to make the electronic records avail- 30 able and accessible to the commissioner, notwithstanding that the 31 records are also maintained in a hard copy format. 32 § 11-2504 Returns. a. Every operator and every room remarketer shall 33 file with the commissioner of finance a return of occupancy and of 34 rents, and of the taxes payable thereon, for the quarterly periods 35 ending on the last day of February, May, August and November of each 36 year. Such returns shall be filed within twenty days after the end of 37 the quarterly period covered thereby. The commissioner of finance may 38 permit or require returns to be made by other periods and upon such 39 dates as he or she may specify. If the commissioner of finance deems it 40 necessary in order to insure the payment of the tax imposed by this 41 chapter, he or she may require returns to be made for shorter periods 42 than those prescribed pursuant to the provisions of this subdivision and 43 upon such dates as he or she may specify. 44 b. The forms of returns shall be prescribed by the commissioner of 45 finance and shall contain such information as he or she may deem neces- 46 sary for the proper administration of this chapter. The commissioner of 47 finance may require amended returns to be filed within twenty days after 48 notice and to contain the information specified in the notice. 49 c. If a return required by this chapter is not filed or if a return 50 when filed is incorrect or insufficient on its face the commissioner of 51 finance shall take the necessary steps to enforce the filing of such a 52 return or a corrected return. 53 § 11-2505 Payment of tax. At the time of filing a return of occupancy 54 and of rents each operator and room remarketer shall pay to the commis- 55 sioner of finance the taxes imposed by this chapter upon the rents 56 required to be included in such return, as well as all other moneysS. 8474 1099 1 collected by the operator or room remarketer acting or purporting to act 2 under the provisions of this chapter, even though it be judicially 3 determined that the tax collected is invalidly imposed. All the taxes 4 for the period for which a return is required to be filed shall be due 5 from the operator or room remarketer and payable to the commissioner of 6 finance on the date limited for the filing of the return for such peri- 7 od, without regard to whether a return is filed or whether the return 8 which is filed correctly shows the amount of rents and the taxes due 9 thereon. Where the commissioner of finance in his or her discretion 10 deems it necessary to protect revenues to be obtained under this chapter 11 he or she may require any operator or room remarketer required to 12 collect the tax imposed by this chapter to file with him or her a bond, 13 issued by a surety company authorized to transact business in this state 14 and approved by the superintendent of insurance of this state as to 15 solvency and responsibility, in such amount as the commissioner of 16 finance may fix, to secure the payment of any tax or penalties and 17 interest due or which may become due from such operator or room remark- 18 eter. In the event that the commissioner of finance determines that an 19 operator or room remarketer is to file such bond he or she shall give 20 notice to such operator or room remarketer to that effect specifying the 21 amount of the bond required. The operator or room remarketer shall file 22 such bond within five days after the giving of such notice unless within 23 such five days the operator or room remarketer shall request in writing 24 a hearing before the commissioner of finance at which the necessity, 25 propriety and amount of the bond shall be determined by the commissioner 26 of finance. Such determination shall be final and shall be complied with 27 within fifteen days after the giving of notice thereof. In lieu of such 28 bond, securities approved by the commissioner of finance or cash in such 29 amount as he or she may prescribe, may be deposited which shall be kept 30 in the custody of the commissioner of finance who may at any time with- 31 out notice to the depositor apply them to any tax or interest or penal- 32 ties due, and for that purpose the securities may be sold by him or her 33 at public or private sale without notice to the depositor thereof. 34 § 11-2506 Determination of tax. If a return required by this chapter 35 is not filed, or if a return when filed is incorrect or insufficient, 36 the amount of tax due shall be determined by the commissioner of finance 37 from such information as may be obtainable and, if necessary, the tax 38 may be estimated on the basis of external indices, such as number of 39 rooms, location, scale of rents, comparable rents, type of accommo- 40 dations and service, number of employees or other factors. Notice of 41 such determination shall be given to the person liable for the 42 collection and/or payment of the tax. Such determination shall finally 43 and irrevocably fix the tax unless the person against whom it is 44 assessed, within ninety days after giving of notice of such determi- 45 nation, or, if the commissioner of finance has established a concil- 46 iation procedure pursuant to section 11-124 of the code of the preceding 47 municipality and the taxpayer has requested a conciliation conference in 48 accordance therewith, within ninety days from the mailing of a concil- 49 iation decision or the date of the commissioner's confirmation of the 50 discontinuance of the conciliation proceeding, both (1) serves a peti- 51 tion upon the commissioner of finance and (2) files a petition with the 52 tax appeals tribunal for a hearing, or unless the commissioner of 53 finance of his or her own motion shall redetermine the same. Such hear- 54 ing and any appeal to the tax appeals tribunal sitting en banc from the 55 decision rendered in such hearing shall be conducted in the manner and 56 subject to the requirements prescribed by the tax appeals tribunalS. 8474 1100 1 pursuant to sections one hundred sixty-eight through one hundred seven- 2 ty-two of the charter of the preceding municipality as it existed Janu- 3 ary first, nineteen hundred ninety-four. After such hearing the tax 4 appeals tribunal shall give notice of its decision to the person against 5 whom the tax is assessed. A decision of the tax appeals tribunal 6 sitting en banc shall be reviewable for error, illegality or unconstitu- 7 tionality or any other reason whatsoever by a proceeding under article 8 seventy-eight of the civil practice law and rules if application there- 9 for is made to the supreme court by the person against whom the tax was 10 assessed, within four months after the giving of the notice of such tax 11 appeals tribunal decision. A proceeding under article seventy-eight of 12 the civil practice law and rules shall not be instituted by a person 13 liable for the tax unless: (a) the amount of any tax sought to be 14 reviewed, with penalties and interest thereon, if any, shall be first 15 deposited with the commissioner of finance and there shall be filed with 16 the commissioner of finance an undertaking, issued by a surety company 17 authorized to transact business in this state and approved by the super- 18 intendent of insurance of this state as to solvency and responsibility, 19 in such amount as a justice of the supreme court shall approve, to the 20 effect that if such proceeding be dismissed or the tax confirmed, such 21 person will pay all costs and charges which may accrue in the prose- 22 cution of the proceeding; or (b) at the option of such person such 23 undertaking filed with the commissioner of finance may be in a sum 24 sufficient to cover the taxes, penalties and interest thereon stated in 25 such decision plus the costs and charges which may accrue against it in 26 the prosecution of the proceeding, in which event such person shall not 27 be required to deposit such taxes, penalties and interest as a condition 28 precedent to the application. 29 § 11-2507 Refunds. a. In the manner provided in this section the 30 commissioner of finance shall refund or credit, without interest, any 31 tax, penalty or interest erroneously, illegally or unconstitutionally 32 collected or paid if written application to the commissioner of finance 33 for such refund shall be made within one year from the payment thereof. 34 Whenever a refund or credit is made or denied by the commissioner of 35 finance, he or she shall state his or her reasons therefor and give 36 notice thereof to the taxpayer in writing. Such application may be made 37 by the occupant, operator, room remarketer or other person who has actu- 38 ally paid the tax to the commissioner of finance. Such application may 39 also be made by an operator or room remarketer who has collected and 40 paid over such tax to the commissioner of finance provided that the 41 application is made within one year of the payment by the occupant to 42 the operator or room remarketer, but no actual refund of moneys shall be 43 made to such operator or room remarketer until he or she shall first 44 establish to the satisfaction of the commissioner of finance, under such 45 regulations as the commissioner of finance may prescribe, that he or she 46 has repaid to the occupant the amount for which the application for 47 refund is made. The commissioner of finance may, in lieu of any refund 48 required to be made, allow credit therefor on payments due from the 49 applicant. 50 b. Any determination of the commissioner of finance denying a refund 51 or credit pursuant to subdivision a of this section shall be final and 52 irrevocable unless the applicant for such refund or credit, within nine- 53 ty days from the mailing of notice of such determination, or, if the 54 commissioner of finance has established a conciliation procedure pursu- 55 ant to section 11-124 of the code of the preceding municipality and the 56 applicant has requested a conciliation conference in accordance there-S. 8474 1101 1 with, within ninety days from the mailing of a conciliation decision or 2 the date of the commissioner's confirmation of the discontinuance of the 3 conciliation proceeding, both (1) serves a petition upon the commission- 4 er of finance and (2) files a petition with the tax appeals tribunal for 5 a hearing. Such petition for a refund or credit, made as provided in 6 this section, shall be deemed an application for a revision of any tax, 7 penalty or interest complained of. Such hearing and any appeal to the 8 tax appeals tribunal sitting en banc from the decision rendered in such 9 hearing shall be conducted in the manner and subject to the requirements 10 prescribed by the tax appeals tribunal pursuant to sections one hundred 11 sixty-eight through one hundred seventy-two of the charter of the 12 preceding municipality as it existed January first, nineteen hundred 13 ninety-four. After such hearing, the tax appeals tribunal shall give 14 notice of its decision to the applicant and to the commissioner of 15 finance. The applicant shall be entitled to review such decision of the 16 tax appeals tribunal sitting en banc by a proceeding pursuant to article 17 seventy-eight of the civil practice law and rules, provided such 18 proceeding is instituted within four months after the giving of the 19 notice of such decision, and provided, in the case of an application by 20 a person liable for the tax, that a final determination of tax was not 21 previously made. Such a proceeding shall not be instituted by a person 22 liable for the tax unless an undertaking is filed with the commissioner 23 of finance in such amount and with such sureties as a justice of the 24 supreme court shall approve to the effect that if such proceeding be 25 dismissed or the tax confirmed, such person will pay all costs and 26 charges which may accrue in the prosecution of such proceeding. 27 c. A person shall not be entitled to a revision, refund or credit 28 under this section of a tax, interest or penalty which had been deter- 29 mined to be due pursuant to the provisions of section 11-2506 of this 30 chapter where he or she has had a hearing or an opportunity for a hear- 31 ing, as provided in said section, or has failed to avail himself or 32 herself of the remedies therein provided. No refund or credit shall be 33 made of a tax, interest or penalty paid after a determination by the 34 commissioner of finance made pursuant to section 11-2506 of this chapter 35 unless it be found that such determination was erroneous, illegal or 36 unconstitutional or otherwise improper, by the tax appeals tribunal 37 after a hearing or of the commissioner of finance's own motion, or, if 38 such tax appeals tribunal affirms in whole or in part the determination 39 of the commissioner of finance, in a proceeding under article seventy- 40 eight of the civil practice law and rules, pursuant to the provision of 41 said section, in which event refund or credit without interest shall be 42 made of the tax, interest or penalty found to have been overpaid. 43 § 11-2508 Reserves. In cases where the occupant, operator or room 44 remarketer has applied for a refund and has instituted a proceeding 45 under article seventy-eight of the civil practice law and rules to 46 review a determination adverse to such occupant, operator or room 47 remarketer on his or her application for refund, the comptroller shall 48 set up appropriate reserves to meet any decision adverse to the city. 49 § 11-2509 Remedies exclusive. The remedies provided by sections 50 11-2506 and 11-2507 of this chapter shall be the exclusive remedies 51 available to any person for the review of tax liability imposed by this 52 chapter; and no determination or proposed determination of tax or deter- 53 mination on any application for refund by the commissioner of finance, 54 nor any decision by the tax appeals tribunal or any of its administra- 55 tive law judges, shall be enjoined or reviewed by an action for declara- 56 tory judgment, and action for money had and received or by any action orS. 8474 1102 1 proceeding other than, in the case of a decision by the tax appeals 2 tribunal sitting en banc, a proceeding in the nature of a certiorari 3 proceeding under article seventy-eight of the civil practice law and 4 rules; provided, however, that a taxpayer may proceed by declaratory 5 judgment if he or she institutes suit within thirty days after a defi- 6 ciency assessment is made and pays the amount of the deficiency assess- 7 ment to the commissioner of finance prior to the institution of such 8 suit and posts a bond for costs as provided in section 11-2506 of this 9 chapter. 10 § 11-2510 Proceedings to recover tax. a. Whenever any operator or room 11 remarketer or any officer of a corporate operator or room remarketer or 12 any occupant or other person shall fail to collect and pay over any tax 13 and/or to pay any tax, penalty or interest imposed by this chapter as 14 provided, the corporation counsel shall, upon the request of the commis- 15 sioner of finance bring or cause to be brought an action to enforce the 16 payment of the same on behalf of the city of Staten Island in any court 17 of the state of New York or of any other state or of the United States. 18 If, however, the commissioner of finance in his or her discretion 19 believes that any such operator, or room remarketer, officer, occupant 20 or other person is about to cease business, leave the state or remove or 21 dissipate the assets out of which the tax, penalties or interest might 22 be satisfied, and that any such tax, penalty or interest will not be 23 paid when due, he or she may declare such tax, penalty or interest to be 24 immediately due and payable and may issue a warrant immediately. 25 b. As an additional or alternate remedy, the commissioner of finance 26 may issue a warrant, directed to the city sheriff commanding him or her 27 to levy upon and sell the real and personal property of the operator or 28 room remarketer or officer of a corporate operator or room remarketer or 29 of the occupant or other person liable for the tax, which may be found 30 within the city for the payment of the amount thereof, with any penal- 31 ties and interest, and the cost of executing the warrant, and to return 32 such warrant to the commissioner of finance and to pay to him or her the 33 money collected by virtue thereof within sixty days after the receipt of 34 such warrant. The city sheriff shall within five days after the receipt 35 of the warrant file with the county clerk a copy thereof, and thereupon 36 such clerk shall enter in the judgment docket the name of the person 37 mentioned in the warrant and the amount of the tax, penalties and inter- 38 est for which the warrant is issued and the date when such copy is 39 filed. Thereupon the amount of such warrant so docketed shall become a 40 lien upon the title to and interest in real and personal property of the 41 person against whom the warrant is issued. The city sheriff shall then 42 proceed upon the warrant, in the same manner, and with like effect, as 43 that provided by law in respect to executions issued against property 44 upon judgments of a court of record, and for services in executing the 45 warrant such sheriff shall be entitled to the same fees, which he or she 46 may collect in the same manner. In the discretion of the commissioner of 47 finance a warrant of like terms, force and effect may be issued and 48 directed to any officer or employee of the department of finance, and in 49 the execution thereof such officer or employee shall have all the powers 50 conferred by law upon sheriffs, but shall be entitled to no fee or 51 compensation in excess of the actual expenses paid in the performance of 52 such duty. If a warrant is returned not satisfied in full, the commis- 53 sioner of finance may from time to time issue new warrants and shall 54 also have the same remedies to enforce the amount due thereunder as if 55 the city had recovered judgment therefor and execution thereon had been 56 returned unsatisfied.S. 8474 1103 1 c. Whenever an operator shall make a sale, transfer, or assignment in 2 bulk of any part or the whole of such operator's hotel or of his or her 3 lease, license or other agreement or right to possess or operate such 4 hotel, or of the equipment, furnishings, fixtures, supplies or stock of 5 merchandise, or of the said premises or lease, license or other agree- 6 ment or right to possess or operate such hotel and the equipment, 7 furnishings, fixtures, supplies and stock of merchandise pertaining to 8 the conduct or operation of said hotel, otherwise than in the ordinary 9 and regular prosecution of business, the purchaser, transferee or assig- 10 nee shall at least ten days before taking possession of the subject of 11 said sale, transfer or assignment, or paying therefor, notify the 12 commissioner of finance by registered mail of the proposed sale and of 13 the price, terms and conditions thereof whether or not the seller, 14 transferor or assignor, has represented to, or informed the purchaser, 15 transferee or assignee that it owes any tax pursuant to this chapter, 16 and whether or not the purchaser, transferee or assignee has knowledge 17 that such taxes are owing, and whether any such taxes are in fact owing. 18 Whenever the purchaser, transferee or assignee shall fail to give 19 notice to the commissioner of finance as required by the opening para- 20 graph of this subdivision, or whenever the commissioner of finance shall 21 inform the purchaser, transferee or assignee that a possible claim for 22 such tax or taxes exists, any sums of money, property or choses in 23 action, or other consideration, which the purchaser, transferee or 24 assignee is required to transfer over to the seller, transferor or 25 assignor shall be subject to a first priority right and lien for any 26 such taxes theretofore or thereafter determined to be due from the sell- 27 er, transferor or assignor to the city, and the purchaser, transferee or 28 assignee is forbidden to transfer to the seller, transferor or assignor 29 any such sums of money, property or choses in action to the extent of 30 the amount of the city's claim. For failure to comply with the 31 provisions of this subdivision, the purchaser, transferee or assignee, 32 in addition to being subject to the liabilities and remedies imposed 33 under the provisions of article six of the uniform commercial code, 34 shall be personally liable for the payment to the city of any such taxes 35 theretofore or thereafter determined to be due to the city from the 36 seller, transferor or assignor, and such liability may be assessed and 37 enforced in the same manner as the liability for tax under this chapter. 38 d. The commissioner of finance, if he or she finds that the interests 39 of the city will not thereby be jeopardized, and upon such conditions as 40 the commissioner of finance may require, may release any property from 41 the lien of any warrant or vacate such warrant for unpaid taxes, addi- 42 tions to tax, penalties and interest filed pursuant to subdivision b of 43 this section, and such release or vacating of the warrant may be 44 recorded in the office of any recording officer in which such warrant 45 has been filed. The clerk shall thereupon cancel and discharge as of the 46 original date of docketing the vacated warrant. 47 § 11-2511 General powers of the commissioner of finance. In addition 48 to the powers granted to the commissioner of finance in this chapter, he 49 or she is hereby authorized and empowered: 50 1. To make, adopt and amend rules and regulations appropriate to the 51 carrying out of this chapter and the purposes thereof; 52 2. To extend, for cause shown, the time for filing any return for a 53 period not exceeding thirty days; and to compromise disputed claims in 54 connection with the taxes hereby imposed; 55 3. To request information from the tax commission of the state of New 56 York or the treasury department of the United States relative to anyS. 8474 1104 1 person; and to afford information to such tax commission or such treas- 2 ury department relative to any person, any other provision of this chap- 3 ter to the contrary notwithstanding; 4 4. To delegate his or her functions under this section to a commis- 5 sioner or deputy commissioner in the department of finance or to any 6 employee or employees of the department of finance; 7 5. To prescribe methods for determining the rents for occupancy and to 8 determine the taxable and non-taxable rents; 9 6. To require any operator within the city to keep detailed records of 10 the nature and type of hotel maintained and the nature and type of 11 service rendered, and to require any operator or room remarketer to keep 12 detailed records of the rooms available and rooms occupied daily, leases 13 or occupancy contracts or arrangements, rents received, charged and 14 accrued, the names and addresses of the occupants, whether or not any 15 occupancy is claimed to be subject to the tax imposed by this chapter, 16 and to furnish such information upon request to the commissioner of 17 finance; 18 7. To assess, determine, revise and readjust the taxes imposed under 19 this chapter. 20 § 11-2512 Administration of oaths and compelling testimony. a. The 21 commissioner of finance, his or her employees or agents duly designated 22 and authorized by him or her, the tax appeals tribunal and any of its 23 duly designated and authorized employees or agents shall have power to 24 administer oaths and take affidavits in relation to any matter or 25 proceeding in the exercise of their powers and duties under this chap- 26 ter. The commissioner of finance and the tax appeals tribunal shall 27 have power to subpoena and require the attendance of witnesses and the 28 production of books, papers and documents to secure information perti- 29 nent to the performance of the duties of the commissioner or the tax 30 appeals tribunal under this chapter and of the enforcement of this chap- 31 ter and to examine them in relation thereto, and to issue commissions 32 for the examination of witnesses who are out of the state or unable to 33 attend before such commissioner or tax appeals tribunal or excused from 34 attendance. 35 b. A justice of the supreme court either in court or at chambers shall 36 have power summarily to enforce by proper proceedings the attendance and 37 testimony of witnesses and the production and examination of books, 38 papers and documents called for by the subpoena of the commissioner of 39 finance or the tax appeals tribunal under this chapter. 40 c. Cross-reference; criminal penalties. For failure to obey subpoenas 41 or for testifying falsely, see section 11-4007 of this title; for 42 supplying false or fraudulent information, see section 11-4009 of this 43 title. 44 d. The officers who serve the summons or subpoena of the commissioner 45 of finance or the tax appeals tribunal and witnesses attending in 46 response thereto shall be entitled to the same fees as are allowed to 47 officers and witnesses in civil cases in courts of record, except as 48 otherwise provided under this section. Such officers shall be the city 49 sheriff and his or her duly appointed deputies or any officers or 50 employees of the department of finance or the tax appeals tribunal, 51 designated to serve such process. 52 § 11-2513 Reference to tax. Whenever reference is made in placards 53 or advertisements or in any other publication to this tax, such refer- 54 ence shall be substantially in the following form: "city tax on occupan- 55 cy of hotel rooms", except that in any bill, receipt, statement or otherS. 8474 1105 1 evidence or memorandum of occupancy or rent charge issued or employed by 2 the operator the words "city tax" will suffice. 3 § 11-2514 Registration. By June thirtieth, nineteen hundred seventy, 4 or in the case of operators or room remarketers commencing business or 5 opening new hotels after such date, within three days after such 6 commencement or opening, every operator or room remarketer shall file 7 with the commissioner of finance a certificate of registration in a form 8 prescribed by the commissioner of finance. The commissioner of finance 9 shall within five days after such registration issue without charge to 10 each operator or room remarketer a certificate of authority empowering 11 such operator or room remarketer to collect the tax from the occupant 12 and duplicate thereof for each additional hotel of such operator or room 13 remarketer. Each certificate or duplicate shall state the hotel to 14 which it is applicable. Such certificates of authority shall be promi- 15 nently displayed by the operator or room remarketer in such manner that 16 it may be seen and come to the notice of all occupants and persons seek- 17 ing occupancy. Such certificates shall be non-assignable and nontrans- 18 ferable and shall be surrendered immediately to the commissioner of 19 finance upon the cessation of business at the hotel named or upon its 20 sale or transfer, or upon cessation of business of the named room 21 remarketer. 22 § 11-2515 Interest and penalties. (a) Interest on underpayments. If 23 any amount of tax is not paid or paid over on or before the last date 24 prescribed for payment, without regard to any extension of time granted 25 for payment, interest on such amount at the rate set by the commissioner 26 of finance pursuant to subdivision (g) of this section, or, if no rate 27 is set, at the rate of seven and one-half percent per annum, shall be 28 paid for the period from such last date to the date of payment. In 29 computing the amount of interest to be paid, such interest shall be 30 compounded daily. Interest under this subdivision shall not be paid if 31 the amount thereof is less than one dollar. 32 (b) (1) Failure to file return. (A) In case of failure to file a 33 return under this chapter on or before the prescribed date, determined 34 with regard to any extension of time for filing, unless it is shown that 35 such failure is due to reasonable cause and not due to willful neglect, 36 there shall be added to the amount required to be shown as tax on such 37 return five percent of the amount of such tax if the failure is for not 38 more than one month, with an additional five percent for each additional 39 month or fraction thereof during which such failure continues, not 40 exceeding twenty-five percent in the aggregate. 41 (B) In the case of a failure to file a return of tax within sixty days 42 of the date prescribed for filing of such return, determined with regard 43 to any extension of time for filing, unless it is shown that such fail- 44 ure is due to reasonable cause and not due to willful neglect, the addi- 45 tion to tax under subparagraph (A) of this paragraph shall not be less 46 than the lesser of one hundred dollars or one hundred percent of the 47 amount required to be shown as tax on such return. 48 (C) For purposes of this paragraph, the amount of tax required to be 49 shown on the return shall be reduced by the amount of any part of the 50 tax which is paid on or before the date prescribed for payment of the 51 tax and by the amount of any credit against the tax which may be claimed 52 upon the return. 53 (2) Failure to pay tax shown on return. In case of failure to pay the 54 amount shown as tax on a return required to be filed under this chapter 55 on or before the prescribed date, determined with regard to any exten- 56 sion of time for payment, unless it is shown that such failure is due toS. 8474 1106 1 reasonable cause and not due to willful neglect, there shall be added to 2 the amount shown as tax on such return one-half of one percent of the 3 amount of such tax if the failure is not for more than one month, with 4 an additional one-half of one percent for each additional month or frac- 5 tion thereof during which such failure continues, not exceeding twenty- 6 five percent in the aggregate. For the purpose of computing the addition 7 for any month the amount of tax shown on the return shall be reduced by 8 the amount of any part of the tax which is paid on or before the begin- 9 ning of such month and by the amount of any credit against the tax which 10 may be claimed upon the return. If the amount of tax required to be 11 shown on a return is less than the amount shown as tax on such return, 12 this paragraph shall be applied by substituting such lower amount. 13 (3) Failure to pay tax required to be shown on return. In case of 14 failure to pay any amount in respect of any tax required to be shown on 15 a return required to be filed under this chapter which is not so shown, 16 including a determination made pursuant to section 11-2506 of this chap- 17 ter, within ten days of the date of a notice and demand therefor, unless 18 it is shown that such failure is due to reasonable cause and not due to 19 willful neglect, there shall be added to the amount of tax stated in 20 such notice and demand one-half of one percent of such tax if the fail- 21 ure is not for more than one month, with an additional one-half of one 22 percent for each additional month or fraction thereof during which such 23 failure continues, not exceeding twenty-five percent in the aggregate. 24 For the purpose of computing the addition for any month, the amount of 25 tax stated in the notice and demand shall be reduced by the amount of 26 any part of the tax which is paid before the beginning of such month. 27 (4) Limitations on additions. 28 (A) With respect to any return, the amount of the addition under para- 29 graph one of this subdivision shall be reduced by the amount of the 30 addition under paragraph two of this subdivision for any month to which 31 an addition applies under both paragraphs one and two. In any case 32 described in subparagraph (B) of paragraph one of this subdivision, the 33 amount of the addition under such paragraph one shall not be reduced 34 below the amount provided in such paragraph. 35 (B) With respect to any return, the maximum amount of the addition 36 permitted under paragraph three of this subdivision shall be reduced by 37 the amount of the addition under paragraph one of this subdivision, 38 determined without regard to subparagraph (B) of such paragraph one, 39 which is attributable to the tax for which the notice and demand is made 40 and which is not paid within ten days of such notice and demand. 41 (c) Underpayment due to negligence. (1) If any part of an underpayment 42 of tax is due to negligence or intentional disregard of this chapter or 43 any rules or regulations related thereto, but without intent to defraud, 44 there shall be added to the tax a penalty equal to five percent of the 45 underpayment. 46 (2) There shall be added to the tax, in addition to the amount deter- 47 mined under paragraph one of this subdivision, an amount equal to fifty 48 percent of the interest payable under subdivision (a) of this section 49 with respect to the portion of the underpayment described in such para- 50 graph one which is attributable to the negligence or intentional disre- 51 gard referred to in such paragraph one, for the period beginning on the 52 last date prescribed by law for payment of such underpayment, determined 53 without regard to any extension, and ending on the date of the assess- 54 ment of the tax, or, if earlier, the date of the payment of the tax.S. 8474 1107 1 (d) Underpayment due to fraud. (1) If any part of an underpayment of 2 tax is due to fraud, there shall be added to the tax a penalty equal to 3 two times of the underpayment. 4 (2) The penalty under this subdivision shall be in lieu of any other 5 addition to tax imposed by subdivision (b) or (c) of this section. 6 (e) Additional penalty. Any person who, with fraudulent intent, shall 7 fail to pay any tax imposed by this chapter, or to make, render, sign or 8 certify any return, or to supply any information within the time 9 required by or under this chapter, shall be liable for a penalty of not 10 more than one thousand dollars, in addition to any other amounts 11 required under this chapter to be imposed, assessed and collected by the 12 commissioner of finance. The commissioner of finance shall have the 13 power, in his or her discretion, to waive, reduce or compromise any 14 penalty under this subdivision. 15 (f) The interest and penalties imposed by this section shall be paid 16 and disposed of in the same manner as other revenues from this chapter. 17 Unpaid interest and penalties may be enforced in the same manner as the 18 tax imposed by this chapter. 19 (g)(1) Authority to set interest rates. The commissioner of finance 20 shall set the rate of interest to be paid pursuant to subdivision (a) of 21 this section, but if no such rate of interest is set, such rate shall be 22 deemed to be set at seven and one-half percent per annum. Such rate 23 shall be the rate prescribed in paragraph two of this subdivision but 24 shall not be less than seven and one-half percent per annum. Any such 25 rate set by the commissioner of finance shall apply to taxes, or any 26 portion thereof, which remain or become due on or after the date on 27 which such rate becomes effective and shall apply only with respect to 28 interest computed or computable for periods or portions of periods 29 occurring in the period in which such rate is in effect. 30 (2) General rule. The rate of interest set under this subdivision 31 shall be the sum of (i) the federal short-term rate as provided under 32 paragraph three of this subdivision, plus (ii) seven percentage points. 33 (3) Federal short-term rate. For purposes of this subdivision: 34 (A) The federal short-term rate for any month shall be the federal 35 short-term rate determined by the United States secretary of the treas- 36 ury during such month in accordance with subsection (d) of section 37 twelve hundred seventy-four of the internal revenue code for use in 38 connection with section six thousand six hundred twenty-one of the 39 internal revenue code. Any such rate shall be rounded to the nearest 40 full percent, or, if a multiple of one-half of one percent, such rate 41 shall be increased to the next highest full percent. 42 (B) Period during which rate applies. 43 (i) In general. Except as provided in clause (ii) of this subpara- 44 graph, the federal short-term rate for the first month in each calendar 45 quarter shall apply during the first calendar quarter beginning after 46 such month. 47 (ii) Special rule for the month of September, nineteen hundred eight- 48 y-nine. The federal short-term rate for the month of April, nineteen 49 hundred eighty-nine shall apply with respect to setting the rate of 50 interest for the month of September, nineteen hundred eighty-nine. 51 (4) Publication of interest rate. The commissioner of finance shall 52 cause to be published in the City Record, and give other appropriate 53 general notice of, the interest rate to be set under this subdivision no 54 later than twenty days preceding the first day of the calendar quarter 55 during which such interest rate applies. The setting and publication of 56 such interest rate shall not be included within paragraph (a) of subdi-S. 8474 1108 1 vision five of section one thousand forty-one of the city charter of the 2 preceding municipality as it existed January first, nineteen hundred 3 ninety-four relating to the definition of a rule. 4 (h) Miscellaneous. (1) Officers of a corporate operator or room 5 remarketer and partners in a partnership which is an operator or room 6 remarketer shall be personally liable for the tax collected or required 7 to be collected by such corporation or partnership under this chapter, 8 and subject to the penalties and interest imposed by this section. 9 (2) The certificate of the commissioner of finance to the effect that 10 a tax has not been paid, that a return, bond or registration certificate 11 has not been filed, or that information has not been supplied pursuant 12 to the provisions of this chapter, shall be presumptive evidence there- 13 of. 14 (3) Cross-reference: For criminal penalties, see chapter forty of this 15 title. 16 (i) Any person required to make or maintain records under this chapter 17 who fails to make or maintain or make available to the commissioner 18 these records is subject to a penalty not to exceed one thousand dollars 19 for the first quarterly period or part thereof for which the failure 20 occurs and not to exceed five thousand dollars for each additional quar- 21 terly period or part thereof for which the failure occurs. This penalty 22 is in addition to any other penalty provided for in this chapter but may 23 not be imposed and collected more than once for failures for the same 24 quarterly period or part thereof. If the commissioner determines that a 25 failure to make or maintain or make available records in any quarterly 26 period was entirely due to reasonable cause and not to willful neglect, 27 the commissioner must remit the penalty imposed for that quarterly peri- 28 od. These penalties will be paid and disposed of in the same manner as 29 other revenues from this chapter. These penalties will be determined, 30 assessed, collected, paid and enforced in the same manner as the tax 31 imposed by this chapter, and all the provisions of this chapter relating 32 to tax will be deemed also to apply to the penalties imposed by this 33 subdivision. For purposes of the penalty imposed by this subdivision, a 34 person will be considered to have failed to make or maintain the 35 required records when the commissioner of finance determines that the 36 records made or maintained by that person for a quarterly period do not 37 enable the commissioner to verify occupancy or the amounts received for 38 such occupancy or the taxability of that occupancy and to conduct a 39 complete audit. 40 (j) Any person required to make or maintain records under this chapter 41 who fails to present and make available these records in an auditable 42 form is subject to a penalty not to exceed one thousand dollars for each 43 quarterly period or part thereof for which records maintained by that 44 person are not presented and made available by that person in auditable 45 form, even if these records are adequate to verify credits, receipts, 46 and the taxability thereof and to perform a complete audit. This penal- 47 ty is in addition to any other penalty provided for in this chapter, but 48 will not be imposed and collected more than once for these failures for 49 the same quarterly period or part thereof. If the commissioner deter- 50 mines that any failure described in this subdivision for a quarterly 51 period was entirely due to reasonable cause and not to willful neglect, 52 the commissioner must remit the penalty imposed for that quarter. The 53 penalties imposed by this subdivision will be paid and disposed of in 54 the same manner as other revenues from this chapter. These penalties 55 will be determined, assessed, collected, paid and enforced in the same 56 manner as the tax imposed by this chapter, and all the provisions ofS. 8474 1109 1 this chapter relating to tax will be deemed also to apply to the penal- 2 ties imposed by this subdivision. For purposes of the penalty imposed by 3 this subdivision, a person will be considered to have failed to present 4 and make records available in auditable form when the records presented 5 by that person for that quarter lack sufficient organization, such as by 6 date, invoice number, sales receipts, or sequential numbering, or are 7 otherwise inadequate, without reorganizing, reordering or otherwise 8 rearranging the records into an auditable form, to permit direct recon- 9 ciliation of the receipts, invoices or other source documents with the 10 entries for the quarterly period in the books and records and on the 11 returns of that person. 12 (k) Any person who, having elected to maintain in an electronic format 13 any portion or all of the records he or she is required to make and 14 maintain by this chapter, fails to present and make these records avail- 15 able and accessible to the commissioner in electronic format, is subject 16 to a penalty not to exceed five thousand dollars for each quarterly 17 period or part thereof for which these electronic records are not 18 presented and made available and accessible upon request, notwithstand- 19 ing that the records may also be maintained and available in hard copy 20 format. This penalty is in addition to any other penalty provided for in 21 this chapter, but may not be imposed and collected more than once for a 22 failure for the same quarterly period or part thereof. Provided, howev- 23 er, nothing in this subdivision will prevent the separate imposition, if 24 applicable, of any penalty imposed by subdivision (i) or (j) of this 25 section for the same quarterly period or part thereof. If the commis- 26 sioner determines that the failure to present and make electronically 27 maintained records available and accessible for a quarterly period was 28 entirely due to reasonable cause and not to willful neglect, the commis- 29 sioner must remit the penalty imposed for that quarter. These penalties 30 will be paid and disposed of in the same manner as other revenues from 31 this chapter. These penalties will be determined, assessed, collected, 32 paid and enforced in the same manner as the tax imposed by this chapter, 33 and all the provisions of this chapter relating to tax will be deemed 34 also to apply to the penalty imposed by this subdivision. For purposes 35 of the penalty imposed by this subdivision, a failure to present and 36 make available and accessible a record maintained in electronic format 37 includes not only the denial of access to the requested records that 38 were maintained electronically, but also the failure to make available 39 to the commissioner the information, knowledge, or means necessary to 40 access and otherwise use the electronically maintained records in the 41 inspection and examination of these records. 42 (l) Aiding or assisting in the giving of fraudulent returns, reports, 43 statements or other documents. Any person who, with the intent that tax 44 be evaded, for a fee or other compensation or as an incident to the 45 performance of other services for which that person receives compen- 46 sation, aids or assists in, or procures, counsels, or advises the prepa- 47 ration or presentation under this chapter, or in connection with any 48 matter arising under this chapter, of any return, report, declaration, 49 statement or other document that is fraudulent or false as to any mate- 50 rial matter, or supplies any false or fraudulent information, whether or 51 not such falsity or fraud is with the knowledge or consent of the person 52 authorized or required to present that return, report, declaration, 53 statement or other document, will pay a penalty not exceeding five thou- 54 sand dollars. The definitions in subsection (l) of section one thousand 55 eighty-five of the tax law apply for the purposes of this penalty.S. 8474 1110 1 (m) False or fraudulent document penalty. Any taxpayer that submits a 2 false or fraudulent document to the department will be subject to a 3 penalty of one hundred dollars per document submitted, or five hundred 4 dollars per tax return submitted. This penalty will be in addition to 5 any other penalty provided by law. 6 § 11-2516 Returns to be secret. a. Except in accordance with proper 7 judicial order, or as otherwise provided by law, it shall be unlawful 8 for the commissioner of finance, any officer or employee of the depart- 9 ment of finance, any person engaged or retained on an independent 10 contract basis, the tax appeals tribunal, any commissioner or employee 11 of such tribunal, or any person who, pursuant to this section, is 12 permitted to inspect any return or to whom a copy, an abstract or a 13 portion of any return is furnished, or to whom any information contained 14 in any return is furnished, to divulge or make known in any manner the 15 rents or other information relating to the business of a taxpayer 16 contained in any return required under this chapter. The officers 17 charged with the custody of such returns shall not be required to 18 produce any of them or evidence of anything contained in them in any 19 action or proceeding in any court, except on behalf of the commissioner 20 of finance in an action or proceeding under the provisions of this chap- 21 ter or on behalf of any party to any action or proceeding under the 22 provisions of this chapter when the returns or facts shown thereby are 23 directly involved in such action or proceeding, in either of which 24 events the court may require the production of, and may admit in 25 evidence, so much of said returns or of the facts shown thereby, as are 26 pertinent to the action or proceeding and no more. Nothing in this 27 section shall be construed to prohibit the delivery to a taxpayer or his 28 or her duly authorized representative of a certified copy of any return 29 filed in connection with his or her tax; nor to prohibit the delivery of 30 such a certified copy of such return or of any information contained in 31 or relating thereto, to the United States of America or any department 32 thereof, to the state of New York or any department thereof, or to any 33 agency or department of the city of Staten Island, provided the same is 34 requested for official business; nor to prohibit the inspection for 35 official business of such returns by the corporation counsel or other 36 legal representatives of the city or by the district attorney of any 37 county within the city; nor to prohibit the publication of statistics so 38 classified as to prevent the identification of particular returns and 39 the items thereof. Returns shall be preserved for three years and ther- 40 eafter until the commissioner of finance permits them to be destroyed. 41 b. (1) Any officer or employee of the city who willfully violates the 42 provisions of subdivision a of this section shall be dismissed from 43 office and be incapable of holding any public office for a period of 44 five years thereafter. 45 (2) Cross-reference: For criminal penalties, see chapter forty of this 46 title. 47 c. This section shall be deemed a state statute for purposes of para- 48 graph (a) of subdivision two of section eighty-seven of the public offi- 49 cers law. 50 d. Notwithstanding anything in subdivision a of this section to the 51 contrary, if a taxpayer has petitioned the tax appeals tribunal for 52 administrative review as provided in section one hundred seventy of the 53 charter of the preceding municipality as it existed January first, nine- 54 teen hundred ninety-four, the commissioner of finance shall be author- 55 ized to present to the tribunal any report or return of such taxpayer, 56 or any information contained therein or relating thereto, which may beS. 8474 1111 1 material or relevant to the proceeding before the tribunal. The tax 2 appeals tribunal shall be authorized to publish a copy or a summary of 3 any decision rendered pursuant to section one hundred seventy-one of the 4 charter of the preceding municipality as it existed January first, nine- 5 teen hundred ninety-four. 6 § 11-2517 Notices and limitations of time. a. Any notice authorized or 7 required under the provisions of this chapter may be given by mailing 8 the same to the person for whom it is intended in a postpaid envelope 9 addressed to such person at the address given in the last return filed 10 by him or her pursuant to the provisions of this chapter or in any 11 application made by him or her or, if no return has been filed or appli- 12 cation made, then to such address as may be obtainable. The mailing of 13 such notice shall be presumptive evidence of the receipt of the same by 14 the person to whom addressed. Any period of time which is determined 15 according to the provisions of this chapter by the giving of notice 16 shall commence to run from the date of mailing of such notice. 17 b. The provisions of the civil practice law and rules or any other law 18 relative to limitations of time for the enforcement of a civil remedy 19 shall not apply to any proceeding or action taken by the city to levy, 20 appraise, assess, determine or enforce the collection of any tax or 21 penalty provided by this chapter. However, except in the case of a 22 wilfully false or fraudulent return with intent to evade the tax, no 23 assessment of additional tax shall be made after the expiration of more 24 than three years from the date of the filing of a return; provided, 25 however, that where no return has been filed as provided by law the tax 26 may be assessed at any time. 27 c. Where, before the expiration of the period prescribed in this 28 section for the assessment of an additional tax, a taxpayer has 29 consented in writing that such period be extended, the amount of such 30 additional tax due may be determined at any time within such extended 31 period. The period so extended may be further extended by subsequent 32 consents in writing made before the expiration of the extended period. 33 d. If any return, claim, statement, notice, application, or other 34 document required to be filed, or any payment required to be made, with- 35 in a prescribed period or on or before a prescribed date under authority 36 of any provision of this chapter is, after such period or such date, 37 delivered by United States mail to the commissioner of finance, the tax 38 appeals tribunal, bureau, office, officer or person with which or with 39 whom such document is required to be filed, or to which or to whom such 40 payment is required to be made, the date of the United States postmark 41 stamped on the envelope shall be deemed to be the date of delivery. This 42 subdivision shall apply only if the postmark date falls within the 43 prescribed period or on or before the prescribed date for the filing of 44 such document, or for making the payment, including any extension grant- 45 ed for such filing or payment, and only if such document or payment was 46 deposited in the mail, postage prepaid, properly addressed to the 47 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 48 cer or person with which or with whom the document is required to be 49 filed or to which or to whom such payment is required to be made. If any 50 document is sent by United States registered mail, such registration 51 shall be prima facie evidence that such document was delivered to the 52 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 53 cer or person to which or to whom addressed, and the date of registra- 54 tion shall be deemed the postmark date. The commissioner of finance and, 55 where relevant, the tax appeals tribunal are authorized to provide by 56 regulation the extent to which, such provisions with respect to primaS. 8474 1112 1 facie evidence of delivery and the postmark date, shall apply to certi- 2 fied mail. Except as provided in subdivision f of this section, this 3 subdivision shall apply in the case of postmarks not made by the United 4 States postal service only if and to the extent provided by regulation 5 of the commissioner of finance or, where relevant, the tax appeals 6 tribunal. 7 e. When the last day prescribed under authority of this chapter, 8 including any extension of time, for performing any act falls on a 9 Saturday, Sunday or legal holiday in the state, the performance of such 10 act shall be considered timely if it is performed on the next succeeding 11 day which is not a Saturday, Sunday or legal holiday. 12 f. (1) Any reference in subdivision d of this section to the United 13 States mail shall be treated as including a reference to any delivery 14 service designated by the secretary of the treasury of the United States 15 pursuant to section seventy-five hundred two of the internal revenue 16 code and any reference in subdivision d of this section to a United 17 States postmark shall be treated as including a reference to any date 18 recorded or marked in the manner described in section seventy-five 19 hundred two of the internal revenue code by a designated delivery 20 service. If the commissioner of finance finds that any delivery service 21 designated by such secretary is inadequate for the needs of the city, 22 the commissioner of finance may withdraw such designation for purposes 23 of this title. The commissioner of finance may also designate additional 24 delivery services meeting the criteria of section seventy-five hundred 25 two of the internal revenue code for purposes of this title, or may 26 withdraw any such designation if the commissioner of finance finds that 27 a delivery service so designated is inadequate for the needs of the 28 city. Any reference in subdivision d of this section to the United 29 States mail shall be treated as including a reference to any delivery 30 service designated by the commissioner of finance and any reference in 31 subdivision d of this section to a United States postmark shall be 32 treated as including a reference to any date recorded or marked in the 33 manner described in section seventy-five hundred two of the internal 34 revenue code by a delivery service designated by the commissioner of 35 finance, provided, however any withdrawal of designation or additional 36 designation by the commissioner of finance shall not be effective for 37 purposes of service upon the tax appeals tribunal, unless and until such 38 withdrawal of designation or additional designation is ratified by the 39 president of the tax appeals tribunal. 40 (2) Any equivalent of registered or certified mail designated by the 41 United States secretary of the treasury, or as may be designated by the 42 commissioner of finance pursuant to the same criteria used by such 43 secretary for such designations pursuant to section seventy-five hundred 44 two of the internal revenue code, shall be included within the meaning 45 of registered or certified mail as used in subdivision d of this 46 section. If the commissioner of finance finds that any equivalent of 47 registered or certified mail designated by such secretary or the commis- 48 sioner of finance is inadequate for the needs of the city, the commis- 49 sioner of finance may withdraw such designation for purposes of this 50 title, provided, however, any withdrawal of designation or additional 51 designation by the commissioner of finance shall not be effective for 52 purposes of service upon the tax appeals tribunal, unless and until such 53 withdrawal of designation or additional designation is ratified by the 54 president of the tax appeals tribunal. 55 § 11-2518 Construction and enforcement. This chapter shall be 56 construed and enforced in conformity with chapter one hundred sixty-oneS. 8474 1113 1 of the laws of nineteen hundred seventy, as amended by chapter one 2 hundred sixty-two of the laws of nineteen hundred seventy, pursuant to 3 which it is enacted. 4 § 11-2519 Tourism and convention fund. Notwithstanding any provision 5 of law to the contrary, with respect to the additional tax imposed at 6 the rate of six percent on and after September first, nineteen hundred 7 ninety and before December first, nineteen hundred ninety-four pursuant 8 to subparagraph (B) of paragraph three of subdivision a of section 9 11-2502 of this chapter, four and one-sixth percent of the total reven- 10 ues resulting from the imposition of such tax, including four and one- 11 sixth percent of any interest or penalties thereon, shall be credited to 12 and deposited in a special tourism and convention fund, which shall be 13 used solely for the purpose of promoting tourism and conventions in the 14 city. Seven-eighths of the moneys in such fund shall be made available 15 to the New York Convention and Visitor's Bureau, Inc. pursuant to an 16 annual contract with the city which may specify, among other things, the 17 services which shall be provided by such bureau with such moneys and the 18 content and number of reports which will have to be provided by such 19 bureau to the city concerning the expenditure of such moneys, and 20 provided that the annual budget and business plan of such bureau is 21 approved by the mayor of the city or his or her designee. The remaining 22 one-eighth of the fund shall be spent for promoting tourism and 23 conventions which may include, at the mayor's discretion, moneys spent 24 in connection with additional contracts made with the New York Conven- 25 tion and Visitor's Bureau, Inc. For purposes of this section, the term 26 "promoting tourism and conventions" shall mean developing, placing and 27 purchasing advertising promoting the city, and engaging in such other 28 efforts as are designed to attract tourists and conventions to the city. 29 CHAPTER 26 30 TAX ON MORTGAGES 31 § 11-2601 Imposition of tax. a. A tax of fifty cents for each one 32 hundred dollars and each remaining major fraction thereof of principal 33 debt or obligation which is, or under any contingency may be secured at 34 the date of execution thereof or at any time thereafter by a mortgage on 35 real property situated within the city and recorded on or after August 36 first, nineteen hundred seventy-one and prior to February first, nine- 37 teen hundred eighty-two, is hereby imposed on each such mortgage and 38 shall be collected and paid as provided in this chapter. If the princi- 39 pal debt or obligation which is or by any contingency may be secured by 40 such mortgage is less than one hundred dollars, a tax of fifty cents is 41 hereby imposed on such mortgage, and shall be collected and paid as 42 provided in this chapter. 43 b. With respect to: (1) one, two or three-family houses, individual 44 cooperative apartments and individual residential condominium units, and 45 (2) real property securing a principal debt or obligation of less than 46 five hundred thousand dollars, a tax of fifty cents, and with respect to 47 all other real property a tax of one dollar and twelve and one-half 48 cents, for each one hundred dollars and each remaining major fraction 49 thereof of principal debt or obligation which is, or under any contin- 50 gency may be secured at the date of execution thereof or at any time 51 thereafter by a mortgage on such real property situated within the city 52 and recorded on or after February first, nineteen hundred eighty-two and 53 before July first, nineteen hundred eighty-two, is hereby imposed on 54 each such mortgage and shall be collected and paid as provided in thisS. 8474 1114 1 chapter. If the principal debt or obligation which is or by any contin- 2 gency may be secured by such mortgage is less than one hundred dollars, 3 a tax of one dollar is hereby imposed on such mortgage, and shall be 4 collected and paid as provided in this chapter. 5 c. With respect to: (1) real property securing a principal debt or 6 obligation of less than five hundred thousand dollars, a tax of fifty 7 cents, (2) with respect to one, two or three-family houses, individual 8 cooperative apartments and individual residential condominium units 9 securing a principal debt or obligation of five hundred thousand dollars 10 or more, a tax of sixty-two and one-half cents, and (3) with respect to 11 all other real property, a tax of one dollar and twenty-five cents, for 12 each one hundred dollars and each remaining major fraction thereof of 13 principal debt or obligation which is, or under any contingency may be 14 secured at the date of execution thereof or at any time thereafter by a 15 mortgage on such real property situated within the city and recorded on 16 or after July first, nineteen hundred eighty-two and before August 17 first, nineteen hundred ninety, is hereby imposed on each such mortgage 18 and shall be collected and paid as provided in this chapter. If the 19 principal debt or obligation which is or by any contingency may be 20 secured by such mortgage is less than one hundred dollars, a tax of one 21 dollar is hereby imposed on such mortgage and shall be collected and 22 paid as provided in this chapter. 23 d. With respect to: (1) real property securing a principal debt or 24 obligation of less than five hundred thousand dollars, a tax of one 25 dollar, (2) with respect to one, two or three-family houses and individ- 26 ual residential condominium units securing a principal debt or obli- 27 gation of five hundred thousand dollars or more, a tax of one dollar and 28 twelve and one-half cents, and (3) with respect to all other real prop- 29 erty, a tax of one dollar and seventy-five cents, for each one hundred 30 dollars and each remaining major fraction thereof of principal debt or 31 obligation which is, or under any contingency may be secured at the date 32 of execution thereof, or at anytime thereafter by a mortgage on such 33 real property situated within the city and recorded on or after August 34 first, nineteen hundred ninety, is hereby imposed on each such mortgage 35 and shall be collected and paid as provided in this chapter. If the 36 principal debt or obligation which is or by any contingency may be 37 secured by such mortgage is less than one hundred dollars, a tax of one 38 dollar is hereby imposed on such mortgage and shall be collected and 39 paid as provided in this chapter. 40 e. (1) For the purpose of determining whether a mortgage is subject to 41 the tax imposed by subdivision b or c of this section at a rate in 42 excess of fifty cents, or by subdivision d of this section at a rate in 43 excess of one dollar, for each one hundred dollars and each remaining 44 major fraction thereof of principal debt or obligation, the principal 45 debt or obligation which is or under any contingency may be secured at 46 the date of execution thereof, or at any time thereafter, by such mort- 47 gage shall be aggregated with the principal debt or obligation which is 48 or under any contingency may be secured at the date of execution there- 49 of, or at any time thereafter, by any other mortgage, where such mort- 50 gages form part of the same or related transactions and have the same or 51 related mortgagors. If the commissioner of taxation and finance finds 52 that a mortgage transaction or mortgage transactions have been formu- 53 lated for the purpose of avoiding or evading a rate of tax imposed under 54 this section in excess of the lowest such rate, rather than solely for 55 an independent business or financial purpose, such commissioner shall 56 treat all of the mortgages forming part of such transaction or trans-S. 8474 1115 1 actions as a single mortgage for the purpose of determining the applica- 2 ble rate of tax. For the purposes of this subdivision, all mortgages 3 having the same or related mortgagors offered for recording within a 4 period of twelve consecutive months shall be presumed to form part of a 5 related transaction, unless clear and convincing evidence is offered to 6 the contrary. The commissioner of taxation and finance may require such 7 affidavits and forms, and may prescribe such rules and regulations, as 8 he or she determines to be necessary to enforce the provisions of this 9 subdivision. 10 (2) The term "related", when used in this subdivision with reference 11 to mortgagors, shall include, but shall not be limited to, the following 12 relationships: 13 (i) members of a family, including spouses, ancestors, lineal descend- 14 ants, and brothers and sisters, whether by the whole or half blood; 15 (ii) a shareholder and a corporation more than fifty percent of the 16 value of the outstanding stock of which is owned or controlled directly 17 or indirectly by such shareholder; 18 (iii) a partner and a partnership more than fifty percent of the capi- 19 tal or profits interest in which is owned or controlled directly or 20 indirectly by such partner; 21 (iv) a beneficiary and a trust more than fifty percent of the benefi- 22 cial interest in which is owned or controlled directly or indirectly by 23 such beneficiary; 24 (v) two or more corporations, partnerships, associations, or trusts, 25 or any combination thereof, which are owned or controlled, either 26 directly or indirectly, by the same person, corporation or other entity, 27 or interests; and 28 (vi) a grantor of a trust and such trust. 29 f. Notwithstanding any provision to the contrary in paragraph (a) of 30 subdivision one of section two hundred fifty-five of the tax law, the 31 taxes imposed by subdivision c or d of this section shall also apply to 32 principal indebtedness or obligation secured by or which under any 33 contingency may be secured by a supplemental instrument or additional 34 mortgage, whether or not there is any new or further indebtedness or 35 obligation other than the principal indebtedness or obligation secured 36 by a recorded primary mortgage, where (1) the supplemental instrument or 37 additional mortgage imposes the lien of a recorded mortgage upon real 38 property situated within the city not previously subject to the mortgage 39 or where an additional mortgage upon such additional property is 40 recorded as additional or substitute security for indebtedness or obli- 41 gation already secured by a recorded mortgage and (2) the recorded 42 primary mortgage was on real property outside the city and recorded 43 without payment of the city tax. 44 § 11-2602 Payment and payment over of taxes. The taxes imposed by 45 this chapter shall be payable on the recording of each mortgage of real 46 property subject to taxes pursuant to such chapter. Such taxes shall be 47 paid to the recording officer of the county in which the real property 48 or any part thereof is situated, except where real property is situated 49 within and without the city, the recording officer of the county in 50 which the mortgage is first recorded shall collect the tax imposed by 51 this chapter, as required by subdivision three of section two hundred 52 fifty-three-a of the tax law. It shall be the duty of such recording 53 officer to indorse upon each mortgage a receipt for the amount of the 54 tax so paid. Any mortgage so endorsed may thereupon or thereafter be 55 recorded by any recording officer and the receipt for such tax indorsed 56 upon each mortgage shall be recorded therewith. The record of suchS. 8474 1116 1 receipt shall be conclusive proof that the amount of tax stated therein 2 has been paid upon such mortgage. Upon the first day of each month the 3 city register and the recording officer of Richmond county shall pay 4 over to the commissioner of finance of the city for credit to the gener- 5 al fund of such city, the balance of the moneys received during the 6 preceding month upon account of taxes paid to him or her as prescribed 7 in this section, after deducting the necessary expenses of his or her 8 office as provided in section two hundred sixty-two of the tax law, 9 except taxes paid upon mortgages which are first to be apportioned by 10 the commissioner of taxation and finance, which taxes and money shall be 11 paid over by him or her as provided by the determination of the said 12 commissioner of taxation and finance, provided, however, in each 13 instance where the tax imposed pursuant to section 11-2601 of this chap- 14 ter is one dollar and twenty-five cents for each one hundred dollars and 15 each remaining major fraction thereof of such principal debt or obli- 16 gation, fifty percent of the total amount of such tax, including fifty 17 percent of any interest or penalties thereon, shall be set aside in a 18 special account by the commissioner of finance, and in each instance 19 where the tax imposed pursuant to that section is one dollar and seven- 20 ty-five cents for each one hundred dollars and each remaining major 21 fraction thereof of such principal debt or obligation, thirty-five and 22 seven-tenths percent of the total amount of such tax, including thirty- 23 five and seven-tenths percent of any interest or penalties thereon, 24 shall also be set aside in such special account. Moneys in such account 25 shall be used for payment by such commissioner to the state comptroller 26 for deposit in the urban mass transit operating assistance account of 27 the mass transportation operating assistance fund of any amount of 28 insufficiency certified by the state comptroller pursuant to the 29 provisions of subdivision six of section eighty-eight-a of the state 30 finance law, and on the fifteenth day of each month, such commissioner 31 shall transmit all funds in such account at the end of the preceding 32 month, except the amount required for the payment of any amount of 33 insufficiency certified by the state comptroller and such amount as he 34 or she deems necessary for refunds and such other amounts necessary to 35 finance the city transportation disabled committee and the city para- 36 transit system as established by section fifteen-b of the transportation 37 law, provided, however, that such amounts shall not exceed six percent 38 of the total funds in the account but in no event be less than two 39 hundred twenty-five thousand dollars beginning April first, nineteen 40 hundred eighty-six, and further that beginning November fifteenth, nine- 41 teen hundred eighty-four and during the entire period prior to operation 42 of such system, the total of such amounts shall not exceed three hundred 43 seventy-five thousand dollars for the administrative expenses of such 44 committee and fifty thousand dollars for the expenses of the agency 45 designated pursuant to paragraph b of subdivision five of such section, 46 and other amounts necessary to finance the operating needs of the 47 private bus companies franchised by the city of Staten Island and eligi- 48 ble to receive state operating assistance under section eighteen-b of 49 the transportation law, provided, however, that such amounts shall not 50 exceed four percent of the total funds in the account, to the New York 51 city transit authority for mass transit within the city. 52 § 11-2603 Manner of administration and collection. The taxes imposed 53 under this chapter shall be administered and collected in the same 54 manner as the taxes imposed under subdivision one of section two hundred 55 fifty-three and subdivision one of section two hundred fifty-five of the 56 tax law. All the provisions of article eleven of the tax law relatingS. 8474 1117 1 to or applicable to the administration and collection of the taxes 2 imposed by subdivision one of section two hundred fifty-three and subdi- 3 vision one of section two hundred fifty-five of the tax law shall apply 4 to the taxes imposed under this chapter with the same force and effect 5 as if those provisions had been set forth in full in this chapter except 6 to the extent that any such provision is either inconsistent with a 7 provision of this chapter or not relevant to the tax imposed by this 8 chapter. For purposes of this chapter any reference in article eleven 9 of the tax law to the tax or taxes imposed by such article shall be 10 deemed to refer to a tax imposed by this chapter, and any reference to 11 the phrase "within this state" shall be read as "within this city" 12 unless a different meaning is clearly required. Whenever real property 13 covered by the mortgage is partly within and partly without the city of 14 Staten Island, the portion of the mortgage taxable under this chapter 15 shall be determined in the manner prescribed in the first paragraph of 16 section two hundred sixty of the tax law where the property without the 17 city is located within the state and, in the manner prescribed in the 18 second paragraph of such section of the tax law, where the property 19 without the city is located without the state. 20 § 11-2604 Tax additional. The tax imposed by this chapter shall be 21 in addition to any taxes imposed by section two hundred fifty-three of 22 the tax law. 23 CHAPTER 27 24 ANNUAL VAULT CHARGE 25 § 11-2701 Definitions. When used in this chapter, the following terms 26 shall mean or include: 27 1. "Person." An individual, partnership, society, association, joint- 28 stock company, corporation, estate, receiver, lessee, trustee, assignee, 29 referee, or any other person acting in a fiduciary or representative 30 capacity, whether appointed by a court or otherwise, and any combination 31 of individuals. 32 2. "Vault." Any subsurface opening, structure or erection, whether or 33 not wholly or partly covered over, to the extent that it extends from 34 the building line into any street of the city, for the erection of which 35 a license fee is required pursuant to the charter of the city or this 36 code. 37 3. "Street." Every public street, avenue, road, alley, lane, highway, 38 boulevard, concourse, parkway, driveway, culvert, sidewalk, crosswalk 39 and viaduct, and every other class of public highway, road, square and 40 place within or belonging to the city. 41 4. "Using, occupying or maintaining." Any right or authority to 42 install, store or maintain property of any kind in a vault, or otherwise 43 to use, occupy or maintain such vault for any purpose whatsoever. Such 44 right or authority shall be deemed to exist wherever a vault has not 45 been filled in or closed by the licensee or abutting property owner and 46 the street restored to its original condition pursuant to the require- 47 ments of the charter of the city or this code. 48 5. "City surveyor." Any person appointed a surveyor of the city of 49 Staten Island pursuant to the code of the city. 50 6. "Owner of the premises immediately adjoining the vault." Any person 51 who is the owner of record of real property located in whole or in part 52 within the city, from which a vault has been extended. 53 7. "Depth." The vertical distance from the ceiling, roof or top of a 54 vault to the floor, bottom or lowest point thereof.S. 8474 1118 1 8. "City." The city of Staten Island. 2 9. "Comptroller." The comptroller of the city. 3 10. "Commissioner of finance." The commissioner of finance of the 4 city. 5 11. "Return." Any return required to be filed as under this chapter 6 provided. 7 12. "Tax appeals tribunal." The tax appeals tribunal established by 8 section one hundred sixty-eight of the charter of the preceding munici- 9 pality as it existed January first, nineteen hundred ninety-four. 10 § 11-2702 Imposition of charge. (a) In addition to any and all 11 other license fees, charges and taxes, there is hereby imposed and there 12 shall be paid an annual vault charge, beginning as of July first, nine- 13 teen hundred sixty-two, for the privilege of occupying, using or main- 14 taining a vault in the streets of the city, to be paid by the owner of 15 the premises immediately adjoining the vault. 16 (A) For periods prior to July first, nineteen hundred seventy-one such 17 annual vault charges shall be at the following rates: 18 1. On any vault occupying up to two hundred and fifty square feet in 19 plane or surface area but no more than twelve feet in depth, thirty-five 20 cents per square foot but not less than five dollars for the total occu- 21 pancy; 22 2. On any vault occupying more than two hundred fifty square feet in 23 plane or surface area but not more than twelve feet in depth, thirty- 24 five cents per square foot for the first two hundred fifty square feet 25 of an area and sixty cents per square foot for that portion of the area 26 in excess of two hundred fifty square feet; 27 3. On any vault more than twelve feet in depth, an additional charge 28 for each additional ten feet in depth or fraction thereof calculated by 29 adding the plane or surface area for each such additional depth to the 30 area calculated pursuant to subparagraphs one and two and by applying to 31 such total area the same rates as provided in subparagraphs one and two. 32 The additional area for any additional depth of ten feet or fraction 33 thereof shall however, be reduced by ten percent for each foot of depth 34 less than ten feet. 35 (B) For periods beginning on or after July first, nineteen hundred 36 seventy-one and ending on or before May thirty-first, nineteen hundred 37 eighty, such annual vault charges shall be at the following rates: 38 1. On any vault occupying no more than twelve feet in depth, one 39 dollar per square foot of plane or surface area but not less than five 40 dollars for the total occupancy; 41 2. On any vault more than twelve feet in depth, an additional charge 42 for each additional ten feet in depth, or fraction thereof calculated by 43 adding the plane or surface area for each such additional depth to the 44 area calculated pursuant to subparagraph one of this paragraph and by 45 applying to such total area the same rate as provided in subparagraph 46 one of this paragraph. The additional area for any additional depth of 47 ten feet or fraction thereof shall however, be reduced by ten percent 48 for each foot of depth less than ten feet. 49 (C) For periods beginning on or after June first, nineteen hundred 50 eighty such annual vault charge shall be at the following rates: 51 1. On any vault occupying no more than twelve feet in depth, two 52 dollars per square foot of plane or surface area; 53 2. On any vault more than twelve feet in depth, an additional charge 54 for each additional ten feet in depth, or fraction thereof calculated by 55 adding the plane or surface area for each such additional depth to the 56 area calculated pursuant to subparagraph one of this paragraph and byS. 8474 1119 1 applying to such total area the same rate as provided in subparagraph 2 one of this paragraph. The additional area for any additional depth of 3 ten feet or fraction thereof shall however, be reduced by ten percent 4 for each foot of depth less than ten feet. 5 (D) Notwithstanding any provision of law to the contrary, no annual 6 vault charge or additional charge shall be imposed pursuant to this 7 chapter on or after June first, nineteen hundred ninety-eight. 8 (b) Where the owner of the premises immediately adjoining the vault 9 is exempt from or otherwise not liable for the annual vault charge, the 10 tenant, lessee or any other person using, occupying or maintaining such 11 vault shall be liable therefor. 12 (c) The annual vault charge imposed by this section shall be due from, 13 and shall be paid by, the person who is the owner of the premises imme- 14 diately adjoining the vault on the first day of July of the year for 15 which such charge is imposed except that, on and after June first, nine- 16 teen hundred seventy-two, such charge shall be due from, and shall be 17 paid by the person who is the owner of the premises immediately adjoin- 18 ing the vault on the first day of June of the year for which such charge 19 is imposed. Where the annual vault charge is imposed pursuant to subdi- 20 vision (b) of this section, such annual vault charge shall be due from 21 and paid by, the tenant, lessee or any other person using, occupying or 22 maintaining the vault on the first day of July of the year for which 23 such charge is imposed, except that for years beginning on or after June 24 first, nineteen hundred seventy-two, such charge shall be due from, and 25 paid by, the tenant, lessee or any other person using, occupying or 26 maintaining the vault on the first day of June of the year for which 27 such charge is imposed. 28 (d) In the event that the annual vault charge as imposed by this chap- 29 ter shall be held invalid, then such annual vault charge shall be deemed 30 a tax on the same basis and at the same rates as provided in this chap- 31 ter and all other provisions of this chapter shall be equally applica- 32 ble. 33 (e) Where, prior to the first day of August in any year in which the 34 annual vault charge imposed under this chapter shall be due and payable, 35 if a vault or part thereof is made unavailable for use or occupancy, the 36 annual vault charge paid for such year, pursuant to the provisions of 37 this chapter, shall be refunded in full upon application to and furnish- 38 ing of such proof as the commissioner of finance may require. Where 39 such closing of a vault occurs prior to the last day of December in any 40 such year, fifty percent of the annual vault charge due and actually 41 paid for such year shall be refunded to the payor upon application to 42 and furnishing of such proof as the commissioner of finance may require. 43 Where such closing is limited to a part of a vault, such a refund shall 44 be granted only to the extent that the closing reduces the area of the 45 vault and thereby the amount of the charge for the vault. 46 § 11-2703 Exemptions. The charges imposed by this chapter shall not 47 apply to the following: 48 1. The state of New York, or any public corporation, including a 49 public corporation created pursuant to agreement or compact with another 50 state or the Dominion of Canada, improvement district or other political 51 subdivision of the state; 52 2. The United States of America, insofar as it is immune from taxa- 53 tion; 54 3. The United Nations or other world-wide international organizations 55 of which the United States of America is a member;S. 8474 1120 1 4. Any corporation, or association, or trust, or community chest, fund 2 or foundation, organized and operated exclusively for religious, chari- 3 table, or educational purposes, or for the prevention of cruelty to 4 children or animals, and no part of the net earnings of which inures to 5 the benefit of any private shareholder or individual and no substantial 6 part of the activities of which is carrying on propaganda, or otherwise 7 attempting to influence legislation; provided, however, that nothing in 8 this subdivision shall include an organization operated for the primary 9 purpose of carrying on a trade or business for profit, whether or not 10 all of its profits are payable to one or more organizations described in 11 this subdivision. 12 5. Any vault constituting property defined as a special franchise in 13 section one hundred two of the real property tax law or assessed as such 14 pursuant to article six of such law. 15 6. Any vault to the extent that it is used, occupied or maintained 16 pursuant to a revocable consent granted pursuant to section three 17 hundred seventy-four of the charter of the preceding municipality as it 18 existed January first, nineteen hundred ninety-four. 19 7. Any vault immediately adjoining a building or structure designed 20 for and used exclusively as a single-family or a two-family dwelling 21 house or any other real property which is classified as class one real 22 property pursuant to section eighteen hundred two of the real property 23 tax law. 24 8. Any street occupancy usable solely and exclusively for the melting 25 of snow and ice, or for delivery into the immediately adjoining prem- 26 ises, of coal, oil or other fuel for the heating thereof. 27 9. Any vault occupying no more than thirty-six square feet in plane or 28 surface area, irrespective of the depth of such vault. 29 § 11-2704 Filing of returns. a. Every person subject to the annual 30 vault charge under this chapter shall, on or before the first day of 31 August, nineteen hundred sixty-two, and on or before the fifteenth day 32 of July of every year thereafter, file with the commissioner of finance 33 a return showing the dimensions of the vault as to length, width and 34 depth, except that the return required to be filed on or before July 35 fifteenth, nineteen hundred seventy-two shall be filed on or before June 36 fifteenth, nineteen hundred seventy-two and those due in later years 37 shall be required to be filed on or before June fifteenth of such years. 38 The commissioner of finance, if he or she deems it necessary to insure 39 adequate information with regard to the proper charge to be imposed, may 40 require information returns from other persons, including the owners of 41 real property regardless of whether a vault has been extended therefrom, 42 the users or lessees of the vault or lessees or tenants of the property 43 adjoining the vault. 44 b. The forms of returns shall be prescribed by the commissioner of 45 finance and shall contain such information as he or she may deem neces- 46 sary for the proper administration of this chapter; and the commissioner 47 of finance or his or her duly authorized agents or employees shall be 48 empowered to require supplemental returns. If a return required by this 49 chapter is not filed or if the return when filed is incorrect or insuf- 50 ficient on its face, the commissioner of finance shall take the neces- 51 sary steps to enforce the filing of such a return or of a corrected 52 return. Upon failure to comply with a notice to furnish a return or a 53 sufficient return, the commissioner of finance may require the filing of 54 a certificate signed by a city surveyor specifying the dimensions of the 55 vault.S. 8474 1121 1 c. For each annual vault charge year beginning on or after June first, 2 nineteen hundred eighty-nine, the commissioner of finance shall, at 3 least thirty days prior to the commencement of such year, mail to each 4 person who has filed an annual vault charge return for the immediately 5 preceding year an annual vault charge return form on which shall be 6 shown the amount of the charge for such immediately preceding year. Such 7 return form shall be accompanied by instructions which explain in clear 8 and simple terms how to determine the dimensions and extent of street 9 occupancy of a vault, how to calculate the amount of the charge, and 10 such other matters as the commissioner considers necessary or helpful to 11 an understanding of the requirements of this chapter, provided, however, 12 neither the failure of the commissioner to mail such return form and 13 instructions nor the failure of any person to receive the same shall 14 relieve any person of the obligation to file any return required under 15 this section or of liability for the charge, interest or penalties 16 imposed by this chapter. 17 d. If no form or other notice has previously been sent to a person 18 subject to the annual vault charge with respect to the amount of vault 19 charge owed for any year, the commissioner of finance shall notify such 20 person of the amount owed as soon as practicable after discovering that 21 such amount is owed. 22 § 11-2705 Payment of vault charges. a. At the time of filing a return 23 as required by this chapter the person subject to the annual vault 24 charge shall pay to the commissioner of finance the charge imposed by 25 this chapter. Such charge shall be due and payable on the last day on 26 which such return is required to be filed, without regard to whether a 27 return is filed or whether the return which is filed correctly shows the 28 amount due. 29 b. The charge otherwise required to be paid with the return due on or 30 before June fifteenth, nineteen hundred eighty shall be paid in two 31 equal installments as follows: one-half of the charge shall be paid with 32 the return on or before June fifteenth, nineteen hundred eighty, and 33 one-half of the charge shall be paid on or before September fifteenth, 34 nineteen hundred eighty. 35 § 11-2706 Presumption and burden of proof. For the purpose of the 36 proper administration of this chapter and to prevent evasion of the 37 annual vault charge hereby imposed, it shall be presumed, except where 38 the depth of a vault exceeds twelve feet, that the size of the vault as 39 indicated upon the license therefor originally issued by the former 40 borough president of Staten Island up to and including December thirty- 41 first, nineteen hundred sixty-two, and the commissioner of transporta- 42 tion thereafter is a proper measure of the charge until the contrary is 43 established, and the burden of proving that the size of the vault is not 44 accurately stated upon the license shall be upon the person so claiming. 45 In cases where no license of record has been issued for a vault or where 46 the depth of a vault exceeds twelve feet, the burden of proving the 47 actual size of the vault shall be upon the person liable for the vault 48 charge. 49 § 11-2707 Determination of vault charge. If a return required by this 50 chapter is not filed or if a return when filed is incorrect or insuffi- 51 cient, the amount of the vault charge due shall be determined by the 52 commissioner of finance from such information as may be obtainable and, 53 if necessary, the charge may be estimated on the basis of external 54 indices, including but not limited to the records of the department of 55 transportation, the reports of tax assessors, the reports of inspectors 56 and investigators in the offices of the commissioner of finance andS. 8474 1122 1 commissioner of transportation, or other information or factors. Notice 2 of such determination shall be given to the person liable for the 3 payment thereof. Such determination shall finally and irrevocably fix 4 the vault charge unless the person against whom it is assessed shall, 5 within ninety days after the giving of notice of such determination, or, 6 if the commissioner of finance has established a conciliation procedure 7 pursuant to section 11-124 of the code of the preceding municipality and 8 such person has requested a conciliation conference in accordance there- 9 with, within ninety days from the mailing of a conciliation decision or 10 the date of the commissioner's confirmation of the discontinuance of the 11 conciliation proceeding, both (1) serves a petition upon the commission- 12 er of finance and (2) files a petition with the tax appeals tribunal, or 13 unless the commissioner of finance of his or her own motion shall rede- 14 termine the same. Upon such hearing the tax appeals tribunal may 15 require the filing of a certificate signed by a city surveyor specifying 16 the dimensions of the vault. After such hearing the tax appeals tribu- 17 nal shall give notice of its decision to the person against whom the 18 vault charge is assessed. A decision of the tax appeals tribunal 19 sitting en banc shall be reviewable for error, illegality or unconstitu- 20 tionality or any other reason whatsoever by a proceeding under article 21 seventy-eight of the civil practice law and rules if application there- 22 for is made to the supreme court by the person against whom the vault 23 charge was assessed within four months after the giving of the notice of 24 such tax appeals tribunal decision. A proceeding under article seventy- 25 eight of the civil practice law and rules shall not be instituted by a 26 person against whom the vault charge is assessed unless (a) the amount 27 of any vault charge sought to be reviewed, with penalties and interest 28 thereon, if any, shall be first deposited with the commissioner of 29 finance and there shall be filed with the commissioner of finance an 30 undertaking in such amount and with such sureties as a justice of the 31 supreme court shall approve, to the effect that if such proceeding be 32 dismissed or the vault charge confirmed the person against whom the 33 vault charge is assessed will pay all costs and charges which may accrue 34 in the prosecution of the proceeding, or (b) at the option of such 35 person, such undertaking filed with the commissioner of finance may be 36 in a sum sufficient to cover the vault charge, penalties and interest 37 thereon stated in such decision plus the costs and charges which may 38 accrue against him or her in the prosecution of the proceeding, in which 39 event such person shall not be required to deposit such vault charge, 40 penalties and interest as a condition precedent to the application. 41 § 11-2708 Refunds. a. In the manner provided in this section, the 42 commissioner of finance shall refund or credit, without interest, any 43 vault charge, penalty or interest erroneously, illegally or unconstitu- 44 tionally collected or paid if application to the commissioner of finance 45 for such refund shall be made within one year from the payment thereof. 46 Whenever a refund is made or denied by the commissioner of finance, he 47 or she shall state his or her reason therefor and give notice thereof to 48 the applicant in writing. Such application may be made by the owner of 49 the premises, or other person, who has actually paid the vault charge. 50 The commissioner of finance may, in lieu of any refund required to be 51 made, allow credit therefor on payments due from the applicant. 52 b. Any determination of the commissioner of finance denying a refund 53 or credit pursuant to subdivision a of this section shall be final and 54 irrevocable unless the applicant for such refund or credit, within nine- 55 ty days from the mailing of notice of such determination, or, if the 56 commissioner of finance has established a conciliation procedure pursu-S. 8474 1123 1 ant to section 11-124 of the code of the preceding municipality and the 2 applicant has requested a conciliation conference in accordance there- 3 with, within ninety days from the mailing of a conciliation decision or 4 the date of the commissioner's confirmation of the discontinuance of the 5 conciliation proceeding, both (1) serves a petition upon the commission- 6 er of finance and (2) files a petition with the tax appeals tribunal for 7 a hearing. Such petition for a refund or credit, made as provided in 8 this section, shall be deemed an application for a revision of any vault 9 charge, penalty or interest complained of. Such hearing and any appeal 10 to the tax appeals tribunal sitting en banc from the decision rendered 11 in such hearing shall be conducted in the manner and subject to the 12 requirements prescribed by the tax appeals tribunal pursuant to sections 13 one hundred sixty-eight through one hundred seventy-two of the charter 14 of the preceding municipality as it existed January first, nineteen 15 hundred ninety-four. After such hearing, the tax appeals tribunal shall 16 give notice of its decision to the applicant and to the commissioner of 17 finance. The applicant shall be entitled to review such decision of the 18 tax appeals tribunal sitting en banc by a proceeding pursuant to article 19 seventy-eight of the civil practice law and rules, provided such 20 proceeding is instituted within four months after the giving of the 21 notice of such decision, and provided, in the case of an application by 22 a person against whom the vault charge is assessed, that a final deter- 23 mination of the vault charge due was not previously made. Such a 24 proceeding shall not be instituted by a person against whom the vault 25 charge is assessed unless an undertaking is filed with the commissioner 26 of finance in such amount and with such sureties as a justice of the 27 supreme court shall approve to the effect that if such proceeding be 28 dismissed or the vault charge confirmed, such person will pay all costs 29 and charges which may accrue in the prosecution of such proceeding. 30 c. A person shall not be entitled to a revision, refund or credit 31 under this section of a vault charge, interest or penalty which had been 32 determined to be due pursuant to the provisions of section 11-2707 of 33 this chapter where he or she has had a hearing or an opportunity for a 34 hearing, as provided in said section, or has failed to avail himself or 35 herself of the remedies therein provided. No refund or credit shall be 36 made of annual vault charge, interest or penalty paid after a determi- 37 nation by the commissioner of finance made pursuant to section 11-2707 38 of this chapter unless it be found that such determination was errone- 39 ous, illegal or unconstitutional or otherwise improper, by the tax 40 appeals tribunal after a hearing or on the commissioner's own motion, 41 or, if such tax appeals tribunal affirms in whole or in part the deter- 42 mination of the commissioner of finance, in a proceeding under article 43 seventy-eight of the civil practice law and rules, pursuant to the 44 provisions of said section, in which event refund or credit without 45 interest shall be made of the vault charge, interest or penalty found to 46 have been overpaid. 47 § 11-2709 Reserves. In cases where the person or persons liable for 48 the vault charge imposed by this chapter has applied for a refund and 49 has instituted a proceeding under article seventy-eight of the civil 50 practice law and rules to review a determination adverse to him or her 51 on his or her application for refund, the comptroller shall set up 52 appropriate reserves to meet any decision adverse to the city. 53 § 11-2710 Remedies exclusive. The remedies provided by sections 54 11-2707 and 11-2708 of this chapter shall be the exclusive remedies 55 available to any person for the review of the liability imposed under 56 this chapter, and no determination or proposed determination of an annu-S. 8474 1124 1 al vault charge or determination on any application for refund by the 2 commissioner of finance, nor any decision by the tax appeals tribunal or 3 any of its administrative law judges, shall be enjoined or reviewed by 4 an action for declaratory judgment, an action for money had and received 5 or by any action or proceeding other than, in the case of a decision by 6 the tax appeals tribunal sitting en banc, a proceeding in the nature of 7 a certiorari proceeding under article seventy-eight of the civil prac- 8 tice law and rules; provided, however, that a person liable for the 9 annual vault charge may proceed by declaratory judgment if he or she 10 institutes suit within thirty days after a deficiency assessment is made 11 and pays the amount of the deficiency assessment to the commissioner of 12 finance prior to the institution of such suit and posts a bond for costs 13 as provided in section 11-2707 of this chapter. 14 § 11-2711 Proceedings to recover annual vault charge. a. Whenever any 15 person shall fail to pay any vault charge, penalty or interest imposed 16 by this chapter as provided in this chapter, the corporation counsel 17 shall, upon the request of the commissioner of finance bring, or cause 18 to be brought, an action to enforce the payment of the same on behalf of 19 the city of Staten Island in any court of the state of New York or of 20 any other state or of the United States. 21 b. As an additional remedy or as an alternate remedy, the commissioner 22 of finance may issue a warrant, directed to the city sheriff, commanding 23 him or her to levy upon and sell the real and personal property of the 24 person liable for vault charges which may be found within the city for 25 the payment of the amount thereof, with any penalties and interest, and 26 the cost of executing the warrant, and to return such warrant to the 27 commissioner of finance and to pay to him or her the money collected by 28 virtue thereof within sixty days after the receipt of such warrant. The 29 city sheriff shall within five days after the receipt of the warrant 30 file with the county clerk a copy thereof, and thereupon such clerk 31 shall enter in the judgment docket the name of the person mentioned in 32 the warrant and the amount of the vault charge, penalty and interest for 33 which the warrant is issued and the date when such copy is filed. Ther- 34 eupon the amount of such warrant so docketed shall become a lien upon 35 the title to and interest in real and personal property of the person 36 against whom the warrant is issued. The city sheriff shall then proceed 37 upon the warrant in the same manner, and with like effect, as that 38 provided by law in respect to executions issued against property upon 39 judgments of a court of record and for services in executing the warrant 40 he or she shall be entitled to the same fees, which he or she may 41 collect in the same manner. In the discretion of the commissioner of 42 finance a warrant of like terms, force and effect may be issued and 43 directed to an officer or employee of the department of finance, and in 44 the execution thereof such officer or employee shall have all the powers 45 conferred by law upon sheriffs, but shall be entitled to no fee or 46 compensation in excess of the actual expenses paid in the performance of 47 such duty. If a warrant is returned not satisfied in full, the commis- 48 sioner of finance may from time to time issue new warrants and shall 49 also have the same remedies to enforce the amount due thereunder as if 50 the city had recovered judgment therefor and execution thereon had been 51 returned unsatisfied. 52 c. In addition to any other lien provided for in this section, the 53 annual vault charge imposed by this chapter shall become a lien, binding 54 upon the premises immediately adjoining such vault, on the date such 55 charge is required to be paid until the same is paid in full.S. 8474 1125 1 d. The commissioner of finance, if he or she finds that the interests 2 of the city will not thereby be jeopardized, and upon such conditions as 3 the commissioner of finance may require, may release any property from 4 the lien of any warrant or vacate such warrant for unpaid vault charges, 5 additions to vault charges, penalties and interest filed pursuant to 6 subdivision b of this section, and such release or vacating of the 7 warrant may be recorded in the office of any recording officer in which 8 such warrant has been filed. The clerk shall thereupon cancel and 9 discharge as of the original date of docketing the vacated warrant. 10 § 11-2712 General powers of the commissioner of finance. In addition 11 to all other powers granted to the commissioner of finance in this chap- 12 ter, he or she is hereby authorized and empowered: 13 1. To make, adopt and amend rules and regulations appropriate to the 14 carrying out of this chapter and the purpose thereof; 15 2. To extend, for cause shown, the time for filing any return for a 16 period not exceeding sixty days; and to compromise disputed claims in 17 connection with the vault charges imposed under this chapter; 18 3. To delegate his or her functions under this chapter to a deputy 19 commissioner of finance or any employee or employees of the department 20 of finance; 21 4. To prescribe methods for determining the size, dimensions, depth 22 and extent of street occupancy of a vault; to set forth the manner of 23 computing the vault charges under this chapter; to prescribe standards 24 or methods, by regulation or otherwise, for determining whether a vault 25 has been made unavailable for use or occupancy; and the commissioner of 26 finance or his or her designated employees or agents shall have power to 27 inspect premises for the purpose of determining the extent, if any, of 28 liability imposed by this chapter. 29 5. To require any owner of premises or licensee or other person using, 30 occupying or maintaining a vault to obtain from the commissioner of 31 finance a certificate stating the dimensions and depth of the vault and 32 that the vault charge thereon has been paid and to exhibit the same to 33 duly authorized employees at the premises or real property adjoining the 34 said vault, and to keep such records, and for such length of time, as 35 may be required for the proper administration of this chapter, and to 36 furnish such records to the commissioner of finance upon request; 37 6. To assess, reassess, determine, revise and readjust the vault 38 charges imposed under this chapter; 39 7. Where he or she has exercised his or her authorized power to 40 require the filing of a certificate signed by a city surveyor specifying 41 the dimensions of a vault and the owner of the premises has failed to 42 comply, he or she may obtain such certificate and, in such situation, 43 the necessary expense of obtaining such certificate shall constitute a 44 lien against such premises until paid. 45 8. The commissioner of finance or his or her designated employees or 46 agents shall have power to inspect premises for the purpose of determin- 47 ing the extent, if any, of liability imposed by this chapter. 48 § 11-2713 Administration of oaths and compelling testimony. a. The 49 commissioner of finance, his or her employees duly designated and 50 authorized by the commissioner, the tax appeals tribunal and any of its 51 duly designated and authorized employees shall have power to administer 52 oaths and take affidavits in relation to any matter or proceeding in the 53 exercise of their powers and duties under this chapter. The commissioner 54 of finance and the tax appeals tribunal shall have power to subpoena and 55 require the attendance of witnesses and the production of books, papers 56 and documents to secure information pertinent to the performance of theS. 8474 1126 1 duties of the commissioner or of the tax appeals tribunal under this 2 chapter and of the enforcement of this chapter and to examine them in 3 relation thereto, and to issue commissions for the examination of 4 witnesses who are out of the state or unable to attend before such 5 commissioner or the tax appeals tribunal or excused from attendance. 6 b. A justice of the supreme court either in court or at chambers shall 7 have power summarily to enforce by proper proceedings the attendance and 8 testimony of witnesses and the production and examination of books, 9 papers and documents called for by the subpoena of the commissioner of 10 finance or the tax appeals tribunal under this chapter. 11 c. Cross-reference; criminal penalties. For failure to obey subpoenas 12 or for testifying falsely, see section 11-4007 of this title; for 13 supplying false or fraudulent information, see section 11-4009 of this 14 title. 15 d. The officers who serve the summons or subpoena of the commissioner 16 of finance or the tax appeals tribunal under this chapter and witnesses 17 attending in response thereto shall be entitled to the same fees as are 18 allowed to officers and witnesses in civil cases in courts of record, 19 except as otherwise provided under this chapter. Such officers shall be 20 the city sheriff and his or her duly appointed deputies or any officers 21 or employees of the department of finance or the tax appeals tribunal, 22 designated to serve such process. 23 § 11-2714 Interest and penalties. (a) Interest on underpayments. If 24 any annual vault charge is not paid on or before the last date 25 prescribed for payment, without regard to any extension of time granted 26 for payment, interest on such amount at the rate set by the commissioner 27 of finance pursuant to subdivision (g) of this section, or, if no rate 28 is set, at the rate of seven and one-half percent per annum, shall be 29 paid for the period from such last date to the date of payment. In 30 computing the amount of interest to be paid, such interest shall be 31 compounded daily. Interest under this subdivision shall not be paid if 32 the amount thereof is less than one dollar. 33 (b) (1) Failure to file return. (A) In case of failure to file a 34 return under this chapter on or before the prescribed date, determined 35 with regard to any extension of time for filing, unless it is shown that 36 such failure is due to reasonable cause and not due to willful neglect, 37 there shall be added to the amount required to be shown as vault charge 38 on such return five percent of the amount of such charge if the failure 39 is for not more than one month, with an additional five percent for each 40 additional month or fraction thereof during which such failure contin- 41 ues, not exceeding twenty-five percent in the aggregate. 42 (B) In the case of a failure to file a vault charge return within 43 sixty days of the date prescribed for filing of such return, determined 44 with regard to any extension of time for filing, unless it is shown that 45 such failure is due to reasonable cause and not due to willful neglect, 46 the addition to the vault charge under subparagraph (A) of this para- 47 graph shall not be less than the lesser of one hundred dollars or one 48 hundred percent of the amount required to be shown as vault charge on 49 such return. 50 (C) For purposes of this paragraph, the amount of vault charge 51 required to be shown on the return shall be reduced by the amount of any 52 part of the charge which is paid on or before the date prescribed for 53 payment of the charge and by the amount of any credit against the charge 54 which may be claimed upon the return. 55 (2) Failure to pay vault charge shown on return. In case of failure to 56 pay the amount shown as vault charge on a return required to be filedS. 8474 1127 1 under this chapter on or before the prescribed date, determined with 2 regard to any extension of time for payment, unless it is shown that 3 such failure is due to reasonable cause and not due to willful neglect, 4 there shall be added to the amount shown as vault charge on such return 5 one-half of one percent of the amount of such charge if the failure is 6 not for more than one month, with an additional one-half of one percent 7 for each additional month or fraction thereof during which such failure 8 continues, not exceeding twenty-five percent in the aggregate. For the 9 purpose of computing the addition for any month the amount of vault 10 charge shown on the return shall be reduced by the amount of any part of 11 the charge which is paid on or before the beginning of such month and by 12 the amount of any credit against the charge which may be claimed upon 13 the return. If the amount of vault charge required to be shown on a 14 return is less than the amount shown as such charge on such return, this 15 paragraph shall be applied by substituting such lower amount. 16 (3) Failure to pay vault charge required to be shown on return. In 17 case of failure to pay any amount in respect of any vault charge 18 required to be shown on a return required to be filed under this chapter 19 which is not so shown, including a determination made pursuant to 20 section 11-1106 of this title, within ten days of the date of a notice 21 and demand therefor, unless it is shown that such failure is due to 22 reasonable cause and not due to willful neglect, there shall be added to 23 the amount of vault charge stated in such notice and demand one-half of 24 one percent of such charge if the failure is not for more than one 25 month, with an additional one-half of one percent for each additional 26 month or fraction thereof during which such failure continues, not 27 exceeding twenty-five percent in the aggregate. For the purpose of 28 computing the addition for any month, the amount of vault charge stated 29 in the notice and demand shall be reduced by the amount of any part of 30 the charge which is paid before the beginning of such month. 31 (4) Limitations on additions. 32 (A) With respect to any return, the amount of the addition under para- 33 graph one of this subdivision shall be reduced by the amount of the 34 addition under paragraph two of this subdivision for any month to which 35 an addition applies under both paragraphs one and two. In any case 36 described in subparagraph (B) of paragraph one of this subdivision, the 37 amount of the addition under such paragraph one shall not be reduced 38 below the amount provided in such subparagraph. 39 (B) With respect to any return, the maximum amount of the addition 40 permitted under paragraph three of this subdivision shall be reduced by 41 the amount of the addition under paragraph one of this subdivision, 42 determined without regard to subparagraph (B) of such paragraph one, 43 which is attributable to the charge for which the notice and demand is 44 made and which is not paid within ten days of such notice and demand. 45 (c) Underpayment due to negligence. (1) If any part of an underpayment 46 of a vault charge is due to negligence or intentional disregard of this 47 chapter or any rules or regulations pursuant thereto, but without intent 48 to defraud, there shall be added to the charge a penalty equal to five 49 percent of the underpayment. 50 (2) There shall be added to the charge, in addition to the amount 51 determined under paragraph one of this subdivision, an amount equal to 52 fifty percent of the interest payable under subdivision (a) of this 53 section with respect to the portion of the underpayment described in 54 such paragraph one which is attributable to the negligence or inten- 55 tional disregard referred to in such paragraph one, for the period 56 beginning on the last date prescribed by law for payment of such under-S. 8474 1128 1 payment, determined without regard to any extension, and ending on the 2 date of the assessment of the charge, or, if earlier, the date of the 3 payment of the charge. 4 (d) Underpayment due to fraud. (1) If any part of an underpayment of a 5 vault charge is due to fraud, there shall be added to the charge a 6 penalty equal to fifty percent of the underpayment. 7 (2) There shall be added to the charge, in addition to the penalty 8 determined under paragraph one of this subdivision, an amount equal to 9 fifty percent of the interest payable under subdivision (a) of this 10 section with respect to the portion of the underpayment described in 11 such paragraph one which is attributable to fraud, for the period begin- 12 ning on the last day prescribed by law for payment of such underpayment, 13 determined without regard to any extension, and ending on the date of 14 the assessment of the charge, or, if earlier, the date of the payment of 15 the charge. 16 (3) The penalty under this subdivision shall be in lieu of any other 17 addition to the vault charge imposed by subdivision (b) or (c) of this 18 section. 19 (e) Additional penalty. Any person who, with fraudulent intent, shall 20 fail to pay any vault charge imposed by this chapter, or to make, 21 render, sign or certify any return, or to supply any information within 22 the time required by or under this chapter, shall be liable for a penal- 23 ty of not more than one thousand dollars, in addition to any other 24 amounts required under this chapter to be imposed, assessed and 25 collected by the commissioner of finance. The commissioner of finance 26 shall have the power, in his or her discretion, to waive, reduce or 27 compromise any penalty under this subdivision. 28 (f) The interest and penalties imposed by this section shall be paid 29 and disposed of in the same manner as other revenues from this chapter. 30 Unpaid interest and penalties may be enforced in the same manner as the 31 vault charge imposed by this chapter. 32 (g)(1) Authority to set interest rates. The commissioner of finance, 33 shall set the rate of interest to be paid pursuant to subdivision (a) of 34 this section, but if no such rate of interest is set, such rate shall be 35 deemed to be set at seven and one-half percent per annum. Such rate 36 shall be the rate prescribed in paragraph two of this subdivision but 37 shall not be less than seven and one-half percent per annum. Any such 38 rate set by the commissioner of finance shall apply to vault charges, or 39 any portion thereof, which remain or become due on or after the date on 40 which such rate becomes effective and shall apply only with respect to 41 interest computed or computable for periods or portions of periods 42 occurring in the period in which such rate is in effect. 43 (2) General rule. The rate of interest set under this subdivision 44 shall be the sum of (i) the federal short-term rate as provided under 45 paragraph three of this subdivision, plus (ii) five percentage points. 46 (3) Federal short-term rate. For purposes of this subdivision: 47 (A) The federal short-term rate for any month shall be the federal 48 short-term rate determined by the United States secretary of the treas- 49 ury during such month in accordance with subsection (d) of section 50 twelve hundred seventy-four of the internal revenue code for use in 51 connection with section six thousand six hundred twenty-one of the 52 internal revenue code. Any such rate shall be rounded to the nearest 53 full percent, or, if a multiple of one-half of one percent, such rate 54 shall be increased to the next highest full percent. 55 (B) Period during which rate applies.S. 8474 1129 1 (i) In general. Except as provided in clause (ii) of this subpara- 2 graph, the federal short-term rate for the first month in each calendar 3 quarter shall apply during the first calendar quarter beginning after 4 such month. 5 (ii) Special rule for the month of September, nineteen hundred eight- 6 y-nine. The federal short-term rate for the month of April, nineteen 7 hundred eighty-nine shall apply with respect to setting the rate of 8 interest for the month of September, nineteen hundred eighty-nine. 9 (4) Publication of interest rate. The commissioner of finance shall 10 cause to be published in the City Record, and give other appropriate 11 general notice of, the interest rate to be set under this subdivision no 12 later than twenty days preceding the first day of the calendar quarter 13 during which such interest rate applies. The setting and publication of 14 such interest rate shall not be included within paragraph (a) of subdi- 15 vision five of section one thousand forty-one of the city charter of the 16 preceding municipality as it existed January first, nineteen hundred 17 ninety-four relating to the definition of a rule. 18 (h) Miscellaneous. (1) The certificate of the commissioner of finance 19 to the effect that a vault charge has not been paid, that a vault has 20 not been licensed, that a return has not been filed, that access has not 21 been allowed, or that information has not been supplied pursuant to the 22 provisions of this chapter, shall be presumptive evidence thereof. 23 (2) Cross-reference: For criminal penalties, see chapter forty of this 24 title. 25 § 11-2715 Notices and limitations of time. a. Any notice authorized 26 or required under the provisions of this chapter may be given to the 27 person for whom it is intended by mailing it in a postpaid envelope 28 addressed to such person at the address given in the return filed by him 29 or her pursuant to the provisions of this chapter or in any application 30 made by him or her or, if no such return has been filed or application 31 made, then to the address of the premises immediately adjoining the 32 vault. The mailing of a notice as in this subdivision provided, shall 33 be presumptive evidence of the receipt of the same by the person to whom 34 addressed. Any period of time which is determined according to the 35 provisions of this chapter by the giving of notice shall commence to run 36 from the date of mailing of such notice as in this subdivision provided. 37 b. The provisions of the civil practice law and rules or any other law 38 relative to limitations of time for the enforcement of a civil remedy 39 shall not apply to any proceeding or action taken by the city to 40 appraise, assess, determine, levy or enforce the collection of any vault 41 charge or penalty provided by this chapter. However, except in the case 42 of a wilfully false or fraudulent return with intent to evade the vault 43 charge, no assessment shall be made after the expiration of more than 44 three years from the date of such return; provided, however, that where 45 no return has been filed as provided by law, the annual vault charge may 46 be assessed at any time. 47 c. Where, before the expiration of the period prescribed in this 48 section for the assessment of an additional vault charge, a person has 49 consented in writing that such period be extended, the amount of such 50 additional vault charge due may be determined at any time within such 51 extended period. The period so extended may be further extended by 52 subsequent consents in writing made before the expiration of the 53 extended period. 54 d. If any return, claim, statement, notice, application, or other 55 document required to be filed, or any payment required to be made, with- 56 in a prescribed period or on or before a prescribed date under authorityS. 8474 1130 1 of any provision of this chapter is, after such period or such date, 2 delivered by United States mail to the commissioner of finance, the tax 3 appeals tribunal, bureau, office, officer or person with which or with 4 whom such document is required to be filed, or to which or to whom such 5 payment is required to be made, the date of the United States postmark 6 stamped on the envelope shall be deemed to be the date of delivery. 7 This subdivision shall apply only if the postmark date falls within the 8 prescribed period or on or before the prescribed date for the filing of 9 such document, or for making the payment, including any extension grant- 10 ed for such filing or payment, and only if such document or payment was 11 deposited in the mail, postage prepaid, properly addressed to the 12 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 13 cer or person with which or with whom the document is required to be 14 filed or to which or to whom such payment is required to be made. If any 15 document is sent by United States registered mail, such registration 16 shall be prima facie evidence that such document was delivered to the 17 commissioner of finance, the tax appeals tribunal, bureau, office, offi- 18 cer or person to which or to whom addressed, and the date of registra- 19 tion shall be deemed the postmark date. The commissioner of finance and, 20 where relevant, the tax appeals tribunal are authorized to provide by 21 regulation the extent to which, such provisions with respect to prima 22 facie evidence of delivery and the postmark date, shall apply to certi- 23 fied mail. This subdivision shall apply in the case of postmarks not 24 made by the United States postal service only if and to the extent 25 provided by regulation of the commissioner of finance or, where rele- 26 vant, the tax appeals tribunal. 27 e. When the last day prescribed under authority of this chapter, 28 including any extension of time, for performing any act falls on a 29 Saturday, Sunday or legal holiday in the state, the performance of such 30 act shall be considered timely if it is performed on the next succeeding 31 day which is not a Saturday, Sunday or legal holiday. 32 § 11-2715.1 Vault charge amnesty program. a. Notwithstanding any other 33 provision of law to the contrary, there is hereby established a nine- 34 month amnesty program, beginning January first, nineteen hundred eight- 35 y-nine and ending September thirtieth, nineteen hundred eighty-nine 36 (hereinafter referred to as the "amnesty period"), for all persons owing 37 the annual vault charge imposed by this chapter. Such amnesty program 38 shall be administered by the commissioner of finance and shall apply to 39 liabilities for annual vault charge years ending prior to June first, 40 nineteen hundred eighty-nine. 41 b. (1) A person seeking amnesty pursuant to this section must, during 42 the amnesty period, file a written application therefor with the commis- 43 sioner of finance, on a form prescribed by the commissioner, and must 44 provide such information as the commissioner may require. In order to 45 qualify for amnesty, such person must pay all annual vault charges for 46 which he or she is liable. Upon payment by such person to the commis- 47 sioner of all such charges as provided in this subdivision, the commis- 48 sioner shall waive any applicable penalties and interest, and no civil, 49 administrative or criminal action or proceeding shall be brought against 50 such person with respect to the charges so paid. In addition, the 51 commissioner shall release the lien binding upon the premises immediate- 52 ly adjoining the vault pursuant to subdivision c of section 11-2711 of 53 this chapter for charges which became payable prior to the time such 54 person acquired title to the premises. Failure to pay all charges as 55 provided in this subdivision shall invalidate any amnesty granted pursu- 56 ant to this section.S. 8474 1131 1 (2) In the case of any vault adjoining premises owned by a person who 2 (A) prior to January first, nineteen hundred eighty-nine, paid all annu- 3 al vault charges and interest and penalties for which he or she was 4 liable, and (B) is otherwise in full compliance with this chapter, the 5 commissioner of finance shall release the lien binding upon the premises 6 immediately adjoining the vault pursuant to subdivision c of section 7 11-2711 of this chapter for charges which became payable prior to the 8 time such person acquired title to the premises. 9 c. Amnesty shall not be granted to any person subject to the annual 10 vault charge who is a party to any civil litigation which is pending on 11 the date of such person's application in any court of this state or the 12 United States for nonpayment or other delinquency in relation to the 13 annual vault charge. A civil litigation shall not be deemed to be pend- 14 ing if such person withdraws from such litigation prior to the granting 15 of amnesty. 16 d. No refund or credit shall be granted of any penalty or interest 17 paid prior to the time the person subject to the annual vault charge 18 makes a request for amnesty pursuant to subdivision b of this section. 19 e. Unless the commissioner of finance on his or her own motion rede- 20 termines the amount of the annual vault charge, no refund or credit 21 shall be granted of any charges paid under this section. 22 f. The commissioner of finance shall formulate such regulations as are 23 necessary, issue forms and instructions, and take any and all other 24 actions necessary to implement the provisions of this section. Further- 25 more, prior to and throughout the duration of the amnesty period, the 26 commissioner of finance shall implement a plan for prominently announc- 27 ing and explaining the amnesty program. Such plan shall be reasonably 28 calculated to inform all property owners who may be liable for vault 29 charges and may include written announcements sent in tax bills and 30 other mailings done by the city of Staten Island to property owners, 31 public service announcements, advertisements in newspapers of general 32 circulation and notification of community boards. The plan shall 33 include, but not be limited to, information which explains the determi- 34 nation of vault size and charge. 35 § 11-2715.3 Severability. If any clause, sentence, paragraph, section 36 or part of this chapter or the application thereof to any person or 37 circumstance shall for any reason be adjudged by a court of competent 38 jurisdiction to be invalid, such judgment shall not affect, impair or 39 invalidate the remainder of this chapter or the application thereof to 40 other persons or circumstances, but shall be confined in its operation 41 to the clause, sentence, paragraph, section or part thereof directly 42 involved in the controversy in which such judgment shall have been 43 rendered and to the person or circumstance involved. 44 § 11-2716 Construction and enforcement. This chapter shall be 45 construed and enforced in conformity with chapter nine hundred forty- 46 nine of the laws of nineteen hundred sixty-two, pursuant to which it is 47 enacted. 48 § 11-2717 Effective date. This chapter shall take effect July first, 49 nineteen hundred sixty-two and shall remain in effect so long as the 50 power of the city to adopt such laws for revenue purposes shall exist. 51 CHAPTER 28 52 CLAIMS AGAINST FIRE INSURANCE PROCEEDSS. 8474 1132 1 § 11-2801 Claims against fire insurance proceeds. Definitions. 1. As 2 used in this chapter, any inconsistent provision of law notwithstanding, 3 the following terms shall have the following meanings: 4 (a) "Commissioner" means the commissioner of finance. 5 (b) "Real property" means property upon which there is erected any 6 residential, commercial or industrial building or structure except a one 7 or two family residential structure. 8 (c) "Lien" means any lien including liens for taxes, special ad valo- 9 rem levies, special assessments and municipal charges arising by opera- 10 tion of law against property in favor of the city and remaining undisc- 11 harged for a period of one year or more. 12 (d) "Board" means the board created by subdivision five of this 13 section. 14 (e) "Special lien" means a lien upon fire insurance proceeds pursuant 15 to this chapter and chapter seven hundred thirty-eight of the laws of 16 nineteen hundred seventy-seven. 17 (f) "Fund" means the fire insurance proceeds fund created pursuant to 18 subdivision ten of this section. 19 2. The commissioner shall file a notice of intention to claim against 20 the proceeds of fire insurance policies pursuant to section twenty-two 21 of the general municipal law with the state superintendent of insurance 22 for entry in the index of liens maintained by him or her as provided in 23 section three hundred thirty-one of the insurance law. 24 3. Prior to the payment of any proceeds of a policy of insurance for 25 damages caused by fire to real property, which policy insures the inter- 26 est of an owner and is issued on real property located within the city, 27 and following notification to the commissioner by an insurer of the 28 filing of a claim for payment of such proceeds, the commissioner shall 29 claim, by serving a certificate of lien, against such proceeds to the 30 extent of any lien, including interest and penalties to the date of the 31 claim, thereon, which claim when made and perfected in the manner 32 provided for in section twenty-two of the general municipal law and 33 section three hundred thirty-one of the insurance law, shall constitute 34 a special lien against such proceeds and shall, as to such proceeds, be 35 prior to all other liens and claims except the claim of a mortgagee of 36 record named in such policy. Notice of the service of the certificate 37 of the special lien shall be given to the insured by certified mail. 38 4. The provisions of this chapter shall not be deemed or construed to 39 alter or impair the right of the city to acquire or enforce any lien 40 against property but shall be in addition to any other power provided by 41 law to acquire or enforce such right. 42 5. The fire insurance proceeds claims board is hereby established to 43 administer the provisions of subdivisions six through thirteen of this 44 section. The board shall consist of the first deputy mayor, who shall 45 be chairperson, the commissioner of buildings, the commissioner of hous- 46 ing preservation and development, and the commissioner of finance, each 47 of whom shall have the power to designate an alternate to represent him 48 or her at board meetings with all the rights and powers, including the 49 right to vote, reserved to all board members, provided that such desig- 50 nation shall be in writing to the chairperson. So far as practicable and 51 subject to the approval of the mayor, the services of all other city 52 departments and agencies shall be made available by their respective 53 heads to the board for the carrying out of its functions. Each member 54 shall serve without additional compensation except for expenses actually 55 incurred.S. 8474 1133 1 6. Whenever the proceeds of policy of fire insurance which will be or 2 has been paid to the city instead of an insured, all or part of such 3 proceeds may be paid or released to the insured if the insured satisfies 4 the board that the affected premises have been or will be repaired or 5 restored, that such repairs or restoration are in the public interest, 6 and the insured is issued and complies with a certificate of the board 7 pursuant to this chapter. To secure such payment or release of proceeds 8 the insured must notify the board within forty-five days after the mail- 9 ing to the insured of a notice of the service of the certificate of 10 special lien pursuant to subdivision three of this section, of the 11 intention to restore or repair the affected premises and must file with 12 the board a completed application with all required supporting documen- 13 tation pursuant to subdivision seven of this section within sixty days 14 thereafter, unless the board grants an extension for a stated period of 15 time. 16 7. The release or return to the insured of any amounts to which he or 17 she or it would otherwise be entitled to claim shall be subject to the 18 following conditions: 19 (a) Such release or return shall be subject to the repair or restora- 20 tion of the affected premises, in accordance with applicable building 21 laws, to the condition it was in prior to the time the lien of the city 22 arose, or to an improved condition. 23 (b) The insured shall file with the board an application in affidavit 24 form, with such supporting documentation as the board shall require, 25 containing the following: 26 (i) A complete description of the nature and extent of the damage to 27 the insured premises and of the condition of the premises prior to the 28 time the lien of the city arose; 29 (ii) A complete description of the nature of the repairs or restora- 30 tion to be undertaken and the cost thereof; 31 (iii) A statement as to the source of funds needed to complete such 32 repairs or restoration if the insurance proceeds are not sufficient 33 therefor; 34 (iv) The name and address of each contractor who will effect such 35 repairs or restoration; 36 (v) An estimated time schedule showing how long the repairs or resto- 37 ration, and each phase thereof, will take; and 38 (vi) Such other information as may be required by the board to enable 39 it to determine whether the repairs or restoration are in the public 40 interest and will be or have been timely and properly made. 41 (c) Upon a preliminary approval by the board of an application pursu- 42 ant to paragraph (b) of this subdivision, the board may issue a certif- 43 icate, to be signed by the chairperson or his or her designee; evidenc- 44 ing the right of release to the insured of amounts representing 45 insurance proceeds, upon such conditions as may be set forth therein. 46 The repairs or restoration required by the board shall be completed in 47 compliance with the terms and conditions of the certificate prior to the 48 release or return of any part of the insurance proceeds, provided howev- 49 er that the board may, upon the written request of the insured and in 50 its sole discretion, approve a prior release of such proceeds or a 51 portion thereof, in a lump sum or in installments, where the insured 52 certifies and demonstrates that such release is required to permit such 53 repairs or restoration to go forward. Any such insurance proceeds 54 released or returned prior to the completion of the repairs or restora- 55 tion required by the board may be paid directly to the contractor or 56 contractors responsible for making such repairs or restoration. SuchS. 8474 1134 1 payment shall, to the extent thereof, release the board from further 2 liability to the insured. 3 8. If the insured: (i) fails to notify the city of his or her or its 4 intention to repair or restore the affected premises as required in 5 subdivision six of this section, (ii) fails to file a completed applica- 6 tion pursuant to this chapter, or (iii) fails to obtain a certificate 7 from the board or comply therewith within the time set forth, the right 8 of the insured to assert a claim against the insurance proceeds, except 9 to the extent they exceed the amount of the lien, shall terminate. 10 9. Until such termination, any insurance proceeds received by the city 11 shall be deposited in a special fund and shall be retained therein. 12 Upon termination of the insured's right to claim against the proceeds, 13 the proceeds and any interest accrued thereon shall be applied to the 14 liens affecting the premises in a manner determined by the board and may 15 be transferred to the general fund. 16 10. There shall be established in the office of the commissioner a 17 fund for the deposit of fire insurance proceeds to be held and applied 18 in accordance with this chapter. Such funds shall not be held together 19 with the general tax levies in the general fund. 20 11. The lien or liens against the affected premises upon which the 21 special lien against proceeds is based shall continue in full force and 22 effect except to the extent that such lien or liens are or have been 23 paid. 24 12. The board may, pursuant to this chapter, release, compromise or 25 adjust the special lien upon insurance proceeds created by this chapter. 26 Any certificate issued by such board pursuant to this chapter shall be 27 for the purpose of preserving and evidencing the right of release of the 28 special lien created by this chapter, shall be subject solely to the 29 provisions of this chapter, and shall not be deemed to be a contract 30 subject to city regulation. Any repair or restoration performed in 31 anticipation of a release of insurance proceeds shall not be deemed to 32 be a public work or municipal project nor to have been done pursuant to 33 a municipal contract. 34 13. The board shall be empowered to promulgate rules and regulations 35 and to adopt approved forms to be used by applicants. 36 CHAPTER 40 37 CRIMES AND OTHER OFFENSES: SEIZURES AND FORFEITURES 38 § 11-4001 Definitions. (a) As used in this chapter, the term "person" 39 shall include, but shall not be limited to, an individual, corporation 40 (including a dissolved corporation), partnership, association, trust or 41 estate. 42 (b) As used in this chapter, the term "person" shall also include an 43 officer, employee or agent of a corporation; a member, employee or agent 44 of a partnership or association; an employee or agent of an individual 45 proprietorship; an employee or agent of an estate or trust; or a fiduci- 46 ary. 47 (c) As used in this chapter, the term "felony" and the term "misdemea- 48 nor" shall have the same meaning as they have in the penal law, and the 49 disposition of such offenses and the sentences imposed therefor shall be 50 as provided in such law, except: (1) notwithstanding the provisions of 51 paragraph a of subdivision one of section 80.00 and paragraph (a) of 52 subdivision one of section 80.10 of the penal law relating to the fine 53 for a felony, the court may impose a fine not to exceed the greater of 54 double the amount of the underpaid tax liability resulting from theS. 8474 1135 1 commission of the crime or fifty thousand dollars, or, in the case of a 2 corporation the fine may not exceed the greater of double the amount of 3 the underpaid tax liability resulting from the commission of the crime 4 or two hundred fifty thousand dollars, and (2) notwithstanding the 5 provisions of subdivision one of section 80.05 and paragraph (b) of 6 subdivision one of section 80.10 of the penal law relating to the fine 7 for a class A misdemeanor, the court may impose a fine not to exceed ten 8 thousand dollars, except that in the case of a corporation the fine may 9 not exceed twenty thousand dollars. 10 (d) As used in this chapter: 11 (1) "city" shall mean the city of Staten Island; and 12 (2) "state" shall mean the state of New York. 13 § 11-4002 Tax fraud acts. (a) As used in this chapter, "tax fraud act" 14 means willfully engaging in an act or acts or willfully causing another 15 to engage in an act or acts pursuant to which a person: 16 (1) fails to make, render, sign, certify, or file any return or report 17 required under the provisions of any designated chapter of this title or 18 any rule or regulation promulgated thereunder within the time required 19 by or under the provisions of any designated chapter of this title or 20 such rule or regulation; 21 (2) knowing that a return, report, statement or other document under 22 any designated chapter of this title contains any materially false or 23 fraudulent information, or omits any material information, files or 24 submits that return, report, statement or document with the city or the 25 state, or with any public office or public officer of the city or the 26 state; 27 (3) knowingly supplies or submits materially false or fraudulent 28 information in connection with any return, audit, investigation, or 29 proceeding or fails to supply information within the time required by or 30 under the provisions of any designated chapter of this title or any rule 31 or regulation promulgated under any designated chapter of this title; 32 (4) engages in any scheme to defraud the city or the state or a 33 government instrumentality of the city or of the state by false or frau- 34 dulent pretenses, representations or promises as to any material matter, 35 in connection with any tax imposed under any designated chapter of this 36 title or any matter under any designated chapter of this title; 37 (5) fails to remit any tax collected in the name of the city or the 38 state or on behalf of the city or the state when such collection is 39 required under any designated chapter of this title; 40 (6) fails to collect any tax required to be collected under chapter 41 twelve, thirteen, twenty-three-A, twenty-three-B or twenty-five of this 42 title; 43 (7) with intent to evade any tax imposed under any designated chapter 44 of this title, fails to pay such tax; or 45 (8) issues an exemption certificate, interdistributor sales certif- 46 icate, resale certificate, or any other document capable of evidencing a 47 claim that taxes imposed under a designated chapter of this title do not 48 apply to a transaction, which he or she does not believe to be true and 49 correct as to any material matter, which omits any material information, 50 or which is false, fraudulent, or counterfeit. 51 (b) For purposes of this section, the term "willfully" shall mean 52 acting with either intent to defraud, intent to evade the payment of 53 taxes or intent to avoid a requirement of this title, a lawful require- 54 ment of the commissioner or a known legal duty. 55 (c) For purposes of this chapter, the term "designated chapter" shall 56 mean chapter five, six, seven, eight, nine, eleven, twelve, thirteen,S. 8474 1136 1 fourteen, fifteen, twenty-one, twenty-two, twenty-three-A, twenty-four, 2 twenty-five or twenty-seven of this title. 3 § 11-4003 City criminal tax fraud in the fifth degree. A person 4 commits city criminal tax fraud in the fifth degree when he or she 5 commits a tax fraud act. City criminal tax fraud in the fifth degree is 6 a class A misdemeanor. 7 § 11-4004 City criminal tax fraud in the fourth degree. A person 8 commits city criminal tax fraud in the fourth degree when he or she 9 commits a tax fraud act or acts and, with the intent to evade any tax 10 due under any designated chapter of this title, or to defraud the city 11 or the state or any instrumentality of the city or the state, the person 12 pays the city or the state or any public office or public officer of the 13 city or the state or any instrumentality of the city or state, whether 14 by means of underpayment or receipt of refund or both, in a period of 15 not more than one year in excess of three thousand dollars less than the 16 tax liability that is due. City criminal tax fraud in the fourth degree 17 is a class E felony. 18 § 11-4005 City criminal tax fraud in the third degree. A person 19 commits city criminal tax fraud in the third degree when he or she 20 commits a tax fraud act or acts and, with the intent to evade any tax 21 due under any designated chapter of this title, or to defraud the city 22 or the state or any instrumentality of the city or the state, the person 23 pays the city or the state or any public office or public officer of the 24 city or the state or any instrumentality of the city or state, whether 25 by means of underpayment or receipt of refund or both, in a period of 26 not more than one year in excess of ten thousand dollars less than the 27 tax liability that is due. City criminal tax fraud in the third degree 28 is a class D felony. 29 § 11-4006 City criminal tax fraud in the second degree. A person 30 commits city criminal tax fraud in the second degree when he or she 31 commits a tax fraud act or acts and, with the intent to evade any tax 32 due under any designated chapter of this title, or to defraud the city 33 or the state or any instrumentality of the city or the state, the person 34 pays the city or the state or any public office or public officer of the 35 city or the state or any instrumentality of the city or state, whether 36 by means of underpayment or receipt of refund or both, in a period of 37 not more than one year in excess of fifty thousand dollars less than the 38 tax liability that is due. City criminal tax fraud in the second degree 39 is a class C felony. 40 § 11-4007 City criminal tax fraud in the first degree. A person 41 commits city criminal tax fraud in the first degree when he or she 42 commits a tax fraud act or acts and, with the intent to evade any tax 43 due under any designated chapter of this title, or to defraud the city 44 or the state or any instrumentality of the city or the state, the person 45 pays the city or the state or any public office or public officer of the 46 city or the state or any instrumentality of the city or state, whether 47 by means of underpayment or receipt of refund or both, in a period of 48 not more than one year in excess of one million dollars less than the 49 tax liability that is due. City criminal tax fraud in the first degree 50 is a class B felony. 51 § 11-4008 Aggregation. For purposes of this chapter, the payments due 52 and not paid under any designated chapter of this title pursuant to a 53 common scheme or plan or due and not paid, within one year, may be 54 charged in a single count, and the amount of underpaid tax liability 55 incurred, within one year, may be aggregated in a single count.S. 8474 1137 1 § 11-4009 Non-preemption; penal law anticipatory offenses and accesso- 2 rial liability apply. (a) Unless expressly stated otherwise, the penal- 3 ties provided in this chapter or under any other chapter of this title 4 shall not preclude prosecution for any offense under the penal law or 5 any other criminal statute. 6 (b) The offenses specified in title G of the penal law and the 7 provisions of article twenty of the penal law are applicable to all 8 offenses defined in this chapter. 9 § 11-4010 Failure to obey subpoenas; false testimony. (a) Any person 10 who, being duly subpoenaed, pursuant to chapter five, six, seven, eight, 11 nine, eleven, twelve, thirteen, fourteen, fifteen, twenty-one, twenty- 12 two, twenty-four, twenty-five or twenty-seven of this title or the 13 provisions of the civil practice law and rules, in connection with a 14 matter arising under any of such chapters, to attend as a witness or to 15 produce books, accounts, records, memoranda, documents or other papers, 16 (i) fails or refuses to attend without lawful excuse, (ii) refuses to be 17 sworn, (iii) refuses to answer any material and proper question, or (iv) 18 refuses, after reasonable notice, to produce books, papers and documents 19 in his or her possession or under his or her control which constitute 20 material and proper evidence shall be guilty of a misdemeanor. 21 (b) Any person who shall testify falsely in any material matter pend- 22 ing before the commissioner of finance with respect to any of the chap- 23 ters specified in subdivision (a) of this section shall be guilty of and 24 punishable for perjury. 25 § 11-4011 Failure to file bond. Any person willfully failing to file a 26 bond where such filing is required pursuant to section 11-1203, 11-1304 27 or 11-2505 of this title shall be guilty of a misdemeanor. (a) Any 28 person who willfully attempts in any manner to evade or defeat any tax 29 imposed by chapter thirteen of this title or payment thereof where such 30 tax is unpaid on ten thousand cigarettes or more or has previously been 31 convicted two or more times of a crime set forth in this chapter relat- 32 ing to cigarette taxes; shall be guilty of a class E felony. 33 (b) Any person, other than an agent so authorized by the commissioner 34 of finance, who possesses or transports for the purpose of sale any 35 unstamped or unlawfully stamped packages of cigarettes subject to tax 36 under chapter thirteen of this title, or who sells or offers for sale 37 unstamped or unlawfully stamped packages of cigarettes in violation of 38 the provisions of such chapter shall be guilty of a misdemeanor. Any 39 person who violates the provisions of this subdivision after having 40 previously been convicted of a violation of this subdivision within the 41 preceding five years shall be guilty of a class E felony. 42 (c) (1) Any person, other than an agent so authorized by the commis- 43 sioner of finance, who willfully possesses or transports for the purpose 44 of sale ten thousand or more cigarettes subject to the tax imposed by 45 chapter thirteen of this title in any unstamped or unlawfully stamped 46 packages or who willfully sells or offers for sale ten thousand or more 47 cigarettes in any unstamped or unlawfully stamped packages in violation 48 of such chapter shall be guilty of a class E felony. 49 (2) Any person, other than an agent appointed by the commissioner of 50 finance, who willfully possesses or transports for the purpose of sale 51 thirty thousand or more cigarettes subject to the tax imposed by chapter 52 thirteen of this title in any unstamped or unlawfully stamped packages 53 or who willfully sells or offers for sale thirty thousand or more ciga- 54 rettes in any unstamped or unlawfully stamped packages in violation of 55 such chapter shall be guilty of a class D felony.S. 8474 1138 1 (d) For the purposes of this section, the possession or transportation 2 within this city by any person, other than an agent, at any one time of 3 five thousand or more cigarettes in unstamped or unlawfully stamped 4 packages shall be presumptive evidence that such cigarettes are 5 possessed or transported for the purpose of sale and are subject to the 6 tax imposed by chapter thirteen of this title. With respect to such 7 possession or transportation, any provisions of chapter thirteen of this 8 title providing for a time period during which a use tax imposed by such 9 chapter may be paid on unstamped cigarettes or unlawfully or improperly 10 stamped cigarettes or during which such cigarettes may be returned to an 11 agent shall not apply. The possession within this city of more than four 12 hundred cigarettes in unstamped or unlawfully stamped packages by any 13 person other than an agent at any one time shall be presumptive evidence 14 that such cigarettes are subject to tax as provided by chapter thirteen 15 of this title. 16 (e) Nothing in this section shall apply to common or contract carriers 17 or warehouseman while engaged in lawfully transporting or storing 18 unstamped packages of cigarettes as merchandise, nor to any employee of 19 such carrier or warehouseman acting within the scope of his employment, 20 nor to public officers or employees in the performance of their official 21 duties requiring possession or control of unstamped or unlawfully 22 stamped packages of cigarettes, nor to temporary incidental possession 23 by employees or agents of persons lawfully entitled to possession, not 24 to persons whose possession is for the purpose of aiding police officers 25 in performing their duties. 26 (f) Any willful act or omission, other than those described in section 27 11-4002 of this chapter or subdivision (a), (b), (c), (d), (e) or (g) of 28 this section, by any person which constitutes a violation of any 29 provision of chapter thirteen of this title or subchapter one of chapter 30 two of title twenty of the code of the preceding municipality shall 31 constitute a misdemeanor. 32 (g) Any person who falsely or fraudulently makes, alters or counter- 33 feits any stamp prescribed by the commissioner of finance under the 34 provisions of chapter thirteen of this title, or causes or procures to 35 be falsely or fraudulently made, altered or counterfeited any such 36 stamp, or knowingly and willfully utters, purchases, passes or tenders 37 as true any such false, altered or counterfeited stamp, or knowingly and 38 willfully possess any cigarettes in packages bearing any such false, 39 altered or counterfeited stamp, and any person who knowingly and will- 40 fully makes, causes to be made, purchases or receives any device for 41 forging or counterfeiting any stamp, prescribed by the commissioner of 42 finance under the provisions of chapter thirteen of this title, or who 43 knowingly and willfully possesses any such device, shall be guilty of a 44 class E felony. For the purposes of this subdivision, the words "stamp 45 prescribed by the commissioner of finance" shall include a stamp, 46 impression or imprint made by a metering machine, the design of which 47 has been approved by the commissioner of finance and the state tax 48 commission. 49 § 11-4012.1 Tobacco products tax. (a) Attempt to evade or defeat tax. 50 Any person who willfully attempts in any manner to evade or defeat any 51 tax imposed by section 11-1302.1 of this chapter or the payment thereof 52 shall, in addition to any other penalties provided by law, be guilty of 53 a misdemeanor. 54 (b) Any willful act or omission with respect to the tax imposed by 55 section 11-1302.1 of this chapter, with the exception of those described 56 in subdivision (a) of this section, by any person which constitutes aS. 8474 1139 1 violation of any provision of chapter thirteen of this title or chapter 2 two of title twenty of the code of the preceding municipality shall 3 constitute a misdemeanor. 4 § 11-4014 Tax on commercial motor vehicles and motor vehicles for 5 transportation of passengers. (a) Any person who counterfeits or forges, 6 or causes or procures to be counterfeited or forged, or aids or assists 7 in counterfeiting or forging, by any way, art, or means, any stamp, 8 indicia of payment or indicia that no tax is payable authorized by chap- 9 ter eight of this title, or who knowingly acquires, possesses, disposes 10 of or uses such a counterfeited or forged stamp, indicia of payment or 11 indicia that no tax is payable, or who transfers a stamp, indicia of 12 payment or indicia that no tax is payable where such a transfer is not 13 authorized by such chapter shall be guilty of a misdemeanor. 14 (b) The owner or driver of any motor vehicle subject to the tax 15 imposed by chapter eight who, upon demand, shall fail to exhibit the 16 stamp or other indicia of payment of the tax to the commissioner of 17 finance, his duly authorized agent or employee, or any police officer of 18 this city or state, as required by subdivision a of section 11-809 of 19 this chapter, shall be guilty of a misdemeanor. 20 § 11-4015 Tax on owners of motor vehicles. (a) Any person who counter- 21 feits or forges, or causes or procures to be counterfeited or forged, or 22 aids or assists in counterfeiting or forging, by any way, art, or means, 23 any receipt or other document evidencing payment or exemption from the 24 tax imposed by chapter twenty-two of this title, or who knowingly 25 acquires, possesses, disposes of or uses such a counterfeited or forged 26 receipt or other document, shall be guilty of a misdemeanor. 27 (b) Any person who uses, operates or parks or permits the use, opera- 28 tion or parking upon any public highway or street of a motor vehicle 29 owned by him or her or under his or her control for which the tax 30 imposed by chapter twenty-two of this title has not been paid in accord- 31 ance with the provisions of such chapter and the regulations prescribed 32 thereunder shall be guilty of a misdemeanor. For the purpose of this 33 subdivision any person using, operating or parking a motor vehicle shall 34 be presumed to be doing so with the permission of the owner of such 35 motor vehicle. 36 (c) To the extent that any other section of this chapter is applicable 37 to the tax imposed by chapter twenty-two of this title, any reference in 38 such section to the commissioner of finance shall be deemed a reference 39 to the commissioner of motor vehicles or to the commissioner of finance 40 if designated as his or her agent. 41 § 11-4016 Hotel room occupancy tax. (a) Any person who willfully fails 42 to file a registration certificate as required pursuant to the 43 provisions of chapter twenty-five of this title and such data in 44 connection therewith as the commissioner of finance by regulation or 45 otherwise may require, or willfully fails to display or surrender a 46 certificate of authority as required by chapter twenty-five of this 47 title, or willfully assigns or transfers such certificate of authority, 48 shall be guilty of a misdemeanor, provided, however, that the provisions 49 of this subdivision shall not apply to a failure to surrender a certif- 50 icate of authority which is required to be surrendered where business 51 never commenced. 52 (b) Any person who willfully fails to charge separately the tax 53 imposed under chapter twenty-five of this title or willfully fails to 54 state such tax separately on any bill, statement, memorandum or receipt 55 issued or employed by such person upon which the tax is required to be 56 stated separately as provided in such chapter, or who shall refer orS. 8474 1140 1 cause reference to be made to this tax in a form or manner other than 2 required by such chapter, shall be guilty of a misdemeanor. 3 § 11-4017 Violation of secrecy provisions. Any person who violates the 4 provisions of subdivision a of section 11-1214, subdivision (a) of 5 section 11-2415, subdivision a of section 11-2115, subdivision a of 6 section 11-1516, subdivision a of section 11-818, subdivision a of 7 section 11-716, subdivision a of section 11-2215, subdivision a of 8 section 11-1116, subdivision one of section 11-688, subdivision one of 9 section 11-538, subdivision a of section 11-2516, or subdivision a of 10 section 11-1414 of this title shall be guilty of a misdemeanor. 11 § 11-4018 Other offenses. (a) Any person who willfully fails to keep 12 or retain any records required to be kept or retained by chapter seven, 13 twelve, fourteen, twenty-one, twenty-two, twenty-four or twenty-seven of 14 this title shall be guilty of a misdemeanor. 15 (b) Any person willfully simulating, altering, defacing, destroying or 16 removing any evidence of the filing of a return or the payment of a tax 17 provided for in chapter twenty-one of this title shall be guilty of a 18 misdemeanor. 19 (c) Any person failing to file a certificate of registration or infor- 20 mation registration certificate as required by chapter eight of this 21 title shall be guilty of a misdemeanor. 22 (d) Any person refusing access to personnel authorized by the commis- 23 sioner of finance to inspect any vault or any premises concerning which 24 a return or information return may be required under chapter twenty-sev- 25 en of this title shall be guilty of a misdemeanor. 26 § 11-4019 Jurisdiction. For purposes of the taxes imposed by chapter 27 five or six of this title, any prosecution under this chapter may be 28 conducted in any county where the person against whom a violation or 29 violations of any of the provisions of this chapter are charged resides 30 or has a place of business, or from which such person received any 31 income, or in any county in which any such violation is committed. 32 (a) Notwithstanding any other provision of law, the corporation coun- 33 sel shall have concurrent jurisdiction with any district attorney in the 34 prosecution of any offenses under this chapter. 35 (b) Notwithstanding any other provision of law, the attorney general 36 shall have concurrent jurisdiction with the corporation counsel and with 37 any district attorney in the prosecution of any offenses under this 38 chapter relating to the tax imposed by chapter thirteen of this title, 39 as well as any offenses arising out of such prosecution. 40 § 11-4020 Disposition of fines. All fines levied under this chapter 41 shall be paid to the commissioner of finance and deposited in the gener- 42 al fund of the city. 43 § 11-4021 Seizure and forfeiture of cigarettes. (a) Whenever a police 44 officer designated in section 1.20 of the criminal procedure law or a 45 peace officer designated in subdivision five of section 2.10 of such 46 law, acting pursuant to his or her special duties, shall discover any 47 cigarettes subject to any tax provided by chapter thirteen of this 48 title, and upon which the tax has not been paid or the stamps not 49 affixed as required by such chapter, they are hereby authorized and 50 empowered forthwith to seize and take possession of such cigarettes, 51 together with any vending machine or receptacle in which they are held 52 for sale. Such cigarettes, vending machine or receptacle seized by a 53 police officer or such peace officer shall be turned over to the commis- 54 sioner of finance. 55 (b) The seized cigarettes and any vending machine or receptacle seized 56 therewith, but not the money contained in such vending machine or recep-S. 8474 1141 1 tacle shall thereupon be forfeited to the city, unless the person from 2 whom the seizure is made, or the owner of such seized cigarettes, vend- 3 ing machine or receptacle, or any other person having an interest in 4 such property, shall within ten days of such seizure, apply to the 5 commissioner of finance for a hearing to determine the propriety of the 6 seizure, or unless the commissioner of finance shall on his or her own 7 motion release the seized cigarettes, vending machine or receptacle. 8 After such hearing the commissioner of finance shall give notice of his 9 or her decision to the petitioner. The decision of the commissioner 10 shall be reviewable for error, illegality, unconstitutionality or any 11 other reason whatsoever by a proceeding under article seventy-eight of 12 the civil practice law and rules if application therefor is made to the 13 supreme court within thirty days after the giving of the notice of such 14 decision. Such proceeding shall not be instituted unless there shall 15 first be filed with the commissioner of finance an undertaking, issued 16 by a surety company authorized to transact business in New York state 17 and approved by the superintendent of insurance of New York state as to 18 solvency and responsibility, in such amount as a justice of the supreme 19 court shall approve, to the effect that if such proceeding be dismissed, 20 or the seizure confirmed, the petitioner will pay all costs and charges 21 which may accrue in the prosecution of the proceeding. 22 (c) The commissioner of finance may, within a reasonable time after 23 the forfeiture to the city of such vending machines or receptacles, upon 24 publication of a notice to such effect for at least five successive 25 days, in a newspaper published or circulated in the city, sell such 26 forfeited vending machines or receptacles at public sale and pay the 27 proceeds into the treasury of the city to the credit of the general 28 fund. Such seized vending machines or receptacles may be sold prior to 29 forfeiture if the owner of the seized property consents to the sale. 30 Notwithstanding any other provision of this section, the commissioner of 31 finance may enter into an agreement with the state tax commission to 32 provide for the disposition between the city and state of the proceeds 33 from any such sale. The commissioner of finance may also transfer any 34 seized cigarettes to the state for destruction. All cigarettes forfeited 35 to the state shall be destroyed or used for law enforcement purposes, 36 except that cigarettes that violate, or are suspected of violating, 37 federal trademark laws or import laws shall not be used for law enforce- 38 ment purposes. If the commissioner determines the cigarettes may not be 39 used for law enforcement purposes, the commissioner of finance must, 40 within a reasonable time after the forfeiture to the city of such ciga- 41 rettes, upon publication of a notice to such effect for at least five 42 successive days, prior to destruction, in a newspaper published or 43 circulated in the city, destroy such forfeited cigarettes. Such commis- 44 sioner may, prior to any destruction of cigarettes, permit the true 45 holder of the trademark rights in the cigarettes to inspect such 46 forfeited cigarettes in order to assist in any investigation regarding 47 such cigarettes. 48 (d) In the alternative, the commissioner of finance, on reasonable 49 notice by mail or otherwise, may permit the person from whom said ciga- 50 rettes were seized to redeem the said cigarettes, and any vending 51 machine or receptacle seized therewith, or may permit the owner of any 52 such cigarettes, vending machine or receptacle to redeem the same, by 53 the payment of the tax due, plus a penalty of fifty percent thereof, 54 plus interest on the amount of tax due for each month or fraction there- 55 of after such tax became due, determined without regard to any extension 56 of time for filing or paying, at the rate applicable under subdivision dS. 8474 1142 1 of section 11-1317 of this title and the costs incurred in such proceed- 2 ing, which total payment shall not be less than five dollars; provided, 3 however, that such seizure and sale or redemption shall not be deemed to 4 relieve any person from fine or imprisonment provided for in this chap- 5 ter for violation of any provisions of this chapter or chapter thirteen 6 of this title. 7 (e) In the alternative, the commissioner of finance may dispose of any 8 cigarettes seized pursuant to this section, except those that violate, 9 or are suspected of violating, federal trademark laws or import laws, by 10 transferring them to the department of correction for sale to or use by 11 incarcerated individuals in such institutions. 12 § 11-4022 Filing of documents. For purposes of the prosecution of 13 offenses under the provisions of this title, reports, returns, state- 14 ments, other documents or other information required to be filed with or 15 delivered to the commissioner of finance shall include such items which 16 under the provisions of this title are required to be recorded or filed 17 with, served upon or delivered to another person, including, but not 18 limited to, a recording officer of any county within the state, county 19 clerk, any other governmental agency or entity, or other entity in its 20 capacity as an agent of the commissioner of finance. 21 § 11-4023 Authority to seal premises. (a) If any person has been 22 finally determined to have engaged in the acts described in subdivision 23 (b) of this section, the commissioner of finance shall be authorized to 24 order: 25 (1) the sealing of any premises operated by such person where such 26 acts occurred; and 27 (2) the removal, sealing or making inoperable of any devices, items or 28 goods used in connection with any of such acts. 29 (b) The following acts shall serve as the basis for a sealing order 30 pursuant to this section: 31 (1) the violation of subdivision a or b of section 11-1303 of this 32 title or section 17-703 or 20-202 of the code of the preceding munici- 33 pality on at least two occasions within a three-year period; or 34 (2) the violation of any provision of chapter thirteen of this title 35 or any of sections 17-703, 17-703.2, 17-704, 17-705, subdivision a or b 36 of section 17-706, 17-715 or 20-202 of the code of the preceding munici- 37 pality on at least three occasions within a three-year period; or 38 (3) the violation of any provision of section 10-203 of the code of 39 the preceding municipality on at least two occasions within a three-year 40 period. 41 (c) Orders of the commissioner to seal premises. (1) Orders of the 42 commissioner issued pursuant to this section shall be posted at the 43 premises at which the acts described in subdivision (b) of this section 44 have occurred. 45 (2) Ten days after the date of such posting, and upon the written 46 directive of the commissioner, police officers designated in section 47 1.20 of the criminal procedure law and peace officers employed by the 48 department of finance, including but not limited to the sheriff, under- 49 sheriff and deputy sheriffs of the city of New York designated as peace 50 officers in subdivision two of section 2.10 of the criminal procedure 51 law, are authorized to act upon and enforce such orders. 52 (3) Any devices, items or goods removed pursuant to this section, 53 shall be stored in a garage, pound or other place of safety and the 54 owner or other person lawfully entitled to the possession of such 55 devices, items or goods may be charged with reasonable costs for removalS. 8474 1143 1 and storage payable prior to the release of such devices, items or goods 2 to such owner or such other person. 3 (4) The owner or other person lawfully entitled to reclaim the 4 devices, items or goods described in paragraph three of this subdivision 5 shall reclaim such devices, items or goods. If such owner or such other 6 person does not reclaim such devices, items or goods within ninety days 7 of their removal, such devices, items or goods shall be subject to 8 forfeiture upon notice and judicial determination in accordance with 9 provisions of law. Upon forfeiture the department shall, upon a public 10 notice of at least five days, sell such forfeited devices, items or 11 goods at public sale. The net proceeds of such sale, after deduction of 12 the lawful expenses incurred, shall be paid into the general fund of the 13 city. 14 (d) Unsealing of premises. The commissioner shall order that any prem- 15 ises which are sealed pursuant to this section shall be unsealed and 16 that any devices, items or goods removed, sealed or otherwise made inop- 17 erable pursuant to this section shall be released, unsealed or made 18 operable upon: 19 (1) payment of all outstanding cigarette taxes and civil penalties and 20 all reasonable costs for removal and storage; and 21 (2) the expiration of a period of time from the date of enforcement of 22 the order to be determined by the commissioner not to exceed sixty days. 23 (e) Any person aggrieved by an order issued pursuant to this section 24 may seek judicial review of such order through a proceeding pursuant to 25 article seventy-eight of the civil practice law and rules. 26 (f) Removal of seal. Any person who removes the seal on any premises 27 or removes the seal on or makes operable any devices, items or goods 28 sealed or otherwise made inoperable in accordance with an order of the 29 commissioner shall be guilty of a misdemeanor. 30 § 11-4024 Seizure and forfeiture of taxed and lawfully stamped ciga- 31 rettes sold or possessed by unlicensed retail or wholesale dealers, 32 flavored tobacco products, flavored electronic cigarettes and flavored 33 e-liquid. (a) Whenever a police officer designated in section 1.20 of 34 the criminal procedure law or a peace officer employed by the department 35 of finance, including but not limited to the sheriff, undersheriff or 36 deputy sheriffs of the city of New York designated as peace officers in 37 subdivision two of section 2.10 of the criminal procedure law, shall 38 discover (1) any cigarettes subject to any tax provided by chapter thir- 39 teen of this title, and upon which the tax has been paid and the stamps 40 affixed as required by such chapter, but such cigarettes are sold, 41 offered for sale or possessed by a person in violation of section 42 11-1303 of this code or section 17-703 or 20-202 of the code of the 43 preceding municipality, or (2) any flavored tobacco product that is 44 sold, offered for sale or possessed with intent to sell in violation of 45 section 17-715 of the code of the preceding municipality, he or she is 46 hereby authorized and empowered forthwith to seize and take possession 47 of such cigarettes or flavored tobacco product, together with any vend- 48 ing machine or receptacle in which such cigarettes or flavored tobacco 49 product are held for sale. Such cigarettes or flavored tobacco product, 50 vending machine or receptacle seized by such police officer or such 51 peace officer shall be turned over to the commissioner of finance. 52 (b) The seized cigarettes or flavored tobacco product and any vending 53 machine or receptacle seized therewith, but not the money contained in 54 such vending machine or receptacle, shall thereupon be forfeited to the 55 city, unless the person from whom the seizure is made, or the owner of 56 such seized cigarettes, flavored tobacco product, vending machine orS. 8474 1144 1 receptacle, or any other person having an interest in such property, 2 shall within ten days of such seizure, apply to the commissioner of 3 finance for a hearing to determine the propriety of the seizure, or 4 unless the commissioner of finance shall on his or her own motion 5 release the seized cigarettes, flavored tobacco product, vending machine 6 or receptacle. After such hearing the commissioner of finance shall give 7 notice of his or her decision to the petitioner. The decision of the 8 commissioner shall be reviewable for error, illegality, unconstitution- 9 ality or any other reason whatsoever by a proceeding under article 10 seventy-eight of the civil practice law and rules. 11 (c) The commissioner of finance may, within a reasonable time after 12 the forfeiture to the city of such vending machine or receptacle under 13 this section, upon publication of a notice to such effect for at least 14 five successive days, in a newspaper published or circulated in the 15 city, sell such forfeited vending machine or receptacle at public sale 16 and pay the proceeds into the general fund of the city. Such seized 17 vending machine or receptacle may be sold prior to forfeiture if the 18 owner of the seized property consents to the sale. Cigarettes or 19 flavored tobacco product forfeited to the city under this section shall 20 be destroyed or used for law enforcement purposes, except that ciga- 21 rettes that violate, or are suspected of violating, federal trademark 22 laws or import laws shall not be used for law enforcement purposes. If 23 the commissioner determines the cigarettes forfeited under this section 24 may not be used for law enforcement purposes, the commissioner of 25 finance must, within a reasonable time after the forfeiture to the city 26 of such cigarettes, upon publication of a notice to such effect for at 27 least five successive days, prior to destruction, in a newspaper 28 published or circulated in the city, destroy such forfeited cigarettes. 29 (d) In the alternative, the commissioner of finance, on reasonable 30 notice by mail or otherwise, may permit the person from whom a seizure 31 of cigarettes or flavored tobacco product under this section was made, 32 to redeem any vending machine or receptacle seized with such cigarettes 33 or flavored tobacco product, or may permit the owner of any such vending 34 machine or receptacle to redeem the same, upon the payment of any civil 35 penalty imposed pursuant to chapter seven of title seventeen or subchap- 36 ter one of chapter two of title twenty of the code of the preceding 37 municipality and the costs incurred in such proceeding. 38 (e) For purposes of this section, a flavored tobacco product means a 39 flavored tobacco product, flavored electronic cigarette or flavored 40 e-liquid. 41 § 11-4025 Seizure and forfeiture of untaxed tobacco products. (a) 42 Whenever a police officer designated in section 1.20 of the criminal 43 procedure law or a peace officer employed by the department of finance, 44 including but not limited to the sheriff, undersheriff or deputy sher- 45 iffs of the city designated as peace officers in subdivision two of 46 section 2.10 of the criminal procedure law, discovers any tobacco 47 products subject to any tax provided by chapter thirteen of this title, 48 and upon which the tax has not been paid, he or she is hereby authorized 49 and empowered forthwith to seize and take possession of such tobacco 50 products, together with any vending machine or receptacle in which such 51 tobacco products are held for sale. Such tobacco products, vending 52 machine or receptacle seized by such police officer or such peace offi- 53 cer shall be turned over to the commissioner of finance. 54 (b) The seized tobacco products and any vending machine or receptacle 55 seized therewith, but not the money contained in such vending machine or 56 receptacle, shall thereupon be forfeited to the city, unless the personS. 8474 1145 1 from whom the seizure is made, or the owner of such seized tobacco 2 products, vending machine or receptacle, or any other person having an 3 interest in such property, shall within ten days of such seizure, apply 4 to the commissioner of finance for a hearing to determine the propriety 5 of the seizure, or unless the commissioner of finance shall on his or 6 her own motion release the seized tobacco products, vending machine or 7 receptacle. After such hearing the commissioner of finance shall give 8 notice of his or her decision to the petitioner. The decision of the 9 commissioner shall be reviewable for error, illegality, unconstitution- 10 ality or any other reason whatsoever by a proceeding under article 11 seventy-eight of the civil practice law and rules. 12 (c) The commissioner of finance may, within a reasonable time after 13 the forfeiture to the city of such vending machine or receptacle under 14 this section, upon publication of a notice to such effect for at least 15 five successive days, in a newspaper published or circulated in the 16 city, sell such forfeited vending machine or receptacle at public sale 17 and pay the proceeds into the general fund of the city. Such seized 18 vending machine or receptacle may be sold prior to forfeiture if the 19 owner of the seized property consents to the sale. Tobacco products 20 forfeited to the city under this section shall be destroyed or used for 21 law enforcement purposes, except that tobacco products that violate, or 22 are suspected of violating, federal trademark laws or import laws shall 23 not be used for law enforcement purposes. If the commissioner determines 24 the tobacco products forfeited under this section may not be used for 25 law enforcement purposes, the commissioner of finance must, within a 26 reasonable time after the forfeiture to the city of such cigarettes, 27 upon publication of a notice to such effect for at least five successive 28 days, prior to destruction, in a newspaper published or circulated in 29 the city, destroy such forfeited tobacco products. 30 (d) In the alternative, the commissioner of finance, on reasonable 31 notice by mail or otherwise, may permit the person from whom a seizure 32 of tobacco products under this section was made, to redeem any vending 33 machine or receptacle seized with such tobacco products, or may permit 34 the owner of any such vending machine or receptacle to redeem the same, 35 upon the payment of any civil penalty imposed pursuant to chapter seven 36 of title seventeen or subchapter one of chapter two of title twenty of 37 the code of the preceding municipality and the costs incurred in such 38 proceeding. 39 § 11-4026 Seizure and forfeiture of taxed tobacco products sold or 40 possessed by unlicensed retail or wholesale dealers other than flavored 41 tobacco products subject to seizure under section 11-4024 of this chap- 42 ter. 43 (a) Whenever a police officer designated in section 1.20 of the crimi- 44 nal procedure law or a peace officer employed by the department of 45 finance, including but not limited to the sheriff, undersheriff or depu- 46 ty sheriffs of the city designated as peace officers in subdivision two 47 of section 2.10 of the criminal procedure law, discovers any tobacco 48 products, other than flavored tobacco products, subject to any tax 49 provided by chapter thirteen of this title, and upon which the tax has 50 been paid, but such tobacco products are sold, offered for sale or 51 possessed by a person in violation of section 11-1303 of this code or 52 section 17-703 or 20-202 of the code of the preceding municipality, he 53 or she is hereby authorized and empowered forthwith to seize and take 54 possession of such tobacco products, together with any vending machine 55 or receptacle in which such tobacco products are held for sale. Such 56 tobacco products, vending machine or receptacle seized by such policeS. 8474 1146 1 officer or such peace officer shall be turned over to the commissioner 2 of finance. 3 (b) The seized tobacco products and any vending machine or receptacle 4 seized therewith, but not the money contained in such vending machine or 5 receptacle, shall thereupon be forfeited to the city, unless the person 6 from whom the seizure is made, or the owner of such seized tobacco 7 products, vending machine or receptacle, or any other person having an 8 interest in such property, shall within ten days of such seizure, apply 9 to the commissioner of finance for a hearing to determine the propriety 10 of the seizure, or unless the commissioner of finance shall on his or 11 her own motion release the seized tobacco products, vending machine or 12 receptacle. After such hearing the commissioner of finance shall give 13 notice of his or her decision to the petitioner. The decision of the 14 commissioner shall be reviewable for error, illegality, unconstitution- 15 ality or any other reason whatsoever by a proceeding under article 16 seventy-eight of the civil practice law and rules. 17 (c) The commissioner of finance may, within a reasonable time after 18 the forfeiture to the city of such vending machine or receptacle under 19 this section, upon publication of a notice to such effect for at least 20 five successive days, in a newspaper published or circulated in the 21 city, sell such forfeited vending machine or receptacle at public sale 22 and pay the proceeds into the general fund of the city. Such seized 23 vending machine or receptacle may be sold prior to forfeiture if the 24 owner of the seized property consents to the sale. Tobacco products 25 forfeited to the city under this section shall be destroyed or used for 26 law enforcement purposes, except that tobacco products that violate, or 27 are suspected of violating, federal trademark laws or import laws shall 28 not be used for law enforcement purposes. If the commissioner determines 29 the tobacco products forfeited under this section may not be used for 30 law enforcement purposes, the commissioner of finance must, within a 31 reasonable time after the forfeiture to the city of such tobacco 32 products, upon publication of a notice to such effect for at least five 33 successive days, prior to destruction, in a newspaper published or 34 circulated in the city, destroy such forfeited tobacco products. 35 (d) In the alternative, the commissioner of finance, on reasonable 36 notice by mail or otherwise, may permit the person from whom a seizure 37 of tobacco products under this section was made, to redeem any vending 38 machine or receptacle seized with such tobacco products, or may permit 39 the owner of any such vending machine or receptacle to redeem the same, 40 upon the payment of any civil penalty imposed pursuant to chapter seven 41 of title seventeen or subchapter one of chapter two of title twenty of 42 the code of the preceding municipality and the costs incurred in such 43 proceeding. 44 Title 12 - Personnel and Labor 45 § 12-101 Office of payroll administration. There shall be within the 46 comptroller's office an office of payroll administration which shall: 47 1. Support the implementation of a computerized payroll management 48 system; 49 2. Maintain the integrity and accuracy of the payroll system; 50 3. Develop uniform procedures for payroll processing and development; 51 4. Distribute and account for payroll and administer payroll 52 deductions; and 53 5. Render services to, and receive information and assistance from, 54 public corporations upon such terms and conditions as may be agreed to 55 by the office and each such corporation.S. 8474 1147 1 All city agencies shall cooperate with the office as may be necessary 2 and proper to ensure efficient operation of the payroll management 3 system. 4 § 12-102 Executive director; staff. The comptroller shall appoint an 5 executive director of payroll administration. Within the appropriations 6 therefor, the office shall employ such other officers and employees as 7 may be required to perform its duties. 8 Title 13 - Reserved 9 Title 14 - Police 10 § 14-101 Definitions. As used in this title, the following terms have 11 the following meanings: 12 1. Civil enforcement. The term "civil enforcement" means the issuance 13 of a civil summons. 14 2. Civil summons. The term "civil summons" means a civil notice of 15 violation. 16 3. Commissioner. The term "commissioner" means the commissioner of the 17 department. 18 4. Criminal enforcement. The term "criminal enforcement" means the 19 charging of a misdemeanor or violation. 20 5. Criminal summons. The term "criminal summons" means an appearance 21 ticket issued by the department pursuant to article one hundred fifty of 22 the criminal procedure law that is an accusatory instrument pursuant to 23 article one hundred of the criminal procedural law, and returnable to 24 the criminal court. 25 6. Department. The term "department" means the police department of 26 the city of New York. 27 7. Desk appearance ticket. The term "desk appearance ticket" means an 28 appearance ticket issued by the department pursuant to article one 29 hundred fifty of the criminal procedure law that is not an accusatory 30 instrument pursuant to article one hundred of the criminal procedure 31 law. 32 8. Specified unlawful act. The term "specified unlawful act" means an 33 act that violates any of the following provisions: subdivision b of 34 section 10-125 of the code of the preceding municipality, subdivision 35 one of section 16-118 of the code of the preceding municipality, subdi- 36 vision six of section 16-118 of the code of the preceding municipality 37 with respect to the act of public urination, subdivision a of section 38 24-218 of the code of the preceding municipality, section 18-146 of the 39 code of the preceding municipality, section 18-147 of the code of the 40 preceding municipality, and rules and regulations of the department of 41 parks and recreation described in paragraph nine of subdivision a of 42 section five hundred thirty-three of the charter of the preceding muni- 43 cipality. 44 § 14-102 Composition of force. Until otherwise provided by the mayor, 45 upon the recommendation of the commissioner, the police force in the 46 police department, shall consist of the following ranks of members, to 47 wit: 48 1. Captains of police, not exceeding in number one to each fifty of 49 the total number of police officers, in addition to the number detailed 50 to act as inspectors; 51 2. Lieutenants of police, not exceeding four in number to each fifty 52 of the total number of police officers;S. 8474 1148 1 3. Sergeants not exceeding six in number to each fifty police offi- 2 cers; 3 4. Surgeons of police, not exceeding forty in number, one of whom 4 shall be chief surgeon; 5 5. A veterinarian; 6 6. Police officers to the number of seven thousand eight hundred thir- 7 ty-nine. 8 § 14-103 Detective bureau. a. The commissioner shall organize and 9 maintain a bureau for detective purposes to be known as the detective 10 bureau and shall, from time to time, detail to service in said bureau as 11 many members of the force as the commissioner may deem necessary and may 12 at any time revoke any such detail. 13 b. Of the members of the force so detailed the commissioner may desig- 14 nate: (1) police officers not exceeding two hundred eighty in number, 15 as detectives of the first grade, who while performing duty in such 16 bureau and while so designated as detectives of the first grade, shall 17 be paid the same salary as lieutenants; and (2) a certain number of 18 police officers, as detectives of the second grade, who while performing 19 duty in such bureau and while so designated as detectives of the second 20 grade, shall be paid the same salary as sergeants; and a certain number 21 of police officers as detectives of the third grade, who while perform- 22 ing duty in such bureau and while so designated as detectives of the 23 third grade shall be paid such salary as may be determined by the mayor. 24 Any person who has received permanent appointment as a police officer 25 and is temporarily assigned to perform the duties of a detective shall, 26 whenever such assignment exceeds eighteen months in duration, be 27 appointed as a detective and receive the compensation ordinarily paid to 28 a detective performing such duties. 29 c. The commissioner may designate lieutenants as commanders of detec- 30 tive squads, and sergeants as supervisors of detective squads, who while 31 performing duty in such bureau and while so designated as commanders of 32 detective squads or supervisors of detective squads shall be paid such 33 salary as may be determined by the mayor. 34 d. Any member of the force detailed to such bureau while so detailed 35 shall retain his or her rank in the force and shall be eligible for 36 promotion the same as if serving in the uniformed force, and the time 37 during which he or she serves in such bureau shall count for all 38 purposes as if served in his or her rank or grade in the uniformed 39 force. 40 e. The commissioner may at his or her pleasure revoke any designation 41 made pursuant to the provision of this section after complying with the 42 provisions of section seventy-five of the civil service law. 43 § 14-104 Juvenile bureau. a. There shall be a bureau in the department 44 organized and maintained for the prevention of crime and delinquency 45 among minors and for the performance of such other duties as the commis- 46 sioner may assign thereto. 47 b. Any member of the force assigned to such juvenile bureau shall 48 retain his or her rank and pay in the force and shall be eligible for 49 promotion as if serving in the uniformed force and the time served in 50 such bureau shall count for all purposes as if served in his or her rank 51 or grade in the uniformed force of the department. 52 § 14-105 Bureau of taxis, limousines and liveries. The purpose of the 53 bureau of taxis, limousines and liveries shall be the continuance, 54 further development and improvement of taxi, limousine and livery 55 service in the city of Staten Island.S. 8474 1149 1 It shall be the further purpose of the bureau, consonant with the 2 promotion and protection of the public comfort and convenience to adopt 3 and establish an overall public transportation policy governing taxi, 4 coach, limousine and wheelchair accessible van services as it relates to 5 the overall public transportation network of the city; to require the 6 filing of rates, standards of service, standards of insurance and mini- 7 mum coverage; standards for driver safety; standards for equipment safe- 8 ty and design; standards for noise and air pollution control; and to set 9 standards and criteria for the licensing of vehicles, drivers and chauf- 10 feurs, owners and operators engaged in such services. 11 § 14-106 Jurisdiction, powers and duties of the bureau. 1. The juris- 12 diction, powers and duties of the bureau shall include the regulation 13 and supervision of the business and industry of transportation of 14 persons by licensed vehicles for hire in the city. 15 2. Such regulations and supervision shall extend to: 16 (a) The supervision of rates to be charged and collected. 17 (b) The regulation and supervision of standards and conditions of 18 service. 19 (c) The revocation and suspension of licenses for vehicles, other than 20 licenses issued pursuant to state law, provided, however, that taxicab 21 licenses represented by medallions heretofore issued shall in all 22 respects remain valid in accordance with their terms and transferable 23 according to law. 24 3. The bureau or an administrative tribunal which may be established 25 by the police commissioner to adjudicate charges of violations of 26 provisions of the administrative code, rules and regulations promulgated 27 thereunder and public complaints of discrimination or overcharging, 28 shall have the power to enforce its decisions and orders imposing civil 29 penalties, not to exceed ten thousand dollars for each respondent, for 30 violations relating to unlicensed vehicles for hire and unlicensed driv- 31 ers of vehicles for hire and for violations relating to the operation of 32 commuter van services without authorization and the operation of unli- 33 censed commuter vans and unlicensed drivers of commuter vans pursuant to 34 provisions of the administrative code. 35 Before a judgment based upon a default may be so entered the bureau or 36 administrative tribunal shall have first notified the respondent by 37 first class mail in such form as the bureau may direct (a) of the 38 default and order and the penalty imposed; (b) that a judgment will be 39 entered in the civil court of the city; and (c) that entry of such judg- 40 ment may be avoided by requesting a stay of default for good cause and 41 either requesting a hearing or entering a plea pursuant to the rules of 42 the bureau or administrative tribunal within thirty days of the mailing 43 of such notice. 44 Title 15 - Fire Prevention and Control 45 § 15-101 Definitions; bureaus, divisions and offices. 1. For the 46 purposes of this title the following terms shall have the following 47 meanings: 48 (a) "Commissioner" shall mean the fire commissioner. 49 (b) "Department" shall mean the fire department. 50 2. In addition to such other bureaus, divisions and offices as the 51 commissioner may organize pursuant to section eleven hundred two of the 52 charter of the preceding municipality, there shall be in the department:S. 8474 1150 1 (a) A fire bureau in the charge of the chief of the department which 2 shall have charge of the extinguishment of fires and the necessary and 3 incidental protection of life and property in connection therewith. 4 In such bureau there shall be a bureau of fire prevention and such 5 bureau shall be in the charge of a member of the uniformed force of the 6 department, of a rank above that of captain, to be designated by the 7 commissioner. Such bureau shall perform the duties and exercise the 8 powers of the commissioner in relation to (1) combustibles, chemicals, 9 explosives, flammables, or other dangerous substances, articles, 10 compounds or mixtures, (2) the prevention of fires or danger to life or 11 property therefrom, excluding provisions relating to structural condi- 12 tions and (3) protection against fire and panic, obstruction of aisles, 13 passageways and means of egress, standees, fire protection and fire 14 extinguishing appliances, and fire prevention in licensed places of 15 assembly. In the performance of their official duties, the uniformed and 16 civilian members of the bureau of fire prevention shall have the powers 17 and perform the duties of peace officers, but their power to make 18 arrests and serve process in criminal actions shall be restricted to 19 cases arising under laws relating to (1) the manufacture, storage, sale, 20 transportation or use of combustibles, chemicals, explosives, flammables 21 or other dangerous substances, articles, compounds or mixtures and the 22 control of fire hazards, (2) the prevention of fires or danger to life 23 or property therefrom, excluding provisions relating to structural 24 conditions and (3) fire perils. 25 (b) A chief and deputy chief fire marshal, appointed by the commis- 26 sioner, who shall be members of the department. 27 3. Notwithstanding any inconsistent provision of any general, special 28 or local law, or rule or regulation, a chief of the department shall not 29 serve in any other capacity to the department during his or her term of 30 office of chief. Any person violating the provisions of this section 31 shall be deemed to have vacated the office of chief so held. 32 § 15-102 Commissioner. The head of the fire department shall be the 33 commissioner. The mayor may designate the chief of the fire department 34 to serve as commissioner, and shall exercise the powers and duties of 35 commissioner and shall receive the salary of the commissioner. While 36 serving as commissioner, the chief shall forfeit none of his or her 37 pension rights and privileges as chief or his or her civil service 38 status. 39 The commissioner may appoint deputies, one of whom may perform all the 40 duties and exercise all the powers of the commissioner except appoint- 41 ment or promotion, detail or dismissal of any member of the uniformed 42 force when authorized by instrument in writing to be filed in the 43 offices of the mayor and the comptroller. 44 The commissioner shall be the treasurer of the department and shall 45 file in the office of the comptroller a bond for the faithful perform- 46 ance of his or her duties as treasurer. 47 § 15-103 Powers. The commissioner shall have sole and exclusive power 48 and perform all duties for the government, discipline, management, main- 49 tenance and direction of the fire department and the premises and prop- 50 erty, however the commissioner shall provide written notice with 51 supporting documentation at least forty-five days prior to the permanent 52 closing of any firehouse or permanent removal or relocation of any fire 53 fighting unit to the council members whose districts are served by such 54 facility and to the clerk of the council. The term "permanent" shall 55 mean a time period in excess of six months.S. 8474 1151 1 The department shall have the sole and exclusive power and authority 2 to extinguish fires at any place within the jurisdiction of the city and 3 still have power and authority to extinguish fires upon any vessel in 4 the port of New York or upon any dock, wharf, pier, warehouse or other 5 structure bordering or adjacent to such port. 6 The commissioner shall have sole and exclusive jurisdiction over the 7 approval of the installation of all containers for combustibles, chemi- 8 cals, explosives, inflammable or other dangerous substances, except 9 storage tanks for oilburning equipment. 10 The commissioner shall have the sole and exclusive power to designate 11 and fix the location of all fire alarm telegraph, signal and alarm 12 stations in the city and to control the same for the purpose of the 13 department; except the commissioner shall give forty-five days notice to 14 council members whose districts are served by such equipment and to the 15 city clerk in the case of removal. 16 § 15-104 Enforcement of fire laws. 1. The commissioner shall have the 17 power and it shall be his or her duty to enforce all laws and the rules 18 and regulations with respect to: 19 (a) the manufacture, storage, sale, transportation or use of combusti- 20 bles, chemicals or dangerous substances; 21 (b) investigation of the cause and origin of fires and suppression of 22 arson; and 23 (c) the prevention of fires or danger to life or property. 24 2. The commissioner shall have the power to cause any building, struc- 25 ture, tunnel, vessel or premises to be inspected for fire hazards by an 26 officer or employee of the department; and to inspect and test any auto- 27 matic or other fire alarm system or fire extinguishing equipment. 28 3. The commissioner shall have the power and it shall be his or her 29 duty to order in writing the remedying of any condition in violation of 30 any regulation which he or she is empowered to enforce. The commissioner 31 may take proceedings for the enforcement of any order of the commission- 32 er which is not complied with within the time fixed in the order for 33 such compliance to be enforced. Every order, requirement, decision or 34 determination of the commissioner shall be in writing. 35 4. The commissioner and his or her deputies and such other officers or 36 employees of the department as are authorized by the commissioner may 37 without fee or hindrance enter and inspect all buildings, premises, 38 vessels, structures and all underground passages of every sort in the 39 city or in the port of New York for compliance with provisions of law or 40 rules and regulations enforced by the department. Any refusal to permit 41 such entry or inspection shall be triable by a judge and punishable by 42 not more than thirty days imprisonment or by a fine of not more than 43 fifty dollars, or both. 44 § 15-105 Other officer. No member of the uniformed force of the fire 45 department shall accept any additional place of public trust or civil 46 emolument. 47 The chief of the fire department shall not serve in any other capacity 48 to the department during his or her term of office or shall be deemed to 49 have vacated the office of chief. 50 Title 16 - Sanitation 51 Chapter 1 52 GENERAL 53 § 16-101 Definitions. When used in this title the following terms 54 shall have the following meanings:S. 8474 1152 1 1. "Department" shall mean the department of sanitation. 2 2. "Commissioner" shall mean the commissioner of sanitation. 3 3. "Street" includes street, avenue, road, alley, lane, highway, 4 boulevard, concourse, driveway, culvert and crosswalk, and every class 5 of road, square and place, and all parkways and through vehicular park 6 drives except a road within any park or a wharf, pier, bulkhead, or slip 7 by law committed to the custody, and control of the department of ports 8 and terminals. 9 § 16-102 Commissioner. The head of the sanitation department shall be 10 the commissioner. 11 § 16-103 Powers and duties of the commissioner. 1. The commissioner 12 shall have charge and control of and be responsible for all those func- 13 tions and operations of the city relating to the cleanliness of the 14 streets and the disposal of waste, including, without limitation, the 15 following: 16 (a) the sweeping, cleaning, sprinkling, flushing, washing and sanding 17 of the streets; 18 (b) the removal and disposition of ashes, street sweepings, garbage, 19 refuse, rubbish and waste; 20 (c) the removal of ice and snow from the streets; 21 (d) the removal of encumbrances from the streets and the storage or 22 disposal of such encumbrances, except that the mayor may provide by 23 regulation that the removal and storage of household effects or other 24 chattels shall be a responsibility of the department of general services 25 and contracting; 26 (e) plans, design, construction, operation, repair, maintenance, 27 enlargement and regulation of the use of incinerators, landfills and 28 other plants, facilities and equipment; and 29 (f) recovery and reuse of recyclable material. 30 2. The commissioner may adopt regulations specifying the kind of 31 ashes, garbage, refuse, rubbish or other material or substance that will 32 be collected by the city, the time when it will be collected and the 33 place at which it shall be deposited for collection. 34 3. The regulations shall be enforced by order of the commissioner. 35 Such order shall be addressed to the owner or owners, lessees or occu- 36 pants of the building, structure, enclosure, vessel, place or premises 37 affected thereby. It shall not be necessary to designate such owner or 38 owners, lessees or occupants by name, however the premises shall be 39 designated in the address so that it may be readily identified. 40 § 16-104 Duties and obligations of property owner. The owner of any 41 property shall keep any vacant lot or lots in a clean and sanitary 42 manner and free of debris and other litter at the owner's expense. In 43 the event that an owner of property fails to comply with these 44 provisions, or rules and regulations, the department may provide for 45 cleaning of a vacant lot at the expense of the property owner. 46 Chapter 2 47 SOLID WASTE RECYCLING 48 § 16-301 Short title. Sections 16-301 through 16-324 of this title 49 shall be known and may be cited as the "City of Staten Island Recycling 50 Law". 51 § 16-302 Declaration of policy. It is hereby declared to be the public 52 policy of the city to reduce environmental pollution and dangers to 53 health, to decrease the demand for scarce landfill space, to minimize 54 the size and cost of the proposed resource recovery program, and toS. 8474 1153 1 encourage the conservation of valuable natural resources and energy. It 2 is the policy of the city to promote the recovery of materials from the 3 city of Staten Island solid waste stream for the purpose of recycling 4 such materials and returning them to the economy. This title shall be 5 liberally construed in order to effectuate the purposes set forth in 6 this section. 7 § 16-303 Definitions. When used in this title: 8 1. "Architectural paint" means interior and exterior architectural 9 coatings, including paints and stains purchased for commercial or resi- 10 dential use, but does not include architectural coatings purchased for 11 industrial use or for use in the manufacture of products. 12 2. "Organic waste" means any material found in the waste stream that 13 can be broken down into, or otherwise become part of, usable compost, 14 such as food scraps, soiled paper, and plant trimmings. As determined by 15 the commissioner, such term may also include disposable plastic food 16 service ware and bags that meet the ASTM International standard specifi- 17 cations for compostable plastics, but shall not include liquids and 18 textiles. 19 3. "Department-managed solid waste" means all solid waste that the 20 department and its contractors collect, all solid waste that the depart- 21 ment receives for free disposal, all solid waste collected for recycling 22 or reuse through special events or programs promoted, operated or funded 23 by the department, and all solid waste diverted from collection by the 24 department that is accepted through non-department infrastructure for 25 recycling or reuse and counted towards the department's recycling goals 26 as set forth in subdivision a of section 16-305 of this chapter. 27 4. "Household" means a single dwelling or a residential unit within a 28 multiple dwelling, hotel, motel, campsite, ranger station, public or 29 private recreation area, or other residence. 30 5. "Household and institutional compostable waste" means any composta- 31 ble waste, excluding yard waste, in or otherwise destined for any waste 32 stream collected by the department. 33 6. "Household hazardous waste" means: 34 a. any household waste that is ignitable, corrosive, reactive or toxic 35 and that, but for its point of generation, would be a hazardous waste 36 under part three hundred seventy-one of title six of the New York code, 37 rules and regulations, as may be amended from time to time, and includes 38 all pesticides, as defined in article thirty-three of the environmental 39 conservation law, and hazardous waste, as defined in section 27-0901 of 40 the environmental conservation law, as such laws may be amended from 41 time to time; and 42 b. any other household waste that the commissioner determines, by 43 rule, to be hazardous and require special handling. 44 7. "Post-collection separation" means the dividing of solid waste into 45 some or all of its component parts after the point of collection. 46 8. "Post-consumer material" means those products generated by a busi- 47 ness or a consumer which have served their intended end uses, and which 48 have been separated or diverted from solid waste for the purposes of 49 collection, recycling and disposition. 50 9. "Private carter" means any person required to be licensed or 51 permitted pursuant to chapter one of title sixteen-A of the code of the 52 preceding municipality. 53 10. "Publicly accessible textile drop-off bin" means any enclosed 54 container that allows for members of the public to deposit textiles into 55 such container for reuse or recycling in accordance with the textileS. 8474 1154 1 reuse and recycling program established by section 16-310.1 of this 2 chapter. 3 11. "Recyclable materials" means solid waste that may be separated, 4 collected, processed, marketed and returned to the economy in the form 5 of raw paper, plastic, yard waste and any other solid waste required to 6 be recycled or composted pursuant to this chapter, solid waste collected 7 for recycling or reuse through special events or programs promoted, 8 operated or funded by the department, and solid waste accepted through 9 non-department infrastructure for recycling or reuse. 10 12. "Recycled" or "recycling" means any process by which recyclable 11 materials are separated, collected, processed, marketed and returned to 12 the economy in the form of raw materials or products. 13 13. "Recycling center" means any facility operated to facilitate the 14 separation, collection, processing or marketing of recyclable materials 15 for reuse or sale. 16 14. "Recycling district" means any borough or smaller geographic area 17 the commissioner deems appropriate for the purpose of implementing this 18 chapter. 19 15. "Rigid plastic container" means any plastic container having a 20 semi-flexible or inflexible finite shape or form that is capable of 21 maintaining its shape while holding other products and is designed to 22 hold food, beverages, and consumer household products, including, but 23 not limited to, the following types of containers: plastic bottles, 24 plastic jugs, plastic tubs, plastic trays, plastic cups, plastic buck- 25 ets, plastic crates and plastic flower pots, and any other rigid plastic 26 material that the commissioner may designate by rule, but not including 27 containers made of polystyrene foam. 28 16. "Solid waste" means all putrescible and non-putrescible materials 29 or substances, except as described in paragraph c of this subdivision, 30 that are discarded or rejected as being spent, useless, worthless or in 31 excess to the owners at the time of such discard or rejection, including 32 but not limited to, garbage, refuse, industrial and commercial waste, 33 rubbish, tires, ashes, contained gaseous material, incinerator residue, 34 construction and demolition debris, discarded automobiles and offal. 35 a. A material is discarded if it is abandoned by being: 36 i. disposed of; 37 ii. burned or incinerated, including being burned as a fuel for the 38 purpose of recovering useable energy; or 39 iii. accumulated, stored, or physically, chemically or biologically 40 treated, other than burned or incinerated, instead of or before being 41 disposed of. 42 b. A material is disposed of if it is discharged, deposited, injected, 43 dumped, spilled, leaked, or placed into or on any land or water so that 44 such material or any constituent thereof may enter the environment or be 45 emitted into the air or discharged into groundwater or surface water. 46 c. The following are not solid waste for the purpose of this chapter: 47 i. domestic sewage; 48 ii. any mixture of domestic sewage and other wastes that passes 49 through a sewer system to a publicly owned treatment works for treat- 50 ment, except (A) any material that is introduced into such system in 51 order to avoid the provisions of this chapter or the state regulations 52 promulgated to regulate solid waste management facilities pursuant to 6 53 NYCRR part 360 or (B) food waste; 54 iii. industrial wastewater discharges that are actual point source 55 discharges subject to permits under article seventeen of the environ- 56 mental conservation law; industrial wastewaters while they are beingS. 8474 1155 1 collected, stored, or treated before discharge and sludges that are 2 generated by industrial wastewater treatment are solid wastes; 3 iv. irrigation return flows; 4 v. radioactive materials that are source, special nuclear, or by-pro- 5 duct material as defined by the Atomic Energy Act of 1954, as amended, 6 42 U.S.C. § 2011 et seq.; 7 vi. materials subject to in-situ mining techniques which are not 8 removed from the ground as part of the extraction process; 9 vii. hazardous waste as defined in section 27-0901 of the environ- 10 mental conservation law; and 11 viii. regulated medical waste or other medical waste as described in 12 section 16-120.1 of this title. 13 17. "Source separation" means the dividing of solid waste into some or 14 all of its component parts at the point of generation. 15 18. "Yard waste" means leaves, grass clippings, garden debris, and 16 vegetative residue that is recognizable as part of a plant or vegetable, 17 small or chipped branches, and similar material. 18 Chapter 3 19 CITYWIDE RECYCLING PROGRAM 20 § 16-305 Recycling of department-managed solid waste. 1. a. The 21 following recycling percentage goals are established for the recycling 22 of department-managed solid waste: 23 i. by July first, two thousand eleven, sixteen percent of department- 24 managed solid waste; 25 ii. by July first, two thousand thirteen, nineteen percent of depart- 26 ment-managed solid waste; 27 iii. by July first, two thousand fourteen, twenty-one percent of 28 department-managed solid waste; 29 iv. by July first, two thousand sixteen, twenty-four percent of 30 department-managed solid waste; 31 v. by July first, two thousand eighteen, twenty-seven percent of 32 department-managed solid waste; 33 vi. by July first, two thousand nineteen, thirty percent of depart- 34 ment-managed solid waste; and 35 vii. by July first, two thousand twenty, thirty-three percent of 36 department-managed solid waste. 37 b. In addition, the following recycling goals are established for 38 curbside and containerized waste collected by the department: 39 i. By July first, two thousand eleven, sixteen percent of curbside and 40 containerized waste collected by the department; 41 ii. By July first, two thousand thirteen, eighteen percent of curbside 42 and containerized waste collected by the department; 43 iii. By July first, two thousand fourteen, nineteen percent of curb- 44 side and containerized waste collected by the department; 45 iv. By July first, two thousand sixteen, twenty-one percent of curb- 46 side and containerized waste collected by the department; 47 v. By July first, two thousand eighteen, twenty-three percent of curb- 48 side and containerized waste collected by the department; 49 vi. By July first, two thousand nineteen, twenty-four percent of curb- 50 side and containerized waste collected by the department; and 51 vii. By July first, two thousand twenty, twenty-five percent of curb- 52 side and containerized waste collected by the department. 53 2. The commissioner shall adopt and implement rules designating at 54 least six recyclable materials, including plastics to the extentS. 8474 1156 1 required in subdivision three of this section and yard waste to the 2 extent required in section 16-308 of this chapter and organic waste to 3 the extent required in section 16-308.1 of this chapter, contained in 4 department-managed solid waste and requiring households to source sepa- 5 rate such designated materials. 6 3. a. Prior to commencing delivery of department-managed recyclable 7 materials to the designated recycling processing facility at the South 8 Brooklyn Marine Terminal, the commissioner shall designate as recyclable 9 materials, and require the source separation of, rigid plastic contain- 10 ers. 11 b. If the commissioner, in his or her discretion, determines that the 12 cost to the city of recycling rigid plastic containers required to be 13 designated as recyclable materials pursuant to paragraph a of this 14 subdivision is not reasonable in comparison with the cost of recycling 15 only metal, glass and plastic and have been designated as recyclable 16 materials, the commissioner shall within ten business days notify and 17 provide documentation to the council of the factors relied upon to make 18 such determination and shall not be required to designate any such rigid 19 plastic containers as recyclable materials. 20 c. If the commissioner determines that the cost to the city of recycl- 21 ing rigid plastic containers is not reasonable in comparison with the 22 cost of recycling only metal, glass and plastic that have been desig- 23 nated as recyclable materials, the commissioner shall annually reevalu- 24 ate the cost to the city of designating such rigid plastic containers as 25 recyclable materials, and shall annually make a new determination as to 26 whether the cost of designating such containers as recyclable materials 27 is reasonable in comparison with the cost of recycling only metal, glass 28 and plastic that have been designated as recyclable materials and shall 29 report such evaluations to the council. The department shall not 30 promulgate rules designating rigid plastic containers as recyclable 31 materials, and need not conduct outreach or education relating thereto 32 if, pursuant to paragraph b of this subdivision, the commissioner deter- 33 mines that the cost to the city of recycling rigid plastic containers is 34 not reasonable in comparison with the cost of recycling only metal, 35 glass and plastic that have been designated as recyclable materials. 36 d. Immediately following the promulgation of rules designating rigid 37 plastic containers as recyclable materials, the department shall under- 38 take outreach and education, in cooperation with any other agency or 39 entity designated for that purpose by the commissioner, to inform resi- 40 dents of such new designation and to provide instruction on compliance 41 with the requirements of this subdivision and the rules promulgated 42 pursuant thereto. 43 4. The commissioner shall adopt and implement rules establishing 44 procedures requiring the placement of the designated materials at the 45 curbside, in specialized containers, or in any other manner the commis- 46 sioner determines, to facilitate the collection of such materials in a 47 manner that enables them to be recycled. Under such rules, no person 48 shall be liable for incorrectly placing a non-designated rigid plastic 49 container in the recycling stream. 50 5. Where the department provides solid waste collection services to a 51 building containing at least four and no more than eight dwelling units, 52 the commissioner shall adopt and implement rules requiring the owner, 53 net lessee or person in charge of such building to: 54 a. provide for the residents, where practicable, a designated area 55 and, where appropriate, containers in which to store the source sepa-S. 8474 1157 1 rated or other designated recyclable materials to be collected by the 2 department; and 3 b. inform all residents of the requirements of this chapter and the 4 rules promulgated pursuant thereto by, at a minimum, posting 5 instructions on source separation in or near the designated recycling 6 area and making available to each resident at the inception of a lease, 7 where applicable, a department-issued guide to recycling, which shall be 8 made available to the owner, net lessee or person in charge of such 9 building by the department pursuant to section 16-315 of this chapter in 10 print form or on the department's website, or in an alternative guide 11 containing similar information to the guide required by section 16-315 12 of this chapter. 13 If reasonably accessible space for the storage of source separated or 14 other designated recyclable materials is not available in such building, 15 and such space is available behind the building's property line, such 16 space behind the property line may be designated as the area for the 17 storage of source separated or other designated recyclable materials. If 18 no such space is available, the owner, net lessee or person in charge of 19 such building shall post instructions on recycling and source separation 20 in or near a designated area that is visible to all residents in the 21 building. 22 With respect to solid waste generated by households in the aforesaid 23 buildings, the obligations of an owner, net lessee or person in charge 24 of such building under this chapter shall be limited to those set forth 25 in this subdivision and subdivisions four and seven of this section or 26 rules promulgated pursuant to such subdivisions. 27 6. Where the department provides solid waste collection services to a 28 building containing nine or more dwelling units, the commissioner shall 29 adopt and implement rules requiring the owner, net lessee or person in 30 charge of such building to: 31 a. provide for the residents a designated area and, where appropriate, 32 containers in which to store the source separated or other designated 33 recyclable materials to be collected by the department; 34 b. inform all residents of the requirements of this chapter and the 35 rules promulgated pursuant thereto by, at a minimum, posting 36 instructions on source separation in or near the designated recycling 37 area, and making available to each resident at the inception of a lease, 38 a department-issued guide to recycling, which shall be made available to 39 the owner, net lessee or person in charge of such building by the 40 department pursuant to section 16-315 of this chapter in print form or 41 on the department's website, or in an alternative guide containing simi- 42 lar information to the guide required by section 16-315 of this chapter; 43 and 44 c. remove non-designated materials from the containers of designated 45 source separated recyclable materials before such containers are placed 46 at the curbside for collection and ensure that the designated materials 47 are placed at the curbside in the manner prescribed by the department. 48 With respect to solid waste generated by households in the aforesaid 49 buildings, the obligations of an owner, net lessee or person in charge 50 of such building under this chapter shall be limited to those set forth 51 in this subdivision and subdivisions four and seven of this section or 52 rules promulgated pursuant to such subdivisions. 53 7. The commissioner shall adopt and implement rules for any building 54 containing four or more dwelling units in which the amount of designated 55 materials placed out for collection is significantly less than what can 56 reasonably be expected from such building. These rules shall requireS. 8474 1158 1 residential generators, including tenants, owners, net lessees or 2 persons in charge of such building to use transparent bags or such other 3 means of disposal the commissioner deems appropriate to dispose of solid 4 waste other than the designated recyclable materials. Upon request of 5 the owner, net lessee or person in charge of such building, and if the 6 commissioner determines that such owner, net lessee or person in charge 7 of such building has complied with this subdivision, subdivision four of 8 this section and, as applicable, subdivision five or subdivision six of 9 this section or rules promulgated pursuant to such subdivisions and that 10 the amount of designated materials placed out for collection remains 11 significantly less than what can reasonably be expected from such build- 12 ing, the department may develop a schedule to conduct random inspections 13 to facilitate compliance with the provisions of this chapter by tenants 14 of such building, provided that lawful inspections may occur at reason- 15 able times without notice to ensure compliance by the tenants, owner, 16 net lessee or person in charge of such building. 17 8. a. In calculating the extent to which the department has met the 18 recycling percentage goals set forth in paragraph a of subdivision one 19 of this section, the department shall include in its calculations all 20 curbside and institutional recycling it collects, including materials 21 collected from households, schools, not-for-profit institutions and city 22 agencies, and all recyclable materials collected as part of the public 23 space recycling program pursuant to section 16-310 of this chapter, and 24 may include yard waste collected pursuant to section 16-308 of this 25 chapter and any other material collected for composting pursuant to this 26 chapter, Christmas trees collected pursuant to section 16-309 of this 27 chapter, clothing and textiles donated or collected pursuant to section 28 16-310.1 of this chapter, household hazardous waste diverted pursuant to 29 section 16-310.3 of this chapter, rechargeable batteries collected 30 pursuant to chapter four of title eleven of the code of the preceding 31 municipality, beverage containers returned within the city pursuant to 32 title ten of article twenty-seven of the environmental conservation law, 33 electronic waste collected within the city or otherwise diverted from 34 the city's waste stream, including such waste collected or diverted 35 pursuant to title twenty-six of article twenty-seven of the environ- 36 mental conservation law, and plastic bags collected within the city or 37 otherwise diverted from the city's waste stream, including such plastic 38 bags collected or diverted pursuant to title twenty-seven of article 39 twenty-seven of the environmental conservation law. Only recyclable 40 materials specifically enumerated in this paragraph shall be counted for 41 purposes of calculating the extent to which the department has met the 42 recycling percentage goals set forth in paragraph a of subdivision one 43 of this section. 44 b. In calculating the extent to which the department has met the recy- 45 cling percentage goals set forth in paragraph b of subdivision one of 46 this section, the department shall include in its calculations all curb- 47 side and institutional recycling it collects, including materials 48 collected from households, schools, not-for-profit institutions and city 49 agencies, and all recyclable materials collected as part of the public 50 space recycling program pursuant to section 16-310 of this chapter. 51 c. In calculating the extent to which the department has met the recy- 52 cling percentage goals set forth in paragraphs a and b of subdivision 53 one of this section, the department shall not include recycling of aban- 54 doned vehicles or recycling from lot cleaning operations, asphalt and 55 mill tailings, construction and demolition debris or other commercial 56 recycling programs. The commissioner shall not designate any such mate-S. 8474 1159 1 rials as recyclable materials under this section for purposes of calcu- 2 lating the extent to which the department has met such recycling 3 percentage goals. 4 d. In calculating the percent of the department-managed solid waste 5 stream recycled in connection with the percentage goals set forth in 6 paragraph a of subdivision one of this section, the department shall 7 ensure that any quantity of material counted as recycled must be fully 8 included in the calculation of the city's total department-managed solid 9 waste stream. 10 e. All data used to make calculations pursuant to paragraphs a and b 11 of this subdivision shall be made available on the department's website 12 in raw form disaggregated by material type and using a non-proprietary 13 format on a monthly basis, or, if such data is not generated by the 14 department, within one month from the date that the department receives 15 reports of such information. 16 9. In the event that the department does not meet any recycling 17 percentage goal set forth in paragraphs a or b of subdivision one of 18 this section by the dates specified therein, the department shall, with- 19 in sixty days of the date for meeting such goal, expand recycling 20 outreach and education and shall take such other appropriate measures 21 including, but not limited to, directing such outreach and education to 22 the neighborhoods and community districts in which recycling diversion 23 rates fall below the median city recycling diversion rate and consulting 24 with the council to explore additional measures to meet the recycling 25 percentage goals set forth in such subdivision. In expanding recycling 26 outreach and education, the department may work with other agencies or 27 entities designated for that purpose by the commissioner. 28 10. In the event that the department is unable to achieve two consec- 29 utive recycling percentage goals set forth in paragraphs a and b of 30 subdivision one of this section by the dates specified therein, in addi- 31 tion to the requirements of subdivision nine of this section, the 32 commissioner shall retain a special advisor, who shall be selected by 33 the mayor and the speaker, provided that the commissioner need not 34 retain such special advisor more than once every three years. Within one 35 hundred twenty days of such retention, such adviser shall submit a 36 report to the mayor and council recommending additional measures that 37 may be taken by the city following such report in order to meet such 38 recycling percentage goals. 39 § 16-305.1 Weekly collection of designated recyclable materials. 1. 40 Weekly collection of designated recyclable materials shall be maintained 41 in all local service delivery districts. 42 2. Effective July first, two thousand nine, and notwithstanding any 43 inconsistent provision of this chapter, the department shall be author- 44 ized, by written order of the commissioner, to implement and maintain 45 alternate week collection of designated recyclable materials in all 46 local service delivery districts, provided that the department may, by 47 written order of the commissioner, provide for more frequent collection 48 of designated recyclable materials in designated local service delivery 49 districts. Any such written order of the commissioner implementing 50 alternate week collection shall expire no later than March thirty-first, 51 two thousand ten. 52 3. For purposes of this section "designated recyclable materials" 53 shall mean solid waste that has been designated by the commissioner as 54 recyclable pursuant to section 16-305, section 16-307, or section 55 16-308.1 of this chapter.S. 8474 1160 1 4. Nothing in this section shall be construed to require collection of 2 designated recyclable materials in such parts of the city or during such 3 times of the year that such materials are not otherwise collected. 4 § 16-306 Private carter-collected waste. 1. The commissioner shall 5 adopt and implement rules designating recyclable materials that consti- 6 tute in the aggregate at least one-half of all solid waste collected by 7 private carters, and additional materials if the commissioner determines 8 that economic markets exist for them. Pursuant to subdivision two of 9 this section, such rules shall require generators of private carter-col- 10 lected waste to source separate some or all of the designated materials 11 and to arrange for lawful collection for recycling, reuse or sale for 12 reuse by private carters or persons other than private carters of such 13 source separated materials. With regard to designated materials that are 14 not required by such rules to be source separated, generators of private 15 carter-collected waste may source separate these designated materials 16 and, in any event, shall arrange for their lawful collection for recycl- 17 ing, reuse or sale for reuse by private carters or persons other than 18 private carters. If a generator of private carter-collected waste has 19 source separated the designated materials in accordance with the rules 20 and arranged for the lawful collection for recycling, reuse or sale for 21 reuse by private carters or persons other than private carters of such 22 source separated materials and, with regard to designated materials that 23 are not required by such rules to be source separated, arranged for 24 lawful collection for recycling, reuse or sale for reuse by private 25 carters or persons other than private carters, such arrangement shall 26 constitute an affirmative defense to any proceeding brought against the 27 generator pursuant to section 16-324 of this title. 28 2. (a) The rules promulgated pursuant to subdivision one of this 29 section shall require that generators of waste collected by businesses 30 required to be licensed pursuant to section 16-505 of the code of the 31 preceding municipality source separate the designated materials in such 32 manner and to such extent as the commissioner determines to be necessary 33 to minimize contamination and maximize the marketability of such materi- 34 als. However, in promulgating such rules the commissioner shall not 35 require source separation of a material unless the commissioner has 36 determined that an economic market exists for such material. For the 37 purpose of this section, the term "economic market" refers to instances 38 in which the full avoided costs of proper collection, transportation and 39 disposal of source separated materials are equal to or greater than the 40 cost of collection, transportation and sale of said materials less the 41 amount received from the sale of said materials. 42 (b) (i) Any designated carter that collects source separated desig- 43 nated materials in a commercial waste zone pursuant to section 16-1002 44 of the code of the preceding municipality shall provide for the 45 collection of, and ensure the continued separation of, designated mate- 46 rials that have been source separated, provide for the separation of all 47 other designated materials, and provide for recycling of all the desig- 48 nated materials in accordance with the rules of the department and the 49 terms of any agreement entered into pursuant to section 16-1002 of the 50 code of the preceding municipality under which such designated carter is 51 providing such service. 52 (ii) Any person registered by the business integrity commission to 53 remove, collect, or dispose of trade waste generated in the course of 54 operation of such person's business pursuant to subdivision b of section 55 16-505 of the code of the preceding municipality shall provide for the 56 collection of, and ensure the continued separation of, designated mate-S. 8474 1161 1 rials that have been source separated, provide for the separation of all 2 other designated materials, and provide for recycling of all the desig- 3 nated materials in accordance with the rules promulgated by the business 4 integrity commission pursuant to this section and subject to the penal- 5 ties provided in subdivision a of section 16-515 of the code of the 6 preceding municipality. 7 (c) The commissioner and the chair of the business integrity commis- 8 sion shall have the authority to issue notices of violation for any 9 violation of any rules promulgated pursuant to this section and such 10 notices of violation shall be returnable in a civil action brought in 11 the name of the commissioner or the chair of the business integrity 12 commission before the environmental control board which shall impose a 13 penalty not to exceed ten thousand dollars for each such violation. 14 3. The department shall complete a study of commercial recycling in 15 the city no later than January first, two thousand twelve. Such commer- 16 cial recycling study shall focus on the putrescible portion of the 17 commercial waste stream, and shall include, but need not be limited to, 18 the following: (a) an integration of all data on commercial waste in the 19 city collected and transported through transfer stations and recycling 20 processors; (b) an assessment of current practices, operations and 21 compliance with applicable local laws and rules, consistent with the 22 scope of study set forth in the two thousand six Solid Waste Management 23 Plan; (c) estimates of waste composition and recycling diversion rates 24 from research conducted with respect to other jurisdictions; (d) a 25 computer-based model to measure the amount and composition of waste 26 generated by different commercial sectors; (e) recommendations of meth- 27 ods to encourage waste prevention, reuse, recycling and composting for 28 each of the commercial sectors studied, including any recommended chang- 29 es to applicable law; and (f) an assessment of the efficiency of the 30 transportation of commercial waste within the commercial system by, 31 among other things, mapping and monitoring routes along which commercial 32 waste and recycling trucks travel, including long-haul carriers within 33 and outside the city. Following completion of the commercial recycling 34 study, the commissioner shall determine whether any additional studies 35 are necessary in order to improve commercial recycling practices in the 36 city and shall promptly report such determination to the mayor and the 37 council. 38 4. Notwithstanding any other provision of law, nothing in this section 39 shall be construed to (a) supersede, amend or eliminate any obligation 40 of an awardee or designated carter, as such terms are defined in section 41 16-1000 of the code of the preceding municipality, to meet the require- 42 ments set forth in any applicable agreement entered into pursuant to 43 section 16-1002 of the code of the preceding municipality, or (b) other- 44 wise amend or supersede any term of such agreement. 45 § 16-306.1 Organic waste. 1. When used in this section or section 46 16-324 of this chapter: 47 a. "Arena" means an establishment or facility that hosts live sporting 48 or entertainment events. 49 b. "Capacity" means the combined capacity of facilities that are capa- 50 ble of accepting and processing, consistent with the terms of this 51 section and exceeding a nominal amount, organic waste expected to be 52 generated by and collected from designated covered establishments. 53 c. "Catering establishment" means any room, place or space in the 54 city, which is used, leased or hired out for the business of serving 55 food or beverages for a particular function, occasion or event, to whichS. 8474 1162 1 the public is not invited or admitted and wherein music or entertainment 2 is permitted. 3 d. "Covered establishment" means: 4 (i) any location at which a food manufacturer has a floor area of at 5 least twenty-five thousand square feet; 6 (ii) any location at which a food wholesaler has a floor area of at 7 least twenty thousand square feet; 8 (iii) any location at which a retail food store has a floor area of at 9 least ten thousand square feet, or any retail food store that is part of 10 a chain of three or more retail food stores that have a combined floor 11 area space of at least ten thousand square feet and that operate under 12 common ownership or control and receive waste collection from the same 13 private carter; 14 (iv) arenas or stadiums having a seating capacity of at least fifteen 15 thousand persons; 16 (v) any food service establishment that is part of a chain of two or 17 more food service establishments that have a combined floor area of at 18 least eight thousand square feet and that: (1) operate under common 19 ownership or control; (2) are individually franchised outlets of a 20 parent business; or (3) do business under the same corporate name, 21 provided that the requirements of subparagraph (i) of paragraph a of 22 subdivision three of this section shall not apply to any such food 23 service establishment when the building or premises in which such food 24 service establishment is located is in compliance with such requirement 25 pursuant to paragraph h of this definition; 26 (vi) any location at which a food service establishment has a floor 27 area of at least seven thousand square feet, provided that the require- 28 ments of subparagraph (i) of paragraph a of subdivision three of this 29 section shall not apply to any such location when the building or prem- 30 ises containing such location is in compliance with such requirement 31 pursuant to paragraph g of this subdivision; 32 (vii) any building or premises where food service establishments 33 having a total combined floor area of at least eight thousand square 34 feet are located and where the owner of the building or premises, or its 35 agent, arranges or contracts with a private carter for the removal of 36 waste from food service establishments having no less than eight thou- 37 sand square feet of such building or premises, provided that any such 38 food service establishments shall comply with the requirements of 39 subparagraphs (ii), (iii) and (iv) of paragraph a of subdivision three 40 of this section, but such requirements shall not apply to the owner or 41 agent of any such building or premises; 42 (viii) any location at which a food preparation establishment has a 43 floor area of at least six thousand square feet; 44 (ix) any catering establishment that is required to provide for the 45 removal of waste pursuant to section 16-116 of the code of the preceding 46 municipality whenever the anticipated attendance for any particular 47 event is greater than one hundred persons; 48 (x) any food service establishments located within and providing food 49 to one or more hotels totaling at least one hundred sleeping rooms; and 50 (xi) sponsors of a temporary public event. 51 e. "Designated area" means within a one hundred mile radius of the 52 city. 53 f. "Food manufacturer" means any establishment that processes or 54 fabricates food products from raw materials for commercial purposes, 55 provided that it shall not include any establishment engaged solely in 56 the warehousing, distribution or retail sale of product.S. 8474 1163 1 g. "Food preparation establishment" means a business that is primarily 2 engaged in providing food or food services for a temporary, fixed time, 3 or based on contractual arrangements for a specified period of time at 4 locations other than such establishment's permanent place of business. 5 h. "Food service establishment" means any premises or part of a prem- 6 ises that is required to provide for the removal of waste pursuant to 7 section 16-116 of the code of the preceding municipality where food is 8 provided directly to the consumer, whether such food is provided free of 9 charge or sold, and whether consumption occurs on or off the premises. 10 Food service establishment shall include, but not be limited to, full- 11 service restaurants, fast food restaurants, cafes, delicatessens, coffee 12 shops, and business, institutional or government agency cafeterias, but 13 shall not include retail food stores, convenience stores, pharmacies, 14 and mobile food vending units, as such term is defined in section 89.03 15 of the health code. Food service establishment shall also not include 16 any premises or place of business where the sole or primary source of 17 food is a refreshment counter where the available food is limited to 18 items such as beverages, prepackaged items, and snacks. 19 i. "Food wholesaler" means any establishment primarily engaged in the 20 wholesale distribution of groceries and related products including, but 21 not limited to, packaged frozen food, dairy products, poultry products, 22 confectioneries, fish and seafood, meat products, and fresh fruits and 23 vegetables but shall not apply to establishments that handle only pre- 24 packaged, non-perishable foods. 25 j. "Hotel" shall have the same meaning as set forth in section 27-2004 26 of the housing maintenance code. 27 k. "In vessel composting" means a process in which organic waste is 28 enclosed in a drum, silo, bin, tunnel, reactor, or other container for 29 the purpose of producing compost, maintained under controlled conditions 30 of temperature and moisture and where air-borne emissions are 31 controlled. 32 l. "Organic waste" shall have the same meaning as set forth in section 33 16-303 of this title, except that for purposes of this section, organic 34 waste shall not include food that is donated to a third party, food that 35 is sold to farmers for feedstock, and meat by-products that are sold to 36 a rendering company. 37 m. "Private carter" means a business licensed by the business integri- 38 ty commission pursuant to title sixteen-A of the code of the preceding 39 municipality. 40 n. "Retail food store" means any establishment or section of an estab- 41 lishment where food and food products offered to the consumer are 42 intended for off-premises consumption, but shall exclude convenience 43 stores, pharmacies, greenmarkets or farmers' markets and food service 44 establishments. 45 o. "Sponsor of a temporary public event" means the applicant for a 46 street activity permit pursuant to chapter one of title fifty of the 47 rules of the city of New York, or any successor provision, for any 48 activity on a public street, street curb lane, sidewalk or pedestrian 49 island or plaza with an anticipated attendance of greater than five 50 hundred persons per day where the activity will interfere with or 51 obstruct the regular use of the location by pedestrian or vehicular 52 traffic. Such term shall not include activities conducted pursuant to a 53 valid film permit, demonstrations, parades or block parties. 54 p. "Stadium" means an establishment or facility that hosts live sport- 55 ing or entertainment events.S. 8474 1164 1 2. The commissioner shall, on a regular basis and no less than annual- 2 ly, evaluate the capacity of all facilities within the designated area 3 and the cost of processing organic waste by composting, aerobic or anae- 4 robic digestion, or any other method of processing organic waste that 5 the department approves by rule. If the commissioner determines that 6 there is sufficient capacity and that the cost of processing organic 7 waste consistent with this section is competitive with the cost of 8 disposing of organic waste by landfill or incineration, he or she shall 9 designate by rule all covered establishments or a subset of covered 10 establishments, based on any criteria, among such covered establish- 11 ments, that generate a quantity of organic waste that would not exceed 12 the evaluated capacity. All such designated covered establishments shall 13 comply with the requirements of subdivision three of this section begin- 14 ning no later than six months following such designation. In addition, 15 the commissioner shall include in his or her evaluation the capacity of 16 any facilities outside of the designated area that have arrangements or 17 contracts with transfer stations or private carters to accept and proc- 18 ess organic waste generated by and collected from covered establish- 19 ments. 20 3. a. Each designated covered establishment shall: 21 (i) either (1) ensure collection by a private carter of all organic 22 waste generated by such establishment for purposes of composting, aero- 23 bic or anaerobic digestion, or any other method of processing organic 24 waste that the department approves by rule, (2) transport its own organ- 25 ic waste to a facility that provides for composting, aerobic or anaero- 26 bic digestion, or any other method of processing organic waste that the 27 department approves by rule, provided that the covered establishment 28 first obtains a registration issued by the business integrity commission 29 pursuant to subdivision b of section 16-505 of the code of the preceding 30 municipality, or (3) provide for on-site in vessel composting, aerobic 31 or anaerobic digestion, or any other method of processing organic waste 32 that the department approves by rule for some or all of the organic 33 waste it generates on its premises, provided that it arranges for the 34 collection or transport of the remainder of such organic waste, if any, 35 in accordance with clause one or two of this subparagraph; 36 (ii) post a sign, which shall be in addition to any other sign 37 required to be posted pursuant to this code, that states clearly and 38 legibly the trade or business name, address, and telephone number of, 39 and the day and time of pickup by, the private carter that collects the 40 covered establishment's organic waste, that such covered establishment 41 transports its own organic waste, or that such covered establishment 42 provides for on-site processing for all of the organic waste it gener- 43 ates on its premises, provided that: 44 (1) such sign shall be prominently displayed by affixing it to a 45 window near the principal entrance to the covered establishment so as to 46 be easily visible from outside the building or, if this is not possible, 47 prominently displayed inside the covered establishment near the princi- 48 pal entrance; 49 (2) catering establishments shall not be required to display on such 50 sign the day and time of the pickup by the private carter that collects 51 the establishment's organic waste; and 52 (3) this paragraph shall not apply to sponsors of temporary public 53 events; 54 (iii) provide separate bins for the disposal of organic waste in any 55 area where such organic waste is generated and disposed of; andS. 8474 1165 1 (iv) post instructions on the proper separation of organic waste where 2 such instructions will be visible to persons who are disposing of organ- 3 ic waste, provided that this subparagraph shall not apply to sponsors of 4 temporary public events. 5 b. Any covered establishment that arranges for the collection by a 6 private carter of its organic waste pursuant to this subdivision shall 7 not commingle such organic waste with other designated and non-designat- 8 ed recyclable material or solid waste, and shall place such organic 9 waste out for collection by a private carter in a container or contain- 10 ers that (i) has a lid and a latch that keeps the lid closed and is 11 resistant to tampering by rodents or other wildlife, (ii) has the capac- 12 ity that meets the disposal needs of the covered establishment and its 13 private carter, (iii) is compatible with the private carter's hauling 14 collection practices, and (iv) is closed and latched at the time it is 15 placed out for collection. 16 4. Any private carter that collects source separated organic waste 17 shall either: 18 a. deliver collected organic waste to a transfer station that has 19 represented that it will deliver such organic waste to a facility for 20 purposes of composting, aerobic or anaerobic digestion, or any other 21 method of processing organic waste that the department approves by rule; 22 or 23 b. deliver such organic waste directly to a facility for purposes of 24 composting, aerobic or anaerobic digestion, or any other method of proc- 25 essing organic waste that the department approves by rule. 26 5. Any transfer station that receives source separated organic waste 27 pursuant to this section shall deliver or have delivered such organic 28 waste directly to a facility that accepts organic waste for purposes of 29 composting, aerobic or anaerobic digestion, or any other method of proc- 30 essing organic waste that the department approves by rule. This subdivi- 31 sion shall not apply to waste that cannot be processed at an organic 32 waste processing facility. 33 6. The provisions of this section relating to private carters shall be 34 enforced by the business integrity commission and the department. The 35 provisions of this section relating to covered establishments shall be 36 enforced by the department, the department of health and mental hygiene, 37 and the department of consumer and worker protection. 38 7. The department, the business integrity commission, the department 39 of health and mental hygiene, and the department of consumer affairs may 40 promulgate any rules necessary to implement this section, including, but 41 not limited to, rules establishing reporting requirements sufficient to 42 demonstrate compliance with this chapter. 43 8. Any person who owns or operates two or fewer food service estab- 44 lishments may request, and the commissioner shall grant, a waiver of the 45 requirements of this section if: a. no single food service establishment 46 has a floor area of at least seven thousand square feet; b. the food 47 service establishment or establishments are individually franchised 48 outlets of a parent business covered by paragraph d of the definition of 49 "covered establishment" set forth in subdivision one of this section; 50 and c. the owner or operator establishes that such food service estab- 51 lishment or establishments do not receive private carting services 52 through a general carting agreement between a parent business and a 53 private carter. Such waiver shall be valid for twelve months and shall 54 be renewable upon application to the commissioner via the department's 55 website.S. 8474 1166 1 § 16-307 City agency waste. 1. The commissioner shall adopt, amend and 2 implement rules, as necessary, governing the source separation or post- 3 collection separation, collection, processing, marketing, and sale of 4 designated recyclable materials including, but not limited to, desig- 5 nated metal, glass, plastic and paper generated by any agency, as such 6 term is defined in section 1-112 of the code of the preceding munici- 7 pality. 8 2. Every agency shall, no later than July first, two thousand eleven, 9 prepare and submit to the commissioner for approval, a waste prevention, 10 reuse and recycling plan. Such plan shall provide for the source sepa- 11 ration of designated metal, glass, plastic and paper, and such other 12 designated recyclable materials as the commissioner deems appropriate, 13 in all offices and buildings occupied by agencies that receive 14 collection service from the department and, to the extent practicable, 15 in those that receive private carter collection. Such plans shall 16 provide for the source separation of designated recyclable materials in 17 the lobbies of such offices or buildings that receive department 18 collection, unless the placement of bins for the source separation of 19 designated recyclable materials would be in violation of any other 20 provision of law, and, to the extent practicable, in the lobbies of such 21 offices or buildings that receive private carter collection. Each agency 22 shall designate a lead recycling or sustainability coordinator to over- 23 see implementation of such plans. If an agency has offices in more than 24 one city-owned building, then such agency shall designate one assistant 25 coordinator for each building in which such agency has offices, except 26 the building in which the lead coordinator has his or her office, to 27 assist the agency's lead coordinator. 28 3. On or before July first, two thousand twelve and annually thereaft- 29 er, every lead recycling or sustainability coordinator shall submit a 30 report to the head of his or her respective agency and to the commis- 31 sioner, summarizing actions taken to implement the waste prevention, 32 reuse and recycling plan for the previous twelve-month reporting period, 33 proposed actions to be taken to implement such plan, and updates or 34 changes to any information included in such plan. The department shall 35 consolidate the information contained in all reports prepared pursuant 36 to this subdivision as part of the department's annual zero waste report 37 required pursuant to subdivision b of section 16-316.5 of the code of 38 the preceding municipality. 39 § 16-307.1 School recycling. 1. The chancellor of the department of 40 education shall designate a sustainability director for the department 41 of education, who shall be responsible for (a) setting policies, guide- 42 lines and goals to promote waste prevention, reuse and recycling prac- 43 tices, and (b) coordinating the department of education's waste 44 prevention, reuse and recycling program in all school buildings, charter 45 school locations, office buildings, and any other facilities under the 46 jurisdiction of the department of education that receive department 47 collection service. 48 2. The chancellor of the department of education shall promulgate such 49 rules as may be necessary to require that each school building, charter 50 school location, office building, and any other facility under the 51 jurisdiction of the department of education that receives department 52 collection service, develop a site-specific waste prevention, reuse and 53 recycling plan. Each such plan shall be implemented by January first, 54 two thousand eleven. Such plan shall include, at a minimum, a require- 55 ment that each classroom maintain a separate receptacle, container or 56 bin for the collection of designated recyclable paper, and that suchS. 8474 1167 1 receptacle, container or bin be appropriately labeled or decorated with 2 recycling information. Such plan shall also provide that separate recep- 3 tacles, containers or bins for the collection of designated metal, glass 4 and plastic be appropriately labeled or decorated with recycling infor- 5 mation and be placed as close as practicable to school entrances, unless 6 the placement of such bins would be in violation of any other provision 7 of law, and in locations within schools where food and beverages are 8 routinely consumed. 9 3. The principal of each school under the jurisdiction of the depart- 10 ment of education shall designate a sustainability coordinator for his 11 or her school who shall be responsible for implementing his or her 12 school's waste prevention, reuse and recycling plan. The principal or 13 the sustainability coordinator shall complete, and submit to the depart- 14 ment of education sustainability director and to the chancellor, an 15 annual survey regarding such school's compliance with its waste 16 prevention, reuse and recycling plan. 17 4. The chancellor shall submit a report to the commissioner by January 18 first of each year regarding compliance with the requirements of this 19 section for the preceding July first through June thirtieth. The depart- 20 ment shall include the chancellor's report as part of the department's 21 annual zero waste report required pursuant to subdivision b of section 22 16-316.5 of the code of the preceding municipality. 23 5. The department shall distribute a model school waste prevention, 24 reuse and recycling plan to all primary and secondary schools not under 25 the jurisdiction of the department of education that receive department 26 collection service. All such primary and secondary schools shall desig- 27 nate a sustainability coordinator for each such school, and develop a 28 site-specific waste prevention, reuse and recycling plan. Each such plan 29 shall be implemented by January first, two thousand eleven. Such plan 30 shall include, at a minimum, a requirement that each room used primarily 31 as a classroom for students between kindergarten and the twelfth grade 32 maintain a separate receptacle, container or bin for the collection of 33 designated recyclable paper, and that such receptacle, container or bin 34 be appropriately labeled or decorated with recycling information. Such 35 plan shall also provide that separate receptacles, containers or bins 36 for the collection of designated metal, glass and plastic be appropri- 37 ately labeled or decorated with recycling information and be placed as 38 close as practicable to school entrances, unless the placement of such 39 bins would be in violation of any other provision of law. Such bins 40 shall also be placed in centralized locations within such schools where 41 food and beverages are routinely consumed, other than classrooms, such 42 as cafeterias and lunchrooms, or, if such school lacks a cafeteria or 43 lunchroom, in a location readily accessible to all students in such 44 school. 45 § 16-307.2 City agency food waste prevention plans. 1. Definitions. 46 As used in this section, the following terms have the following mean- 47 ings: 48 a. Covered agency. The term "covered agency" means an agency that has 49 entered into at least one food purchase contract within the previous 50 twelve months. 51 b. Food purchase contract. The term "food purchase contract" means: 52 (i) a contract entered into by an agency in excess of the small purchase 53 limits established by the procurement policy board, the principal 54 purpose of which is to provide food, provided that such contract author- 55 izes purchases only by the agency that entered into such contract, orS. 8474 1168 1 (ii) a purchase order for food the value of which exceeds one hundred 2 thousand dollars, made by an agency against an existing contract. 3 c. Surplus food. The term "surplus food" means any food obtained 4 through a food purchase contract that is not used for the purpose for 5 which it was purchased and that would otherwise be discarded. 6 2. Agency food waste prevention plan. Every covered agency shall, no 7 later than October first, two thousand twenty-one, prepare and submit to 8 the commissioner for approval, a food waste prevention plan. Any agency 9 that becomes a covered agency after October first, two thousand twenty- 10 one shall prepare and submit to the commissioner for approval, a food 11 waste prevention plan within ninety days of becoming a covered agency. 12 The commissioner shall submit each approved agency food waste prevention 13 plan to the speaker of the council not later than seven days after such 14 approval. Such plan shall conform to all applicable provisions of law 15 and, at a minimum: 16 a. Establish guidelines for how to identify surplus food that may be 17 safely donated; 18 b. Identify methods to reduce the amount of surplus food, including 19 the utilization of the food donation web portal described in section 20 16-497 of the code of the preceding municipality, when appropriate; 21 c. Set forth procedures for the safe, efficient donation of surplus 22 food; and 23 d. Include any other provisions necessary to facilitate the reduction 24 of surplus food and the donation of surplus food. 25 3. Food waste prevention coordinator. Upon approval of an agency's 26 food waste prevention plan by the commissioner, each covered agency 27 shall designate a coordinator to oversee implementation of the plan 28 required by subdivision two of this section. 29 4. Report. a. On or before January first, two thousand twenty-two, and 30 annually thereafter for the previous twelve-month reporting period, each 31 covered agency shall submit a report to the commissioner. Such report 32 shall include, at a minimum: 33 i. A summary of the actions taken to implement the agency's food waste 34 prevention plan; 35 ii. Any proposed additional actions to be taken to implement such 36 plan; and 37 iii. Any updates or changes to any information included in such plan. 38 b. The department shall consolidate the information contained in all 39 reports prepared pursuant to this subdivision and include such informa- 40 tion as part of the department's annual zero waste report required 41 pursuant to subdivision b of section 16-316.5 of the code of the preced- 42 ing municipality. 43 § 16-307.3 School food waste. 1. Definitions. As used in this section, 44 the following terms have the following meanings: 45 a. Chancellor. The term "chancellor" means the chancellor of the city 46 school district of the city of New York. 47 b. Food purchase contract. The term "food purchase contract" means any 48 purchase order or contract entered into by the department of education, 49 the principal purpose of which is to provide food, and the value of 50 which exceeds one hundred thousand dollars. 51 c. School. The term "school" means a school of the city school 52 district of the city of New York. 53 d. Surplus food. The term "surplus food" means any food obtained 54 through a food purchase contract that is not used for the purpose for 55 which it was purchased and that would otherwise be discarded.S. 8474 1169 1 2. Food waste prevention plan. No later than October first, two thou- 2 sand twenty-one, the chancellor shall prepare and submit to the commis- 3 sioner a food waste prevention plan. Preparation of such food waste 4 prevention plan shall provide school sustainability coordinators desig- 5 nated pursuant to subdivision three of section 16-307.1 of this chapter 6 an opportunity to offer ideas concerning food waste prevention. Such 7 plan shall conform to all applicable provisions of law and include, but 8 need not be limited to, the following information: 9 a. Guidelines for how to identify surplus food that may be safely 10 donated; 11 b. Any methods the chancellor has identified to reduce the amount of 12 surplus food in schools; 13 c. Any procedures the chancellor has identified that would allow the 14 department of education or a school to donate surplus food safely and 15 efficiently; and 16 d. Any barriers the chancellor has identified that would prevent the 17 safe and efficient donation of surplus food. 18 3. Review by commissioner. The commissioner shall review the plan 19 required pursuant to subdivision two of this section within ninety days 20 of its submission and shall submit recommendations on the plan to the 21 chancellor. The commissioner shall simultaneously submit a copy of the 22 chancellor's plan and the commissioner's recommendations to the speaker 23 of the council. 24 4. Report. On or before February first, two thousand twenty-two, the 25 chancellor shall submit a report to the commissioner. Such report shall 26 include, at a minimum: 27 a. A summary of actions taken to implement the food waste prevention 28 plan; 29 b. A summary of actions that the chancellor proposes be taken to 30 implement such plan; and 31 c. Any updates or changes to any information included in such plan. 32 § 16-308 Organic waste. 1. The commissioner shall provide for the 33 source separation, collection and composting of yard waste, unless the 34 generator otherwise provides for recycling or storage for composting or 35 mulching. In addition, the commissioner shall provide for the collection 36 and composting of yard waste generated and source separated at residen- 37 tial properties owned or operated by the New York city housing authori- 38 ty. There shall be operated by or on behalf of the department one or 39 more yard waste composting facilities through which the department shall 40 compost yard waste collected by or delivered to the department pursuant 41 to this section. In order to comply with this provision, the department 42 may utilize the services of privately-owned or operated facilities. The 43 department shall also work in consultation with the composting facility 44 siting task force established by the two thousand six solid waste 45 management plan to identify additional locations to site yard waste 46 composting facilities with the goal of establishing at least one such 47 composting facility in each borough where the department conducts yard 48 waste composting collection. 49 2. Any city agency, or person under contract with a city agency, that 50 generates a substantial amount of yard waste shall, in coordination with 51 the department, provide for the source separation, collection and 52 composting of such yard waste. Unless otherwise provided by law, the 53 department shall accept for composting any city agency yard waste source 54 separated for department collection pursuant to this subdivision. 55 3. No landfill, waste transfer station, intermodal facility, incinera- 56 tor or resource recovery facility owned, operated or used by the depart-S. 8474 1170 1 ment shall accept truck loads of department-managed waste primarily 2 composed of yard waste for final disposal, except that composted yard 3 waste may be used as part of the final vegetative cover for a department 4 landfill. 5 4. All city agencies responsible for the maintenance of public lands 6 shall to the maximum extent practicable and feasible give preference to 7 the use of compost materials derived from the city's yard waste in all 8 land maintenance activities. 9 5. Generators of yard waste, except those identified in subdivision 10 seven of this section, shall separate, tie, bundle, or place into bags 11 or receptacles, in accordance with rules promulgated by the commission- 12 er, any yard waste set out for collection by the department pursuant to 13 subdivision two of this section. The commissioner shall notify all resi- 14 dents in districts that receive yard waste collection by the department 15 of such pre-collection procedures, and undertake any other action neces- 16 sary to effectuate the purposes of this subdivision. 17 6. No person engaged in a business that generates yard waste shall 18 leave such yard waste for collection by the department, or disperse such 19 yard waste in or about the curb or street. Any person engaged in a busi- 20 ness that generates yard waste shall be required to collect and dispose 21 of such yard waste at a permitted composting facility; provided, howev- 22 er, that if the department, by written order of the commissioner, deter- 23 mines that there is insufficient capacity at permitted composting facil- 24 ities within the city, then such yard waste may be disposed of at any 25 appropriately permitted solid waste management facility. 26 7. Each permitted composting facility within the city, including those 27 operated by city agencies, shall annually report to the commissioner the 28 amount of yard waste and any other organic waste collected and disposed 29 of by weight at such composting facility. All such reports shall be 30 submitted prior to February first of each calendar year and shall 31 contain the amount collected and disposed of for the previous calendar 32 year. The department shall consolidate the information contained in all 33 reports prepared pursuant to this subdivision and include such informa- 34 tion as part of the department's annual zero waste report required 35 pursuant to subdivision b of section 16-316.5 of the code of the preced- 36 ing municipality. 37 8. No person residing in a district where the department provides 38 residential yard waste composting collection pursuant to subdivision two 39 of this section shall dispose of grass clippings as regular waste for 40 collection by the department during the period of time when the depart- 41 ment conducts such composting collection. The department shall conduct 42 outreach and education to inform residents within such districts of the 43 dates when it will conduct yard waste composting collection. No person 44 residing in a district where the department provides residential yard 45 waste composting collection shall be held liable for a violation of this 46 subdivision during the first year the department provides such residen- 47 tial yard waste composting collection. 48 § 16-308.1 Curbside organics collection. 1. Organics collection 49 program. The department shall establish a mandatory citywide curbside 50 organics collection program for the diversion of organic waste in 51 accordance with this section. Such program shall be implemented by no 52 later than: 53 a. October second, two thousand twenty-three, for residential proper- 54 ties in no less than thirty sanitation districts, as determined by the 55 commissioner by rule.S. 8474 1171 1 b. October seventh, two thousand twenty-four, for residential proper- 2 ties in all remaining sanitation districts. 3 2. Implementation plan. No later than July first, two thousand twen- 4 ty-three, the department shall develop, submit to the mayor and speaker 5 of the council, and post on the department's website a curbside organics 6 collection implementation plan. Such plan shall include information 7 related to, at minimum: 8 a. How the department will implement such program; 9 b. The education and outreach program required pursuant to subdivision 10 five of this section; and 11 c. How the department will distribute necessary materials, including 12 rodent-proof organics collection bins, at no cost to residential build- 13 ing owners, and a timeline for such distribution. 14 3. End use of collected organic waste. In the next solid waste manage- 15 ment plan prepared pursuant to section 27-0107 of the environmental 16 conservation law and presented to the council pursuant to section 16-140 17 of the code of the preceding municipality following the effective date 18 of this section, the department shall include a plan to maximize the 19 usable composting of organic waste collected pursuant to this section. 20 Such plan for the usable composting of organic waste shall describe the 21 amount of organic waste collected and sent to composting facilities to 22 be processed into usable compost pursuant to this section. 23 4. Reporting. The department shall report by weight the total amount 24 of organic waste diverted pursuant to this section during the previous 25 year, disaggregated by sanitation district. Such report shall be 26 included as part of the department's annual zero waste report required 27 pursuant to section 16-316.5 of the code of the preceding municipality. 28 5. Education and outreach. The department shall develop an outreach 29 and education program to educate residents, building owners, and staff 30 of residential buildings on the curbside organics collection program 31 established pursuant to this section. Materials used for such outreach 32 and education program shall be available in all designated citywide 33 languages, as defined in section 23-1101 of the code of the preceding 34 municipality, and any additional languages as determined by the depart- 35 ment in consultation with local community organizations. No later than 36 two months prior to the implementation of the curbside organics 37 collection program for residential properties in a sanitation district 38 pursuant to subdivision one of this section, the department shall 39 distribute such materials to residents, building owners, and community 40 based organizations in such district. Such materials shall also be made 41 available on the department's website. Such materials shall include: 42 a. A detailed explanation of organic waste and the benefits of curb- 43 side organics collection; 44 b. Information on how the curbside organics collection program will be 45 implemented and instructions for how to properly source separate organic 46 waste; and 47 c. Any other information as determined by the commissioner. 48 6. Rules. The commissioner shall adopt and implement rules as neces- 49 sary to effectuate this section. Such rules may include, but need not be 50 limited to, the designation of organic waste as a recyclable material 51 pursuant to subdivision two of section 16-305 of this chapter, proce- 52 dures requiring the placement of organic waste at the curbside, in 53 specialized containers or in another manner determined by the commis- 54 sioner pursuant to subdivision four of such section, and the implementa- 55 tion and enforcement of this section and such rules in buildingsS. 8474 1172 1 containing four or more dwelling units pursuant to subdivisions five, 2 six and seven of section 16-305 of this chapter. 3 7. Penalty. A residential building owner who violates this section 4 shall be liable for a civil penalty as set forth in section 16-324 of 5 this title, except that prior to April first, two thousand twenty-five, 6 a residential building owner who violates this section shall be issued a 7 written warning that a violation has been observed, provided that noth- 8 ing in this subdivision shall preclude the department from enforcing any 9 rules relating to yard waste separation promulgated pursuant to section 10 16-308 of this chapter. 11 § 16-308.2 Organic waste drop off sites. 1. Definitions. As used in 12 this section, the following terms have the following meanings: 13 a. Community partner. The term "community partner" means a not-for- 14 profit organization, community garden or other similar organization that 15 operates or makes available to the public an organic waste drop off 16 site. 17 b. Community scale composting facility. The term "community scale 18 composting facility" means a physical location operated by a not-for- 19 profit organization that engages in composting, through a registration 20 or agreement with the department, but that is not of sufficient size so 21 as to be required to obtain a permit for the operation of such facility 22 from the New York state department of environmental conservation. 23 c. Organic waste drop off site. The term "organic waste drop off site" 24 means a physical location for the collection of organic waste from 25 members of the public. 26 2. Except as provided in subdivision three of this section, no later 27 than April first, two thousand twenty-four, the department, in consulta- 28 tion with community partners, shall ensure that no less than thirty 29 organic waste drop off sites are established and operational throughout 30 the city, provided that no less than three such sites are established in 31 each borough. Each such site shall have a minimum of twenty hours avail- 32 able per week for individuals to drop off organic waste, except that 33 organic waste drop off sites operated by community partners shall be 34 open for a minimum of five hours per week, and each such organic waste 35 drop off site shall be located in a geographic area that is easily 36 accessible, including for persons with disabilities, and in close prox- 37 imity to public transportation, provided, however, an organic waste drop 38 off site operated by a community partner may be operated on a seasonal 39 basis. 40 3. For the purposes of subdivision two of this section, an organic 41 waste drop off site may be a community scale composting facility or a 42 drop off site operated by the department, including co-location with a 43 recycling center, as required pursuant to section 16-310.3 of this chap- 44 ter. 45 4. No later than January first, two thousand twenty-six, the depart- 46 ment shall review the requirements of subdivision two of this section 47 and submit to the mayor and the speaker of the council a recommendation 48 as to whether such drop off sites should be continued. 49 5. Site information. The department shall post on its website informa- 50 tion about each organic waste drop off site established pursuant to this 51 section. Such information shall include each such site's address, 52 contact information, hours of operation and services provided. Where 53 applicable, such information shall also be clearly posted in a publicly 54 visible location at the entrance to each such site. 55 6. Education and outreach. The department, in consultation with any 56 agency or office designated by the mayor, shall develop an education andS. 8474 1173 1 outreach program to inform residents about the organic waste drop off 2 sites and community scale composting facilities established pursuant to 3 this section. Such education and outreach shall include the information 4 set forth in subdivision five of this section. Any educational or 5 outreach materials developed pursuant to this section, as well as any 6 other educational materials on recycling that the commissioner deems 7 relevant, shall be available in all designated citywide languages, as 8 defined in section 23-1101 of the code of the preceding municipality, 9 and supplied to each organic waste drop off site. The department shall 10 also perform outreach to community partners and other not-for-profit 11 organizations to provide them with information on how the public can 12 engage in opportunities to work with the department to open and operate 13 organic waste drop off sites and community scale composting facilities. 14 7. Reporting. The department shall report annually on the operation of 15 organic waste drop off sites. Such report shall be included as part of 16 the department's annual zero waste report required pursuant to section 17 16-316.5 of the code of the preceding municipality. Such report shall 18 include, at a minimum, the following information, disaggregated by 19 organic waste drop off site where feasible: 20 a. The total amount of material collected at such site; 21 b. The number of individuals who used such site during the reporting 22 period; 23 c. The number of full-time and part-time staff members working at such 24 site, if any; and 25 d. Where the organic waste collected at such site was processed 26 following collection. 27 § 16-309 Christmas trees. The commissioner shall establish and imple- 28 ment a curbside collection system for Christmas trees during a minimum 29 of two weeks in January of each year and provide for the composting or 30 recycling of the Christmas trees the department collects or receives for 31 disposal. 32 § 16-310 Public space recycling. 1. The department shall expand its 33 public space recycling program by increasing the number of public space 34 recycling receptacles for the collection of recyclable materials includ- 35 ing, but not limited to, metal, glass, plastic and paper designated as 36 recyclable materials by the commissioner, to a cumulative total of at 37 least five hundred public space recycling receptacles, and to a cumula- 38 tive total of at least one thousand public space recycling receptacles, 39 at public locations in the city, which shall be in or near public parks, 40 transit hubs, or commercial locations with high-pedestrian traffic. As 41 part of such expansion, the department shall place public space recycl- 42 ing receptacles in all business improvement districts that provide 43 public litter basket maintenance. Whenever practicable, public space 44 recycling receptacles placed pursuant to this section shall be placed 45 adjacent to public litter baskets. 46 2. Notwithstanding the provisions of subdivision one of this section, 47 the department shall not be required to expand the public space recycl- 48 ing program beyond existing or newly-established collection routes that 49 can be efficiently serviced by the department. The commissioner shall 50 have the authority to remove any public space recycling receptacle 51 placed pursuant to this section, provided that the department replaces 52 any such public space recycling receptacle, within thirty days of 53 removal, with additional public space recycling receptacles at the same 54 or in a different location on a one-to-one basis. 55 3. No person responsible for removing or transporting recyclable mate- 56 rials placed in public space recycling receptacles shall commingle suchS. 8474 1174 1 recyclable materials with non-recyclable materials or otherwise improp- 2 erly dispose of such recyclable materials. 3 4. The department shall report the total number of public space recy- 4 cling receptacles added during the relevant reporting year, and the 5 locations in which they were placed. Such report shall be included as 6 part of the department's annual zero waste report required pursuant to 7 subdivision b of section 16-316.5 of the code of the preceding munici- 8 pality. 9 5. The department may enter into sponsorship or partnership agreements 10 with entities such as for-profit and not-for-profit corporations and 11 district management associations established in accordance with section 12 25-414 of the code of the preceding municipality to further the goals of 13 this chapter. 14 § 16-310.1 Textile reuse and recycling program. 1. On or before Janu- 15 ary first, two thousand eleven, the department shall establish a city- 16 wide textile reuse and recycling program that shall, at a minimum, 17 provide for the recovery of textiles by placing department-approved 18 publicly accessible textile drop-off bins at appropriate locations on 19 city property or property maintained by the city and organizing public 20 textile reuse and recycling sites throughout the city that provide 21 convenient drop-off locations for all city residents. In addition, the 22 commissioner shall explore opportunities to work cooperatively with 23 private entities, including, but not limited to, not-for-profit corpo- 24 rations and religious institutions, to promote expanded siting of 25 publicly accessible textile drop-off bins on private property throughout 26 the city. The department shall consider using department personnel or 27 facilities in order to implement the provisions of this section. 28 2. No publicly accessible textile drop-off bin placed pursuant to this 29 section shall be placed on city property or property maintained by the 30 city, or on a public sidewalk or roadway, unless otherwise authorized by 31 the city. No publicly accessible textile drop-off bin shall be placed on 32 private property without the written permission of the property owner or 33 the property owner's authorized agent. The owner or other person respon- 34 sible for each such bin shall report at least every three months to the 35 department the amount of textiles collected in such bin by weight. Each 36 publicly accessible textile drop-off bin shall prominently display on 37 the front and on at least one other side of the bin, the name, address 38 and telephone number of the owner or other person responsible for the 39 bin. This information shall be printed in characters that are plainly 40 visible. In no event shall a post office box be considered an acceptable 41 address for purposes of this subdivision. 42 3. The department shall report by weight the amount of textiles 43 collected in publicly accessible textile drop-off bins located on city 44 property or property maintained by the city, through public textile 45 reuse and recycling sites pursuant to subdivision one of this section 46 and in publicly accessible textile drop-off bins maintained on private 47 property. Such report shall be included as part of the department's 48 annual zero waste report required pursuant to subdivision b of section 49 16-316.5 of the code of the preceding municipality. 50 § 16-310.2 Paint stewardship program. 1. The commissioner shall estab- 51 lish a voluntary paint stewardship program under which manufacturers of 52 architectural paint, in cooperation with distributors of architectural 53 paint and retail establishments that sell, or offer for sale, architec- 54 tural paint in the city, may establish a collection or other reclamation 55 system to collect architectural paint from consumers for reuse, recycl- 56 ing or environmentally sound disposal.S. 8474 1175 1 2. The commissioner shall provide assistance or guidance to partic- 2 ipating architectural paint manufacturers, distributors and retail 3 establishments in developing and implementing strategies to reduce the 4 quantity of architectural paint in the waste stream, promote the reuse 5 of architectural paint that would otherwise be discarded and disseminate 6 information regarding options to recycle architectural paint including, 7 but not limited to, posting information regarding the voluntary paint 8 stewardship program on the department's website. 9 § 16-310.3 Community recycling. 1. Community recycling centers. No 10 later than December thirty-first, two thousand twenty-four, the depart- 11 ment shall ensure that at least two community recycling centers are 12 established and operational in each borough. Each such center shall be 13 available for drop offs at least twenty-four hours per week, including 14 weekends. Such centers shall be located in geographic areas that are 15 easily accessible, including for persons with disabilities, and shall be 16 in close proximity to public transportation and public housing develop- 17 ments, where practicable. Any organic waste drop off site provided for 18 by local law may be co-located within such a center. 19 2. Community recycling events. No later than September thirtieth, two 20 thousand twenty-three, and annually thereafter, the department shall 21 host no less than one community recycling event in each community 22 district. Each such event shall be located in a geographic area that is 23 easily accessible, including for persons with disabilities, and in close 24 proximity to public transportation and public housing developments, 25 where practicable. Such events may be co-located with other sanitation 26 services. Community recycling events required by this subdivision shall 27 be in addition to any recycling event operated by an entity or organiza- 28 tion other than the department, provided that any recycling event oper- 29 ated pursuant to a contract with the department shall be considered to 30 be hosted by the department for purposes of this section. 31 3. Materials collected. Each community recycling center and community 32 recycling event shall accept, to the extent practicable, inorganic mate- 33 rial that is not collected through regular curbside collection but that 34 can be recycled or reused. One community recycling center per borough 35 shall also accept hazardous material, as practicable and as defined by 36 the department, that should not be disposed of as curbside waste. 37 4. Community recycling center and event information. The department 38 shall make available on the department's website, and distribute to each 39 local community board, the following information about the community 40 recycling centers and community recycling events required by this 41 section: 42 a. Location, including street address and borough; 43 b. Contact information; 44 c. Hours of operation; and 45 d. Services provided. 46 5. Education and outreach. The department, in consultation with any 47 agency identified by the mayor, shall develop an outreach and education 48 program to inform residents about community recycling centers and commu- 49 nity recycling events, including their locations, contact information, 50 hours of operation, and the services they provide. 51 6. Reporting. The department shall report annually on the operation 52 community recycling centers and community recycling events required 53 pursuant to this section. Such report shall be included as part of the 54 department's annual waste diversion report required pursuant to section 55 16-316.5 of the code of the preceding municipality. Such report shall 56 include, but need not be limited to, the following information, disag-S. 8474 1176 1 gregated by community recycling center and community recycling event, 2 where feasible: 3 a. The number of individuals utilizing such centers and events; 4 b. The material collected at each such center and event, disaggregated 5 by material type; 6 c. The number of full-time and part-time staff persons working at each 7 such center and event; 8 d. Where each type of material collected is sent; and 9 e. A description of the education programs offered to the public. 10 § 16-311. Recycling outreach and education. 1. The department shall 11 provide instruction and materials for residential building owners, net 12 lessees or persons in charge of such buildings, and their employees and 13 residents, in order to improve compliance with the provisions of this 14 chapter. 15 2. The commissioner shall establish a recycling education program that 16 shall include recycling instructional workshops, training curricula and 17 other relevant materials for residential building owners, net lessees or 18 persons in charge of such buildings, and their employees and residents, 19 including an internet-based recycling tutorial. Such program shall also 20 provide instructional workshops, training curricula, and other relevant 21 material to employees of city agencies, including a leaf and yard waste 22 training program for employees of any such agencies that generate 23 significant leaf and yard waste. The commissioner may utilize a private 24 entity or not-for-profit corporation to assist with the establishment or 25 performance of such program. 26 § 16-312 Processing recyclable materials. The commissioner shall 27 establish procedures and standards for processing recyclable materials 28 designated pursuant to section 16-305 of this chapter in city owned or 29 operated recycling centers, city owned or operated transfer stations or 30 any city owned or operated facility that renders recyclable materials 31 suitable for reuse or marketing and sale. The commissioner shall annu- 32 ally review such procedures and standards and make any changes necessary 33 to conform to the requirements of the marketplace. 34 § 16-313 Marketing recyclable materials. The department shall estab- 35 lish procedures, standards and strategies to market the recyclable mate- 36 rials designated pursuant to section 16-305 of this chapter, including 37 but not limited to maintaining a list of prospective buyers, establish- 38 ing contact with prospective buyers, entering into contracts with 39 buyers, and reviewing and making any necessary changes in collecting or 40 processing the materials to improve their marketability. 41 § 16-314 Recycling program revisions. The commissioner shall annually 42 review the recycling program and all rules promulgated thereunder, and 43 shall make the necessary revisions to improve the efficiency of collect- 44 ing, processing, marketing and selling the materials recycled pursuant 45 to this title. These revisions may include designating additional 46 recyclable materials. The commissioner shall not delete designated mate- 47 rials without designating additional materials so that the total quanti- 48 ty, by weight, of all designated recyclable materials collected, proc- 49 essed, marketed and sold does not decrease. 50 Where the commissioner determines that it is appropriate to delete a 51 designated material, the department shall provide notice of such 52 deletion to the mayor and the council, including the reason for such 53 deletion, and shall provide any relevant data supporting such decision. 54 § 16-315 Notice, education and research programs. 1. In addition to 55 the notice requirements of this code, within thirty days of the effec- 56 tive date of any rules promulgated pursuant to this title, and asS. 8474 1177 1 frequently thereafter as the commissioner deems necessary, the depart- 2 ment shall notify all persons occupying residential, commercial and 3 industrial premises affected by the rules, of the requirements of the 4 rules, by posting notices containing recycling information in public 5 places where such notices are customarily placed and, in the commission- 6 er's discretion, employing any other means of notification deemed neces- 7 sary and appropriate. 8 2. The commissioner shall compile relevant recycling, reuse and 9 composting information, including material available on the department's 10 website, to create and make available a guide to the city's residential 11 recycling program. Such guide shall, at a minimum, summarize and explain 12 the laws and rules governing curbside recycling, list the collection 13 locations and collection dates for non-curbside collected recyclable 14 materials such as household hazardous waste and textiles, and provide 15 detailed information and instructions on how to recycle any materials 16 not collected by the department for which non-city or non-department 17 recycling programs exist. Such guide shall be made available to resi- 18 dential building owners, or the net lessees or persons in charge of such 19 buildings, community boards, not-for-profit organizations, public 20 schools, and other relevant agencies and entities, and shall also be 21 made available on the department website. The commissioner shall update 22 the recycling guide biennially, or as necessary, based on changes to 23 recycling laws, rules or other relevant information to be included ther- 24 ein. 25 3. The department shall develop and implement an educational program, 26 in conjunction with the department of education, private schools, labor 27 organizations, businesses, neighborhood organizations, and other inter- 28 ested and affected parties, and using flyers, print and electronic 29 advertising, public events, promotional activities, public service 30 announcements, and such other techniques as the commissioner determines 31 to be useful, to assure the greatest possible level of compliance with 32 the provisions of this title. The educational program shall encourage 33 waste reduction, the reuse of materials, the purchase of recyclable 34 products, and participation in city and private recycling activities. 35 4. The department shall perform such research and development activ- 36 ities, in cooperation with other city agencies, and public and private 37 institutions, as the commissioner determines to be helpful in implement- 38 ing the city's recycling program. Such research shall include, but not 39 be limited to, investigation into the use of cooperative marketing 40 programs, material recovery facilities, recycling as an economic devel- 41 opment tool, export promotion, tax credits and exemptions for market 42 promotion. 43 Chapter 5 44 RECYCLING ADVISORY BOARDS 45 § 16-317 Citizens' solid waste advisory boards; membership. Within six 46 months of the effective date of this title, the city shall establish a 47 citizens' solid waste advisory board (the "citizens' board"), consisting 48 of no fewer than twenty members who for the first term shall be 49 comprised of the members of the city's citizens' advisory committee on 50 resource recovery and other persons appointed jointly by the mayor and 51 the council members. For each subsequent term, all members shall be 52 appointed jointly by the mayor and the council members. The membership 53 of the citizens' board shall represent community boards, recycling 54 industries, carting industries, environmental organizations, governmentS. 8474 1178 1 agencies, labor organizations, business organizations, property owners, 2 tenant organizations and members of the general public. Members shall 3 serve for a term of one year without compensation and shall designate 4 one member to serve as chairperson and one as vice-chairperson. 5 § 16-318 Functions of the citizens' board. 1. The department shall 6 submit to the mayor the portion of the biennial report addressing the 7 city's recycling program that is prepared pursuant to the city's two 8 thousand six solid waste management plan, simultaneous with the 9 submission of such report to the mayor and the council. The mayor shall 10 distribute copies of the plans to each member of the citizens' board. 11 Within ninety days thereafter, the citizens' board shall review the 12 plans, conduct a public hearing on the plans and make written recommen- 13 dations to the mayor, the department and the council with respect to the 14 recycling program. The citizens' board shall also annually advise the 15 mayor and the department with respect to the development, promotion and 16 operation of the recycling program and pursuant to this function shall 17 formulate and recommend: 18 (a) annual recycling goals equal to or greater than those set forth in 19 section 16-305 of this title and the methods proposed to achieve such 20 goals; 21 (b) means to encourage community participation in the recycling 22 program; and 23 (c) means to promote the recycling program and educate the public with 24 regard to the program. 25 2. The citizens' board shall assume all the responsibilities and func- 26 tions of the city's citizens' advisory committee on resource recovery. 27 § 16-319 Citywide recycling advisory board; membership. There shall be 28 a citywide recycling advisory board (the "citywide board") consisting of 29 at least one representative from each citizen's board, five members 30 appointed by the council, and five members appointed by the mayor. The 31 membership of the citywide board shall represent community boards, recy- 32 cling industries, carting industries, environmental organizations, 33 government agencies, labor organizations, business organizations, real 34 property owners, tenant organizations and members of the general public. 35 Members shall serve for a term of one year without compensation and 36 shall designate one member to serve as chairperson and one as vice- 37 chairperson. 38 § 16-320 Functions of the citywide board. The citywide board shall 39 meet at least four times a year to discuss citywide recycling issues, 40 including but not limited to budgetary issues. The citywide board shall 41 annually review the department's recycling program and make recommenda- 42 tions to the mayor and the council concerning improvements to and chang- 43 es in the program. 44 § 16-321 Disclosure requirements. 1. Whenever a person, other than a 45 public servant, appointed to any advisory board created pursuant to this 46 chapter, engages in any business dealings with the department, or 47 engages in business dealings with any other agency that relate to proc- 48 essing or disposal of solid waste or of waste described in paragraph (c) 49 of subdivision fifteen of section 16-303 of this title or to recycling, 50 or has an interest in a firm that is engaged in such business dealings 51 with the department or with such other agency, such person shall, prior 52 to appointment, disclose the nature of such business dealings to the 53 commissioner and to the body or officer appointing such person, and, 54 after appointment, disclose the nature of such business dealings to the 55 commissioner and to all other members of such board; provided that such 56 person need not disclose the amount of such business dealings.S. 8474 1179 1 2. When used in this section: 2 (a) "Advisory committee" means a committee, council, board or similar 3 entity that is constituted to provide advice or recommendations to the 4 city and which has no authority to take a final action on behalf of the 5 city, to take any action that would have the effect of conditioning, 6 limiting or requiring any final action by any other agency, or to take 7 any action that is authorized by law. 8 (b) "Agency" means a city, county, borough or other office, position, 9 administration, department, division, bureau, board, commission, author- 10 ity, corporation, advisory committee or other agency of government, the 11 expenses of which are paid in whole or in part from the city treasury, 12 and shall include but not be limited to, the council, the offices of 13 each elected official, the department of education, community school 14 boards, community boards, the financial services corporation, the health 15 and hospitals corporation and the public development corporation, but 16 shall not include any court or any corporation or institution maintain- 17 ing or operating a public library, museum, botanical garden, arboretum, 18 tomb, memorial building, aquarium, zoological garden or similar facili- 19 ty. 20 (c) "Blind trust" means a trust in which a candidate for any advisory 21 board created pursuant to this chapter or a member of such board, or the 22 spouse or unemancipated child of such candidate or member, has a benefi- 23 cial interest, the holdings and sources of income of which such candi- 24 date or member and such spouse and unemancipated child have no know- 25 ledge, and the trustee of which shall have independent authority and 26 discretion. 27 (d) "Business dealings" means any transaction involving the sale, 28 purchase, rental, disposition or exchange of any goods, services or 29 property, and any performance of or litigation with respect to any of 30 the foregoing, but shall not include any transaction involving the resi- 31 dence of any candidate for any advisory board created pursuant to this 32 chapter or of any member of such board, or any ministerial matter. 33 (e) "City" means the city of Staten Island and includes an agency of 34 the city. 35 (f) "Elected official" means a person holding office as mayor, comp- 36 troller, public advocate, borough president or member of the council. 37 (g) "Firm" means a sole proprietorship, joint venture, partnership, 38 corporation or any other form of enterprise, but shall not include a 39 public benefit corporation or local development corporation. 40 (h) "Interest" means an ownership interest in a firm or a position 41 with a firm. 42 (i) "Ministerial matter" means an administrative act that is carried 43 out in a prescribed manner and which does not involve substantial 44 personal discretion. 45 (j) "Ownership interest" means an interest in a firm that is held by a 46 candidate for any advisory board created pursuant to this chapter, or by 47 a member of such board, or by the spouse, domestic partner, or unemanci- 48 pated child of such candidate or member, which exceeds five percent of 49 the firm or an investment of twenty-five thousand dollars in cash or 50 other form of commitment, whichever is less, or five percent or twenty- 51 five thousand dollars of the firm's indebtedness, whichever is less, and 52 any lesser interest in a firm when such candidate or member, or such 53 spouse, domestic partner, or unemancipated child, exercises managerial 54 control or responsibility regarding any such firm, but shall not include 55 interests held in any pension plan, deferred compensation plan or mutual 56 fund, the investments of which are not controlled by such candidate orS. 8474 1180 1 member, or by such spouse, domestic partner, or unemancipated child, or 2 in any blind trust that holds or acquires an ownership interest. 3 (k) "Position" means a position in a firm, such as an officer, direc- 4 tor, trustee, employee or any management position, or as an attorney, 5 agent, broker or consultant to the firm, which does not constitute an 6 ownership interest in the firm. 7 (l) "Public servant" means all officials, officers and employees of 8 the city, including members of community boards and members of advisory 9 committees, except unpaid members of advisory committees shall not be 10 public servants. 11 (m) "Spouse" means a husband or wife of a candidate for any advisory 12 board created pursuant to this chapter or of a member of such board who 13 is not legally separated from such candidate or member. 14 (n) "Unemancipated child" means any son, daughter, step-son or step- 15 daughter who is under the age of eighteen, unmarried and living in the 16 household of a candidate for any advisory board created pursuant to this 17 chapter or of the member of such board. 18 Chapter 7 19 REGULATIONS SUBMITTED TO COUNCIL AND ENFORCEMENT 20 § 16-323 Rules submitted to council. Rules adopted by the commission- 21 er pursuant to this chapter shall become effective only after filing and 22 publication as prescribed by chapter forty-five of the charter of the 23 preceding municipality. In addition, notwithstanding the provisions of 24 chapter forty-five of such charter, prior to adoption by the commission- 25 er of a final rule pursuant to subdivision e of section one thousand 26 forty-three of such charter, and after consideration of relevant 27 comments presented pursuant to subdivision d of such section, the 28 commissioner shall submit to the council the text of the final rule 29 proposed to be published in the city record. The council shall have 30 thirty days from the date of such submission to comment upon such text. 31 The final rule may include revisions in response to comments from the 32 council and shall not be published in the city record before the thir- 33 ty-first day after such submission, unless the speaker of the council 34 authorizes earlier publication. 35 § 16-324 Enforcement. 1. Subject to the provisions of subdivision two 36 of this section, any person who violates this chapter, except section 37 16-306.1 of this title, subdivision seven of section 16-308 of this 38 title, section 16-310.1 of this title or section 16-329 of the code of 39 the preceding municipality, or any rule promulgated pursuant thereto, 40 shall be liable for a civil penalty recoverable in a civil action 41 brought in the name of the commissioner or in a proceeding returnable 42 before the environmental control board, as follows: 43 a. For residential buildings containing fewer than nine dwelling 44 units, the civil penalty shall be in an amount of twenty-five dollars 45 for the first violation, fifty dollars for the second violation commit- 46 ted on a different day within a period of twelve months, and one hundred 47 dollars for the third and each subsequent violation committed on a 48 different day within a period of twelve months, provided that the court 49 before which such civil action is brought or such board may waive the 50 penalty for the first violation upon a showing of good cause. 51 b. For residential buildings containing nine or more dwelling units 52 and commercial, manufacturing or industrial buildings, the civil penalty 53 shall be in an amount of one hundred dollars for the first violation, 54 two hundred dollars for the second violation committed on a differentS. 8474 1181 1 day within a period of twelve months, and four hundred dollars for the 2 third and each subsequent violation committed on a different day within 3 a period of twelve months, provided that the court before which such 4 civil action is brought or such board may waive the penalty for the 5 first violation upon a showing of good cause. The owner, net lessee or 6 person in charge of any residential building of nine or more dwelling 7 units or a commercial, manufacturing or industrial building with respect 8 to which four or more violations were committed on different days within 9 a period of six months shall be classified as a persistent violator. 10 c. For persistent violators only, each container or bag containing 11 solid waste that has not been source separated or placed out for 12 collection in accordance with the rules promulgated by the commissioner 13 pursuant to this chapter shall constitute a separate violation, provided 14 that no more than twenty separate violations are issued on a per bag or 15 per container basis during any twenty-four hour period. Before issuing 16 any such notices of violation to a persistent violator on a per bag or 17 per container basis, the commissioner shall give such violator a reason- 18 able opportunity to correct the condition constituting the violation. 19 d. There shall be a rebuttable presumption that the number of dwelling 20 units designated on a notice of violation issued pursuant to this 21 section reflects the number of dwelling units in the residential build- 22 ing for which the notice of violation was issued. Where such presumption 23 is rebutted, the number of dwelling units on such notice of violation 24 shall be deemed modified accordingly, and in no event shall such notice 25 of violation be dismissed solely on the ground that the number of dwell- 26 ing units on the original notice of violation was incorrectly stated. 27 e. The commissioner or the commissioner's designee shall establish a 28 recycling training program for owners or employees of residential build- 29 ings of nine or more dwelling units for which at least three notices of 30 violation for failing to properly source separate designated recyclable 31 material have been issued within a twelve-month period and which the 32 commissioner determines to be in need of recycling training. Such 33 training program shall require the building owner, or an employee who is 34 primarily responsible for waste disposal or janitorial services for any 35 such building, to attend a training program established by the commis- 36 sioner or the commissioner's designee designed to improve recycling 37 practices at such building and a fee may be imposed on any owner or 38 employee who participates in such training program. Such training 39 program may be held in any location designated by the commissioner or 40 the commissioner's designee, including, in order to facilitate tenant 41 participation, at such building. 42 2. Any person who violates subdivision seven of section 16-308 of this 43 title or any rules promulgated pursuant thereto shall be liable for a 44 civil penalty in the amount of two hundred fifty dollars for the first 45 violation, five hundred dollars for the second violation committed with- 46 in a twelve-month period, and one thousand dollars for the third and 47 each subsequent violation committed within a twelve-month period. 48 3. Any owner or other person responsible for a publicly accessible 49 textile drop-off bin who violates subdivision two of section 16-310.1 of 50 this title shall be liable as follows: 51 a. In the event that a publicly accessible textile drop-off bin is 52 impermissibly placed on city property, or property maintained by the 53 city, or on any public sidewalk or roadway, the owner of the publicly 54 accessible textile drop-off bin, if the address of such owner is ascer- 55 tainable, shall be notified by the department by certified mail, return 56 receipt requested, that such publicly accessible textile drop-off binS. 8474 1182 1 must be removed within thirty days from the mailing of such notice. A 2 copy of such notice, regardless of whether the address of such owner or 3 other responsible person is ascertainable, shall also be affixed to the 4 publicly accessible textile drop-off bin. This notice shall state that 5 if the address of the owner or other responsible person is not ascer- 6 tainable and notice is not mailed by the department, such publicly 7 accessible textile drop-off bin shall be removed within thirty days from 8 the affixing of such notice. This notice shall also state that the fail- 9 ure to remove the publicly accessible textile drop-off bin within the 10 designated time period will result in the removal and disposal of the 11 publicly accessible textile drop-off bin by the department. This notice 12 shall also state that if the owner or other responsible person objects 13 to removal on the grounds that the publicly accessible textile drop-off 14 bin is not on city property, or property maintained by the city, or on 15 any public sidewalk or roadway, such owner or other responsible person 16 may send written objection to the department at the address indicated on 17 the notice within twenty days from the mailing of such notice or, if the 18 address of such owner or other responsible person is not ascertainable 19 and notice is not mailed by the department, within twenty days from the 20 affixing of such notice, with proof that the publicly accessible textile 21 drop-off bin is not on city property, or property maintained by the 22 city, or on any public sidewalk or roadway. Proof that the publicly 23 accessible textile drop-off bin is not on city property, or property 24 maintained by the city, or on any public sidewalk or roadway shall 25 include, but not be limited to, a survey of the property prepared by a 26 licensed surveyor that is certified by the record owner of such proper- 27 ty. 28 b. Any owner or other person responsible for an impermissibly placed 29 publicly accessible textile drop-off bin that fails to respond within 30 twenty days of receipt of such notice under paragraph a of this subdivi- 31 sion or otherwise fails to establish that the publicly accessible 32 textile drop-off bin is not on city property, or property maintained by 33 the city, or on any public sidewalk or roadway pursuant to paragraph a 34 of this subdivision, shall be liable for a civil penalty in the amount 35 of one hundred dollars, recoverable in a proceeding returnable before 36 the environmental control board. 37 4. Any notice of violation or notice of hearing for a violation issued 38 to the owner, net lessee or person in charge of a premises or to a food 39 service establishment, mobile food commissary, store, or manufacturer, 40 as those terms are defined in section 16-329 of the code of the preced- 41 ing municipality, at which or by whom a violation of this chapter or any 42 rule promulgated pursuant thereto is alleged to have occurred or to have 43 been committed shall be served by delivering a copy of the notice there- 44 of at the address maintained in the records of the department of housing 45 preservation and development, the department of finance, or the depart- 46 ment of health and mental hygiene. The notice of violation or notice of 47 hearing may be served by regular mail or in accordance with section one 48 thousand forty-nine-a of the charter of the preceding municipality or, 49 if such notice is served by an agency other than the department, in 50 accordance with the rules of such agency. 51 5. a. Any covered establishment that violates section 16-306.1 of this 52 title or rules of the department, the department of health and mental 53 hygiene, or the department of consumer and worker protection promulgated 54 pursuant thereto shall be liable for a civil penalty recoverable in a 55 civil action brought in the name of the commissioner or the commissioner 56 of health and mental hygiene, or the commissioner of consumer and workerS. 8474 1183 1 protection, or in a proceeding returnable before any tribunal estab- 2 lished within the office of administrative trials and hearings in the 3 amount of two hundred fifty dollars for the first violation, five 4 hundred dollars for the second violation committed on a different day 5 within a period of twelve months, and one thousand dollars for the third 6 and each subsequent violation committed on different days within a peri- 7 od of twelve months, except that the department, the department of 8 health and mental hygiene, and the department of consumer and worker 9 protection shall not issue a notice of violation, but shall issue a 10 warning, for any violation by a designated covered establishment that 11 occurs during the first twelve months after the commissioner designates 12 such covered establishment pursuant to subdivision two of section 13 16-306.1 of this title. 14 b. Any transfer station that violates section 16-306.1 of this title 15 or rules of the department promulgated pursuant thereto shall be liable 16 for a civil penalty recoverable in a civil action brought in the name of 17 the commissioner or in a proceeding returnable before the environmental 18 control board in the amount of two hundred fifty dollars for the first 19 violation, five hundred dollars for the second violation committed on a 20 different day within a period of twelve months, and one thousand dollars 21 for the third and each subsequent violation committed on different days 22 within a period of twelve months, except that the department shall not 23 issue a notice of violation, but shall issue a warning, for any 24 violation by a designated covered establishment that occurs during the 25 first twelve months after the commissioner designates such covered 26 establishment pursuant to subdivision two of section 16-306.1 of this 27 title. 28 c. Any private carter that violates section 16-306.1 of this title or 29 rules of the business integrity commission promulgated pursuant thereto 30 shall be liable for a civil penalty recoverable in a civil action 31 brought in the name of the chair of the business integrity commission, 32 or in a proceeding brought by the chair of the business integrity 33 commission held in accordance with title sixteen-A of the code of the 34 preceding municipality, except that the chair of the business integrity 35 commission shall not issue a notice of violation, but shall issue a 36 warning, for any violation by a designated covered establishment that 37 occurs during the first twelve months after the commissioner designates 38 such covered establishment pursuant to subdivision two of section 39 16-306.1 of this title. 40 6. Any person who violates section 16-329 of the code of the preceding 41 municipality or any rule promulgated pursuant thereto shall be liable 42 for a civil penalty recoverable in a civil action brought in the name of 43 the commissioner, the commissioner of health and mental hygiene or the 44 commissioner of consumer and worker protection, or in a proceeding 45 before the environmental control board, or any tribunal established 46 within the office of administrative trials and hearings in the amount of 47 one hundred fifty dollars for the first violation, two hundred fifty 48 dollars for the second violation committed on a different day within a 49 period of twelve months, and five hundred dollars for the third and each 50 subsequent violation committed on different days within a period of 51 twelve months. 52 Title 17 - Health 53 § 17-101 Definitions. As used in this title: 54 1. "Board" shall mean the board of health.S. 8474 1184 1 2. "Commissioner" means the commissioner of the department of health. 2 3. "Department" means the department of health. 3 4. "Health code" means the health code of the city of Staten Island. 4 § 17-102 Department; commissioner. 1. There shall be a department of 5 health, the head of which shall be the commissioner of health. 6 2. The commissioner, with concurrence of the board of health, may 7 adopt a seal for use in the authentication of the orders, proceedings 8 and commissions of the department. 9 3. The commissioner shall be appointed by the mayor and shall be a 10 doctor of medicine and a holder of a degree of master of public health 11 or a degree of master of business administration with concentration in 12 the health field or a degree of master of public administration with 13 concentration in the health field or the equivalent of any one of the 14 specified foregoing degrees received from a college or university and 15 have had at least five years' experience either in public health or 16 administration or in college or university public health teaching or 17 both. 18 § 17-103 Board of health. 1. There shall be in the department a board 19 of health, the chair of which shall be the commissioner. In addition to 20 the chairperson the board shall also consist of four members, two of 21 whom shall be doctors of medicine who shall each have had not less than 22 ten years' experience in any or all of the following: clinical medicine, 23 public health administration or college or university public health 24 teaching. The other two members need not be physicians. 25 2. The four members other than the chairperson shall serve without 26 compensation and shall be appointed by the mayor, each for a term of 27 eight years. In the case of a vacancy, the mayor shall appoint a member 28 to serve for the unexpired term. 29 3. The commissioner shall designate employees of the department as 30 necessary to service the board including an employee designated by the 31 commissioner to serve as the secretary of the board. 32 4. A member of the board of health, other than the chair, may be 33 removed by the mayor on proof of official misconduct or of negligence in 34 official duties or of conduct in any manner connected with his or her 35 official duties, or of mental or physical inability to perform his or 36 her duties. Prior to removal of a board member for any of the reasons 37 stated above, the member shall be given a copy of the charges against 38 him or her and shall be entitled to a hearing before the mayor and to 39 assistance of counsel at such hearing. 40 § 17-104 Powers and duties of commissioner. 1. The commissioner 41 shall: 42 (a) have all the powers and duties vested in him or her or in the 43 department by this title, except for those vested by law in the board of 44 health or the chief medical examiner. 45 (b) prepare and submit to appropriate governmental authorities short 46 term, intermediate and long range plans and programs designed to meet 47 the needs of the city including the needs for construction and operation 48 of medical and health care facilities, except that the commissioner may 49 not construct or operate a new medical facility until the health systems 50 agency having jurisdiction over that institution has received a copy of 51 the application filed with the commissioner, in the case of private 52 institutions, or all information in form and detail as the health 53 systems agency shall require, in the case of institutions of the city of 54 Staten Island, and it shall have given the commissioner a written deci- 55 sion of approval or disapproval; andS. 8474 1185 1 (c) not be considered bound by the decision given as described above, 2 but he or she shall not approve any construction, addition or modifica- 3 tion contrary to the health systems agency without first holding a 4 public hearing. 5 2. In reaching decisions pursuant to this section, the commissioner 6 and the health systems agency shall consider: 7 (a) the public need for the existence of the new institution or the 8 construction, addition or modification of an existing institution at the 9 time and place and under the circumstances proposed; 10 (b) the character, competence and standing in the community of the 11 owners and licensees, in the case of private institutions; 12 (c) the financial resources of the institution and its sources of 13 future revenue; 14 (d) the fitness and adequacy of the premises, and equipment, person- 15 nel and standards of care to be used in the operation of the proposed 16 institution; and 17 (e) such other matters as each of them considers pertinent. 18 3. The commissioner may compel the attendance of witnesses in any 19 matter or proceeding before the commissioner. 20 4. The commissioner may assess any penalty prescribed for a violation 21 of or a failure to comply with any provision of this title or any other 22 lawful notice, order or regulation pursuant thereto, which penalty may 23 be assessed, although not to exceed one thousand dollars, after a hear- 24 ing or an opportunity to be heard. 25 § 17-105 Functions, powers and duties of the department. Except as 26 otherwise provided by law, the department shall have jurisdiction to 27 regulate all matters affecting health in the city and to perform all 28 those functions and operations performed by the city that relate to the 29 health of the people of the city including, but not limited to, the 30 following: 31 1. enforce all provisions of law applicable in the area under the 32 jurisdiction of the department for the preservation of human life; the 33 care, promotion and protection of health and to the necessary health 34 supervision of the purity and wholesomeness of the water supply. The 35 department shall also maintain and operate office health centers, health 36 stations or other facilities which may be required for the preservation 37 of health and the care of the sick; 38 2. exercise its functions, powers and duties in the area extending 39 over the city, the waters adjacent thereto, within the jurisdiction of 40 the city and within the quarantine limits established by law; 41 3. receive and expend funds made available for public health 42 purposes; 43 4. supervise and control the registration of births, fetal deaths and 44 deaths; 45 5. engage in and promote health research for the purpose of improving 46 the quality of medical and health care. In conducting such research the 47 department may conduct medical audits, receive reports on forms 48 prescribed by the department and any information received by the depart- 49 ment with regard to such research shall be kept strictly confidential, 50 used solely for medical or scientific research purposes or for the 51 improvement of the quality of medical care; 52 6. supervise the reporting and control of communicable and chronic 53 diseases and conditions hazardous to life and health; and exercise 54 control over and supervise the abatement of nuisances affecting the 55 public health;S. 8474 1186 1 7. produce, standardize and distribute certain diagnostic, preventa- 2 tive and therapeutic products and conduct laboratory examinations for 3 the diagnosis, prevention and control of disease; 4 8. promote or provide education in the prevention and control of 5 disease; 6 9. promote or provide diagnostic and therapeutic services for mater- 7 nity and child health, family planning, communicable disease, medical 8 rehabilitation, narcotics addiction and other diseases and conditions 9 affecting public health; 10 10. promote and provide medical and health services for school chil- 11 dren and the ambulant sick and needy persons of the city; 12 11. promote and provide medical and health services for the incarcer- 13 ated individuals of prisons maintained and operated by the city; 14 12. maintain and operate public health centers and clinics as shall 15 be established in the department; 16 13. prior to the sale, closing, abandonment or transfer of a city 17 hospital, hold a public hearing regarding such proposal; and publish 18 notice of such hearing in such daily newspaper published in the city as 19 selected by the commissioner, such publication to take place not less 20 than ten days nor more than thirty days prior to the date fixed for the 21 hearing; 22 14. analyze and monitor hospitals, clinics, nursing homes and homes 23 for the aged, and analyze, evaluate, supervise and regulate clinical 24 laboratories, blood banks and related facilities providing medical 25 services; 26 15. supervise and regulate the public health aspects of water supply, 27 sewage disposal and water pollution; 28 16. supervise and regulate the public health aspects of the 29 production, processing and distribution of milk, cream and milk 30 products; 31 17. supervise and regulate the public health aspects of the food and 32 drug supply of the city and other businesses or activities affecting 33 public health in the city; 34 18. supervise and regulate the public health aspects of ionizing 35 radiation, handling and disposal of radioactive wastes and the activ- 36 ities within the city affecting radioactive materials, excluding special 37 nuclear materials in quantities sufficient to form a critical mass; and 38 19. supervise and regulate the removal, transportation and disposal of 39 human remains. 40 § 17-106 Chief medical examiner. 1. There shall be in the department 41 an independent office of chief medical examiner, the head of which shall 42 be the chief medical examiner. 43 2. The chief medical examiner shall be appointed by the mayor from the 44 classified civil service and shall be a doctor of medicine and a skilled 45 pathologist and microscopist. The mayor may remove the chief medical 46 examiner upon filing in the office of the personnel director and serving 47 upon the examiner his or her reasons therefor and allowing the officer 48 an opportunity of making a public explanation. 49 3. The commissioner, with respect to the office of chief medical exam- 50 iner, shall exercise certain powers and duties pursuant to this section, 51 but he or she shall not interfere with performance by the chief medical 52 examiner or his or her office. 53 4. The chief medical examiner may appoint and remove such deputy chief 54 medical examiners, assistant medical examiners, junior medical examin- 55 ers, medical investigators, scientific experts and other officers or 56 employees as may be provided for in the budget.S. 8474 1187 1 All assistant, associate, deputy and junior medical examiners shall 2 possess the same basic qualifications as the chief medical examiner. The 3 medical investigators shall be physicians duly licensed to practice 4 medicine in the state of New York. 5 5. The office of chief medical examiner shall be kept open every day 6 in the year, including Sundays and all legal holidays, and a clerk shall 7 be in attendance at all times during the day and night. 8 6. The chief and all deputy chief, associate, assistant and junior 9 medical examiners and all investigators may administer oaths, take affi- 10 davits, proofs and examinations. 11 7. The chief medical examiner shall have such powers and duties as may 12 be provided by law with respect to bodies of persons dying from criminal 13 violence, casualty, suicide, suddenly when in apparent good health, when 14 unattended by a physician, in a correctional facility or in any suspi- 15 cious or unusual manner or where an application is made for a permit for 16 cremation of the body. 17 8. The chief medical examiner shall keep full and complete records. He 18 or she shall promptly deliver, to the district attorney, copies of all 19 records relating to every death in which, in the opinion of the chief 20 medical examiner, there is any indication of criminality. Such records 21 shall not be open to public inspection. 22 § 17-107 Health code. 1. The health code which is in force in the 23 preceding municipality on the date and time which this title takes 24 effect and all existing provisions of the health code, including penal- 25 ties affixed for violations, shall continue to be binding and in full 26 force, except as amended from time to time. 27 2. The board of health may add to, alter, amend or replace any part of 28 the health code, and may provide for the enforcement of the health code 29 or any orders made by the commissioner. The board of health shall 30 prescribe in the health code all matters and subjects to which the power 31 and authority of the department extends. 32 3. Any violation of the health code shall be treated and punished as a 33 misdemeanor. 34 § 17-108 Temporary hospitals during epidemic. The board of health, 35 during prevalence of an epidemic or in the presence of great and immi- 36 nent peril to the public health, may take possession of any buildings in 37 the city for temporary hospitals and shall pay a just compensation for 38 any private property so taken. Such temporary hospitals shall be under 39 the control of the commissioner. 40 § 17-109 Permits. The board of health may grant, suspend or revoke 41 permits for businesses and other matters in respect to any subject dealt 42 with in the health code or regulated by the department and the board may 43 prescribe reasonable fees for the issuance of said permits. 44 § 17-110 Declaration of imminent peril. In the presence of great and 45 imminent peril to public health, the board of health shall take such 46 measures and order the department of health to do such acts beyond those 47 duly provided for, in the interests of preservation of the public 48 health. No expenditure shall be incurred in the exercise of such 49 extraordinary power, unless provision is made therefor in the budget or 50 unless such expenditures are financed pursuant to section 107.00 or 51 section 29.00 of the local finance law. Such peril shall exist when and 52 for such period of time as the board of health and the mayor declare. 53 § 17-111 Right of entry. The commissioner and his or her officers may, 54 pursuant to a search warrant when required by law, enter, examine and 55 inspect all vessels, premises, grounds, structures, buildings and under-S. 8474 1188 1 ground passages for compliance with the provisions of law enforced by 2 the department. 3 § 17-112 Acceptance of private funds. No grants, gifts, devises, 4 legacies or bequests made to the city shall be accepted except with the 5 approval of the commissioner. 6 Title 18 - Parks 7 § 18-101 Definitions. As used in this title: 8 1. "Commissioner" shall mean the commissioner of the department of 9 parks, recreation and cultural affairs. 10 2. "Department" shall mean the department of parks, recreation and 11 cultural affairs. 12 § 18-102 Commissioner. The head of the department of parks, recre- 13 ation and cultural affairs shall be the commissioner. 14 § 18-103 Powers and duties of commissioner. Except with respect to the 15 functions of the board of education, the commissioner shall have the 16 power and it shall be his or her duty: 17 1. With respect to parks: 18 (a) to manage and care for all parks, squares and public places, the 19 sidewalks immediately adjoining the same and all playgrounds, playground 20 fixtures and other recreation properties, except those within the juris- 21 diction of the board of education; 22 (b) to prepare for the establishment and improvement of a park system 23 for the city with regard to proper connections with the systems of 24 federal, state and county parks and recreation areas in the city and 25 counties adjacent to the city; and 26 (c) to maintain the beauty and utility of all parks, squares, public 27 places, playgrounds and other recreational properties. 28 2. With respect to recreation: 29 (a) to plan, acquire, construct, improve and merge facilities for the 30 recreation of the public; 31 (b) to plan, develop, conduct and supervise recreation programs for 32 the public; 33 (c) to review and coordinate recreation activities and programs and 34 facilities conducted by agencies of the city and the budget estimates 35 submitted by such other agencies for such activities and make such 36 recommendations to the mayor; and 37 (d) to undertake, subject to the approval of the mayor, and to enter 38 into arrangements with other agencies of the city, state or federal 39 government and to recommend to the mayor such arrangements with private, 40 voluntary or commercial agencies, subject to the law, for the perform- 41 ance of any recreation functions conferred upon the department. 42 3. With respect to cultural affairs: 43 (a) to plan, acquire, design, construct, improve and manage facilities 44 for the conduct of cultural activities by the city and, to the extent 45 possible, to use the resources of other agencies to perform design and 46 planning functions subject to the approval of such agencies; 47 (b) to plan, develop, conduct and supervise such cultural activities; 48 and 49 (c) to foster coordination among city, state and federal agencies, 50 other organizations and institutions with respect to cultural activities 51 in the city. 52 § 18-201 Art commission. There shall be an art commission. All members 53 of the commission shall serve without compensation. The mayor shall 54 appoint and fill vacancies. The chairperson shall be the commissioner ofS. 8474 1189 1 parks, recreation and youth services. The commissioner shall accede to 2 the rights, powers and duties within the city of Staten Island of the 3 preceding arts commission of the city of New York. 4 Title 19 - Transportation 5 § 19-102 Commissioner. There shall be a department of transportation 6 the head of which shall be the commissioner of transportation. 7 § 19-103 Powers and duties of commissioner. The commissioner shall 8 have control over and be responsible for all the functions and oper- 9 ations of the city relating to transportation including, without limita- 10 tion, parking and traffic operations, highway operations, ferries and 11 related facilities and mass transportation facilities. 12 § 19-104 Parking and traffic operations. 1. The commissioner shall 13 make rules and regulations for the conduct of vehicular and pedestrian 14 traffic in the streets, squares, avenues, highways and parkways of the 15 city. Violation of such rules shall be a traffic infraction triable by a 16 judge in criminal court and also may be adjudicated pursuant to this 17 title or pursuant to articles two-A and two-B of the vehicle and traffic 18 law. 19 2. In an emergency, the police commissioner may suspend for a period 20 of forty-eight hours the provision of any rule or procedure and shall 21 immediately notify the commissioner of such suspension. 22 3. In order to expedite the movement of traffic or to safeguard pedes- 23 trians or property, a police officer may order a person to disregard any 24 traffic signal or any regulation. 25 4. The commissioner shall establish, determine, control, install and 26 maintain the type, design, size and location of any and all signs, 27 signals and other devices indicating street names and other public plac- 28 es, and for guiding, directing or otherwise regulating vehicular and 29 pedestrian traffic. 30 5. The commissioner shall make recommendations to the mayor as to the 31 design and location of lighting devices, poles and fixtures, including 32 intensity of illumination of streets and highways. 33 6. The commissioner shall prepare and submit to the mayor a proposed, 34 comprehensive city traffic plan and the commissioner shall collect and 35 compile traffic data, prepare engineering studies and surveys in regard 36 to vehicular and pedestrian traffic and submit detailed reports to the 37 mayor regarding such data. The commissioner shall also have authority 38 to: (a) submit to the mayor from time to time recommendations and 39 proposals for consideration by the mayor and other city agencies in 40 regard to methods of ameliorating adverse traffic conditions which 41 cannot be remedied by traffic regulations; (b) amend existing regu- 42 lations and rules of any city agency which may affect traffic conditions 43 in the city; (c) propose legislation which may be necessary to imple- 44 ment such proposals; and (d) recommend improvements of existing 45 streets, locations of new streets, highways, parking garages, public 46 parking areas, offstreet loading facilities and other related matters. 47 7. The commissioner shall coordinate efforts of and consider reports 48 of public and private agencies and civic groups with regard to their 49 suggestions on traffic control in the city. The commissioner shall 50 prepare analyses of traffic accidents with a view to determining their 51 causes and means for prevention and shall carry on educational activ- 52 ities for the purpose of promoting traffic safety in the city. 53 8. The commissioner shall establish parking meter zones for on-street 54 and off-street parking; determine type, size and location of parkingS. 8474 1190 1 meters; and fix the fees for parking in public parking areas, except 2 that parking meter zones for both on-street and off-street parking shall 3 not apply to vehicles operated by disabled persons displaying special 4 vehicle identification cards issued by the commissioner. 5 9. The commissioner shall collect fees, fines and penalties for 6 violation of parking rules and shall keep all monies in a special fund 7 to be known as the "traffic improvement fund". The revenues in this 8 special fund shall be used, upon authorization by the council for 9 payment of all costs of purchase, rental, engineering, installation, 10 operation, maintenance and repair of parking meters, the collection of 11 coins, the enforcement of rules pertaining to parking, the collection of 12 fines and penalties for rules violations or the payment of interest on, 13 amortization of, or payment of any indebtedness contracted by the city 14 in connection with the installation and operation of parking meters. Any 15 revenues remaining after such payments are made shall be used for capi- 16 tal and other expenditures to ameliorate traffic conditions of the city. 17 10. The commissioner, in conjunction with the commissioner of finance, 18 may enter into agreements with not more than two financing agencies to 19 provide for the acceptance by the city of credit cards as an alternate 20 means of payment of fines or fees incurred due to violation of any law, 21 rule or regulation with regard to parking of a vehicle. 22 11. The commissioner shall have the power, concurrently with the 23 police department, to enforce laws, rules and regulations with regard to 24 all movement and conduct of vehicular and pedestrian traffic. The 25 commissioner may employ, hire and retain officers or employees for the 26 purpose of enforcing laws, rules and regulations with regard to regulat- 27 ing and controlling vehicular parking and movement of pedestrian and 28 vehicular traffic. Such officers or agents are authorized to issue and 29 serve tickets, summonses and complaints for traffic infractions. 30 12. The commissioner shall issue, upon application, a special vehicle 31 identification permit to a Staten Island resident certified by the 32 department of health as suffering from a permanent disability seriously 33 impairing mobility, non-residents similarly certified may obtain vehicle 34 identification for purposes of transportation to a school or place of 35 employment in city. All applicants for such permit must possess an oper- 36 ator's or chauffeur's license with any restrictions indicating special 37 restrictions, devices or equipment required for operation of the vehi- 38 cle. 39 § 19-105 Highway operations. The commissioner shall have charge and 40 control of the following functions relating to the construction, mainte- 41 nance and repair of public roads, streets, highways, parkways, bridges 42 and tunnels: (i) regulating, grading, curbing, flagging and guttering of 43 streets, including marginal streets, and the laying of crosswalks; (ii) 44 designing, constructing, resurfacing and repairing all public roads, 45 streets, highways and parkways; (iii) the relaying of all pavement 46 removed for any cause; (iv) the filling of sunken lots, fencing vacant 47 lots, digging down of lots and the licensing of vaults under sidewalks; 48 (v) regulation of the use and transmission of gas, electricity, pneumat- 49 ic power and steam for all purposes in, upon, across, over and under all 50 streets, roads, avenues, parks and all public places; regulation of the 51 construction of electric mains, conduits, conductors and subways in any 52 streets, roads, avenues, parks or public places and the issuance of 53 permits to builders and others to use or open a street; and to open the 54 same for the purpose of carrying on the business of transmitting, 55 conducting, using and selling gas, electricity or steam or for the 56 service of pneumatic tubes, provided, however, this section is not to beS. 8474 1191 1 seen as to grant permission to open or use the streets except by persons 2 or corporations otherwise duly authorized to carry on such business 3 specified above; (vi) construction, alteration and maintenance of all 4 bridges and tunnels. The commissioner shall issue a report to mayor, 5 city council and city residents about the condition of the bridges and 6 tunnels operated and maintained by the department with such report due 7 on March first, as of December thirty-first of preceding calendar year. 8 The report shall include a description of all capital and revenue budget 9 funds appropriated for rehabilitation and maintenance of bridges and 10 tunnels as well as the program developed by the commissioner for the 11 maintenance of all bridges and tunnels in the city of Staten Island; 12 (vii) removal of encroachments on public roads, streets, highways and 13 parkways, with the exception of weed removal, grass cutting and clipping 14 and other horticultural operations which are to be executed by the parks 15 department, and de-icing and snow removal operations are to be carried 16 out by the department of sanitation; (viii) clearing, grubbing, grading, 17 filling or excavating of vacant lots and other land areas; (ix) instal- 18 lation of metal chain link fences or barriers on overpasses, footbridg- 19 es, bridges or walkways; and (x) designing, constructing and maintaining 20 a lighting system for streets, highways, parks and public places in the 21 city. 22 § 19-106 Ferries and related facilities. The commissioner shall main- 23 tain and operate the ferries of the city. The commissioner shall be 24 responsible for designing, constructing, maintaining or controlling all 25 ferry boats, ferry houses, ferry terminals and equipment; all wharf 26 property and roads or streets adjacent to such wharves, ferry houses or 27 terminals, including parking sites and related facilities. The commis- 28 sioner shall have charge and control of all marine operations within the 29 city and the power to regulate public and private ferry operations orig- 30 inating or terminating in the city. The commissioner shall establish 31 tours of ferry facilities and their related operations as well as tours 32 of the New York harbor at fees to be established by the commissioner and 33 may publicize and advertise the same. The commissioner shall construct, 34 operate and maintain marinas and public boat launching ramps and related 35 ferry facilities and collect fees for the use of such facilities. Fees 36 collected are to be deposited in a special fund for continued mainte- 37 nance, operation or reconstruction of public marine facilities. 38 § 19-107 Mass transportation facilities. The commissioner shall 39 prepare or review plans and recommendations for the nature, 40 construction, location, operation and financing of roads, highways, 41 bridges, tunnels, railroads or other facilities for mass transportation 42 for use, in whole or in part, within the city, whether or not the funds 43 provided for such facilities are derived from the city treasury. The 44 commissioner shall develop and coordinate planning and programming for 45 all forms of mass transportation within Staten Island, whether or not 46 transportation is within the sole operating jurisdiction of Staten 47 Island. The commissioner shall make recommendations to the mayor, the 48 Metropolitan Transportation Authority or any of its subsidiaries, the 49 Port Authority of New York and New Jersey and other city, state and 50 federal agencies concerning the mass transit needs of the city of Staten 51 Island. 52 § 19-108 Duties and obligations of a property owner with regard to 53 sidewalks, fencing or filling of vacant lots or cutting down raised 54 lots. The owner of any property, at his or her own cost shall:S. 8474 1192 1 1. Install, reconstruct, repave and repair the sidewalk in front of or 2 abutting such property, to include intersection quadrant in the case of 3 corner property; and 4 2. Fence any vacant lot comprising all or part of his or her property 5 and fill any sunken lots on such property or cut down any raised lot or 6 lots comprising all or part of the property whenever the transportation 7 department shall so order. In the event a property owner fails to comply 8 with such order or the provisions of this section, the transportation 9 department may have the work performed at the expense of the owner. 10 § 19-109 Right of entry. The commissioner may enter public or private 11 property for the purpose of making surveys, borings or other investi- 12 gations necessary for the performance of department duties. Refusal to 13 permit such entry shall be triable by the judge in a criminal court of 14 Staten Island. 15 Title 20 - Consumer Affairs 16 § 20-102 Definitions. Wherever used in this title: 17 1. "Commissioner" shall mean the commissioner of consumer and worker 18 protection. 19 2. "Department" shall mean the department of consumer and worker 20 protection. 21 3. "License" shall mean an authorization by the department of consumer 22 and worker protection to carry on various activities within its juris- 23 diction, which may take the form of a license, permit, registration, 24 certification or such other form as is designated under law, regulation 25 or rule. 26 4. "Organization" shall mean a business entity, including but not 27 limited to a corporation, trust, estate, partnership, cooperative, asso- 28 ciation, firm, club or society. 29 5. "Person" shall mean a natural person or an organization. 30 6. "Trade name" shall mean that name under which an organization or 31 person solicits, engages in, conducts or transacts a business or activ- 32 ity. 33 § 20-103 Powers of the commissioner. 1. The commissioner shall plan, 34 make recommendations, conduct research and develop programs for consumer 35 and worker education and protection, facilitate the exchange of informa- 36 tion in consultation with agencies, federal and state officials, commer- 37 cial interests, private groups and coordinate the consumer and worker 38 protection activities of other city agencies. 39 2. The commissioner shall enforce all laws in relations to weights and 40 measures. 41 3. The commissioner shall have control of granting, issuing, trans- 42 ferring, renewing, revoking, suspending and cancelling of all licenses 43 and permits, except in the cases with respect to which any of said 44 powers are conferred on other persons or agency by laws, and shall 45 collect all fees for licenses. 46 All licenses or permits in effect on the date of establishment shall 47 be continued until their date of expiration or sixty days, whichever 48 shall be longer. Any license or permit expiring within a thirty-day 49 period prior to the date of establishment shall be continued for a peri- 50 od of sixty days. 51 A licensee or permittee must notify and register with the department 52 if the license or permit is to extend beyond sixty days of the date of 53 establishment.S. 8474 1193 1 4. The commissioner shall enforce all laws relating to advertising and 2 offering for sale and the sale of all commodities, goods, wares and 3 services; in addition he or she shall receive complaints and initiate 4 his or her own investigations and take appropriate action, including 5 referral to a federal or state agency. 6 5. The commissioner shall be authorized to hold public and private 7 hearings, administer oaths, take testimony, serve subpoenas, receive 8 evidence, and to receive, administer, pay over and distribute monies 9 collected in and as a result of actions brought for violations of laws 10 relating to deceptive or unconscionable trade practices. 11 Title 21 - Human Services 12 § 21-102 Commissioner. There shall be a department of human services 13 the head of which shall be the commissioner of human services. 14 § 21-103 Powers and duties. The commissioner shall have the powers 15 and perform the duties of a commissioner of human services under the 16 social services law, provided that no form of outdoor relief shall be 17 dispensed by the city except under the provisions of a state or local 18 law which shall specifically provide the method, manner and conditions 19 of dispensing the same. 20 § 21-104 Public institutions under the commissioner. The commissioner 21 shall control, maintain and operate such institutions as are now or may 22 be put under his or her control. 23 § 21-202 Division for the aging. There shall be within the department 24 a division for the aging. 25 § 21-203 Power and duties. It shall be the power and duty of the divi- 26 sion for the aging: 27 1. to stimulate community interest in the problems of the aging; 28 2. to promote public awareness of resources available for the aging, 29 and to refer the public to appropriate departments and agencies of the 30 city, state and federal governments for advice, assistance and available 31 services in connection with particular problems; 32 3. to cooperate with and assist local neighborhoods in the develop- 33 ment of programs and the establishment of local offices; 34 4. to disburse available city, state and federal funds to programs 35 throughout the city and, when practical, coordinate such funds with 36 available funding from the private sector; 37 5. to promulgate rules and regulations for the operation of facili- 38 ties, services and programs under its jurisdiction; and 39 6. to maintain, operate and control such programs and facilities, as 40 may be necessary or required for the proper administration of the divi- 41 sion. 42 § 21-301. Division for youth services. 1. There shall be within the 43 department a division for youth services. 44 2. With respect to youth services the commissioner shall have all the 45 powers and duties of a youth bureau as such bureau is described in arti- 46 cle nineteen-A of the executive law and shall in addition have the 47 following powers and duties: 48 (a) to disburse available city, state and federal, and private-sector, 49 when applicable, funds to programs for youth throughout the city; 50 (b) to maintain, operate and control such youth programs and facili- 51 ties as necessary; and 52 (c) to promulgate rules and regulations for the operation of facili- 53 ties, services and programs within the department's jurisdiction.S. 8474 1194 1 § 21-402 Division of homeless services. There shall be within the 2 department a division of homeless services. 3 § 21-403 Powers and duties; director. 1. The head of the division of 4 homeless services shall be the director. The director shall have the 5 powers and perform the duties of a commissioner of human services under 6 the social services law for the purpose of fulfilling his or her respon- 7 sibilities. 8 2. The director, in the performance of his or her functions, shall: 9 (a) be responsible for transitional housing and services provided by 10 the city for eligible homeless families and individuals. The director 11 shall encourage the participation of and receive proposals from the 12 public and private sectors for the development of transitional housing 13 and services for homeless families and individuals. In performing such 14 duties, the director may develop and issue requests for such proposals 15 and evaluate responses thereto, negotiate, award, and administer 16 contracts, loans or other agreements, and obtain all necessary 17 approvals. For-profit and not-for-profit entities shall be eligible to 18 submit proposals, bid on contracts and other agreements, and apply for 19 grants and loans; 20 (b) plan and implement a redesign and restructuring of the system for 21 the provision of transitional housing and services for homeless families 22 and individuals; 23 (c) in consultation with other appropriate governmental agencies, plan 24 housing for homeless families and individuals; 25 (d) develop programs designed to improve access of homeless families 26 and individuals to existing housing; 27 (e) maintain, repair and rehabilitate transitional housing owned, 28 operated or managed by the division; 29 (f) establish performance criteria, goals and objectives with respect 30 to contract providers and monitor and evaluate such performance; and 31 (g) in consultation with other appropriate governmental agencies, 32 develop and operate outreach programs to identify and assist families 33 and individuals who are homeless and living in public spaces and partic- 34 ipate in the development of prevention programs to assist families and 35 individuals who are in imminent danger of becoming homeless. 36 3. In addition, the director is authorized, in consultation with 37 appropriate agencies, to provide any other services he or she deems 38 necessary to implement and effectuate the provisions of this title. 39 Title 22 - Economic Development 40 § 22-102 Commissioner. The head of the department shall be the commis- 41 sioner of economic development. 42 § 22-103 Powers and duties of the commissioner. The commissioner shall 43 have charge and control of and be responsible for all functions and 44 operations of the city relating to business and economic development, 45 the enhancement of economic development and financial opportunity for 46 minority and women owned business enterprises and ensuring equal employ- 47 ment opportunity by city contractors. 48 1. Such powers and functions shall include, without limitation, the 49 following: 50 (a) to establish business, industrial and commercial policies, 51 programs and projects which affect the business, industrial, commercial 52 or economic well-being, development, growth and expansion of the econom- 53 ic life of the city;S. 8474 1195 1 (b) to serve as liaison for the city with local development corpo- 2 rations, other not-for-profit corporations and all other entities 3 involved in economic development within the city; 4 (c) to study, organize, promote, coordinate and carry out within or 5 without the city, activities, projects and programs designed to encour- 6 age, stimulate and foster the well-being, development, growth and expan- 7 sion of business, industry and commerce in the city, and to enhance and 8 protect the economic life of the city; 9 (d) to assist, encourage and promote broadened employee ownership, 10 particularly through the use of employee stock ownership plans and 11 producer cooperatives, by conducting research, outreach and public 12 information programs regarding such ownership; by providing technical 13 assistance to employee groups exploring employee buyouts, and by ensur- 14 ing that firms applying for financial assistance from any entity 15 involved with economic development in the city shall be correctly 16 advised as to the potential advantages of forming an employee stock 17 ownership plan; 18 (e) to serve as a clearinghouse in connection with efforts to devise 19 solutions for problems affecting business, industry or commerce in the 20 city; 21 (f) to promote and encourage the location and development of markets 22 for city products; 23 (g) to promote and encourage the location and development of new busi- 24 ness and industry in the city, as well as the maintenance and expansion 25 of existing business and industry in the city; 26 (h) to promote, coordinate and implement activities, projects and 27 programs designed to attract foreign direct investment and promote over- 28 seas sales by firms in the city, and to otherwise encourage and stimu- 29 late the development of international business, commerce and trade in 30 the city; 31 (i) to administer and promote development of foreign trade zones with- 32 in the city; 33 (j) to study conditions affecting business, industry and commerce in 34 the city, and collect, disseminate and make studies with regard to the 35 information collected; 36 (k) to maintain a business information service in order to assist 37 business and industry in the city and to encourage businesses outside 38 the city to patronize the industrial establishments of the city; 39 (l) to make recommendations to the mayor concerning steps deemed 40 advisable for the promotion and advancement of business prosperity in 41 the city; 42 (m) to publicize the economic advantages and other factors which make 43 the city a desirable location for businesses; 44 (n) to collect, compile and distribute information dealing with the 45 facilities, advantages and attractions of the city and historic and 46 scenic points and places of interest therein; 47 (o) to plan and conduct informational programs and publicity designed 48 to attract tourists, vacationers, visitors and other interested persons 49 to the city and its attractions; 50 (p) to encourage and cooperate with public and private agencies, 51 organizations and groups to publicize the business and commercial advan- 52 tages of the city; 53 (q) to cooperate with and assist any corporation, organization or 54 agency, public or private, the objectives of which include the advance- 55 ment of business, industry prosperity, expansion of existing business,S. 8474 1196 1 the creation of new job opportunities and provide support for any such 2 efforts or purposes; and 3 (r) to issue permits for the taking of motion pictures, and for the 4 taking of photographs and for the use or operation of television cameras 5 or other transmitting television equipment in, on or about city proper- 6 ty, streets, parks, piers, wharves, docks, bridges or tunnels. 7 2. The commissioner shall have the power and duty to exercise the 8 functions of the city relating to the development, redevelopment, 9 construction, operation, maintenance, management and regulation of 10 public markets, wharf property, waterfront property and airports within 11 the city, including, without limitation, the following: 12 (a) to have charge and control of the public markets of the city, to 13 fix fees for services, licenses and privileges in connection therewith, 14 to rent space and enter into leases therefor, and to regulate all facil- 15 ities in use as public markets for the public health, safety and 16 welfare; 17 (b) to have charge and control of wharf property and waterfront prop- 18 erty owned by the city and of the building, repairing, altering, main- 19 taining, strengthening, protecting, cleaning, dredging and deepening of 20 such property; provided that the commissioner may designate parcels of 21 waterfront property to be managed pursuant to this paragraph and leased 22 pursuant to paragraph (g) of this subdivision, by the commissioner of 23 general services and contracting, provided, any such designation to be 24 made in writing and with approval of the mayor; 25 (c) to have power to enforce with respect to public markets, water- 26 front property and any structures thereon under its jurisdiction, the 27 labor law and other such laws, rules or regulations as may govern any 28 such activities undertaken, as described in paragraph (b) of this subdi- 29 vision, and to establish and amend fees to be charged for the issuance 30 of such permits or certificates of completion; 31 (d) to have power to regulate waterfront property and any structures 32 on any waterfront property used in conjunction with commerce or naviga- 33 tion; 34 (e) to have power to regulate the use of marginal streets so that they 35 may be used to best advantage in connection with waterfront property and 36 to regulate by license or otherwise the transfer of goods and merchan- 37 dise upon, over or under such streets; 38 (f) to lease, subject to council approval, any wharf property belong- 39 ing to the city for purposes of commerce or in furtherance of naviga- 40 tion; 41 (g) to grant temporary permits, terminable at will, for a period not 42 exceeding three years for purposes of commerce or navigation and not 43 exceeding one year for other purposes; 44 (h) to set aside by order any wharf property owned by the city, which 45 has not been leased, for general wharfage purposes or for a special kind 46 of commerce and to revoke or modify such order at any time; 47 (i) to regulate the charges for wharfage, cranage and dockage of all 48 vessels or floating structures using any wharf property, such rates to 49 be fixed by rules of the commissioner; 50 (j) to sell, subject to the approval of the council, buildings, struc- 51 tures and other improvements on market property to a person leasing such 52 property; 53 (k) to manage and promote the economic development of all airports, 54 airplane landing sites, seaplane bases and heliports owned by the city 55 and to lease such property, provided that no such lease may be author- 56 ized by the commissioner until a public hearing has been held and afterS. 8474 1197 1 publication of notice in a newspaper of general circulation in the city 2 at least thirty days prior to such hearing; 3 (l) to have charge and control of the regulation for the health and 4 safety of the general public at all airports, airplane landing sites, 5 seaplane bases, heliports, marginal streets and parking facilities owned 6 by the city; 7 (m) to establish, amend and enforce rules for the proper care and use 8 of all public markets, wharf property, airports, heliports, airplane 9 landing sites or seaplane bases; the violation or failure to comply with 10 any such enforcement order shall be triable in criminal court and 11 punishable by not more than thirty days' imprisonment or a fine of not 12 less than one hundred dollars nor more than five thousand dollars, or 13 both; 14 (n) to have the exclusive power to regulate all privately owned 15 airports, airplane landing sites, seaplane bases and heliports, the 16 operations out of and into such bases, as well as the control of ground 17 effect craft; 18 (o) to promote and encourage the expansion and development of the city 19 as a center for intrastate, interstate and international freight trans- 20 portation; and 21 (p) to administer and enforce the provisions of the joining resolution 22 of the city in respect to any and all structures on waterfront property 23 used in connection with the furtherance of waterfront commerce on navi- 24 gation. 25 3. With respect to energy matters, the commissioner shall have the 26 power and duty: 27 (a) to plan, formulate, coordinate and advance energy policy for the 28 city; 29 (b) to analyze the energy and fuel needs of the city with respect to 30 all types of energy, to prepare intermediate and long-range plans, goals 31 and programs designed to meet such needs and to establish priorities 32 among them; 33 (c) to develop, implement and manage energy-related programs for 34 economic development and other purposes, including the administration of 35 the public utility service and to exercise all of the functions, powers 36 and duties of such public utility service; and 37 (d) to perform such other responsibilities with respect to energy 38 matters, including responsibilities delegated elsewhere by the city 39 charter, as the mayor shall direct. 40 § 22-104 Waterfront plans. 1. No marginal street bulkhead line, pier- 41 head line or other similar line demarcating the extent of waterfront 42 development may be delineated, established or changed by the commission- 43 er except in accordance with the provisions of the city charter. The 44 commissioner may apply to the department of city planning to incorporate 45 such existing plans for the waterfront into the city map pursuant to the 46 procedure for review and approval of a change to the city map. 47 2. The commissioner may widen, open, construct, abandon or close any 48 marginal street or avenue included in such waterfront plans and shall 49 maintain the widened portion of such street and the widened portion of 50 such street shall not be a public street. Before acting under this 51 subdivision, the commissioner shall make a report to the department of 52 city planning including a map showing the proposed changes, but if the 53 department or, upon appeal of the action of the department, the appeals 54 board does not approve such proposal then it must be approved by the 55 council or the commissioner shall not proceed.S. 8474 1198 1 § 22-201 Division of economic and financial opportunity. 1. There 2 shall be a division of economic and financial opportunity within the 3 department. 4 2. The purpose of the division shall be to enhance the ability of 5 minority and women owned business enterprises to compete for city 6 contracts, to enhance city agencies' awareness of such enterprises and 7 to ensure their participation in the city procurement process. 8 3. In addition to the other purposes of this section, the division of 9 economic and financial opportunity shall also administer any programs 10 for small or locally-owned business enterprise programs as may be estab- 11 lished by law. 12 § 22-301 Division of labor services. 1. There shall be a division of 13 labor services within the department and the commissioner shall adminis- 14 ter the provisions of this section and enforce a citywide program to 15 ensure that city contractors and subcontractors take appropriate action 16 to ensure that women and minority group members are afforded equal 17 employment opportunities, and that all persons are protected from 18 discrimination prohibited under the provisions of federal, state and 19 local laws regarding recruitment, employment, job assignment, promotion, 20 upgrading, transfer, layoff, termination or rates of compensation. 21 2. The commissioner shall also monitor compliance by contractors with 22 state and federal prevailing wage requirements. 23 § 22-401 The city of Staten Island public utility service. The commis- 24 sioner or his or her designee shall serve as the director of the public 25 utility service established by provisions of the code of the preceding 26 municipality. 27 § 22-402 Authorization for public utility service. Pursuant to article 28 fourteen-A of the general municipal law, the city hereby establishes a 29 public utility service, as such term is defined in section three hundred 30 sixty of such article, which is authorized to establish, construct, 31 lease, purchase, own, acquire, use or operate facilities within or with- 32 out the territorial limits of the city, for the purpose of furnishing to 33 itself or for compensation to its inhabitants any service similar to 34 that furnished by any public utility company specified in article four 35 of the public service law. For such purpose the city may purchase elec- 36 trical and other forms of energy from the state, or from any state agen- 37 cy, or other municipal corporation, or from any private or public corpo- 38 ration, and may sell or distribute such power to itself and to 39 residential, commercial, industrial and other customers. The city shall 40 possess any and all powers granted to a public utility service pursuant 41 to article fourteen-A of the general municipal law and any other appli- 42 cable provision of law. 43 § 22-403 Acquisition of energy and facilities. The city shall 44 contract for or otherwise purchase or acquire hydroelectric or other 45 forms of energy as shall be available from the power authority of the 46 state of New York, the state, any state agency, any other municipal 47 corporation, or any private or public corporation, and shall arrange to 48 use, lease or acquire the transmission, substation and distribution 49 facilities necessary to furnish such power to the city and, for compen- 50 sation, to residential, commercial, industrial and other customers; 51 provided, however, that the city will not acquire or build any electric 52 or gas transmission or distribution facilities which are parallel to, or 53 duplicative of electric or gas transmission or distribution facilities 54 of any utility companies within the city, nor take any action to impair 55 any agreements, franchises, rights or obligations of any utility company 56 within the city including, to provide safe, adequate and efficientS. 8474 1199 1 service to conduct its business in the city and to protect its assets 2 unless so authorized by further local law and public referendum. 3 § 22-404 Distribution and sale of energy. The city shall arrange with 4 any utility companies for the distribution of energy through the use, 5 lease, or acquisition of transmission, substation and distribution 6 facilities within the service areas of such companies and for such 7 companies to act on behalf of the city for collection of charges for 8 such energy within such service areas, or for the sale of energy to such 9 companies for resale to customers within the service areas of such 10 companies. 11 § 22-405 Rates. The fixing of rates for furnishing hydroelectric and 12 other forms of energy to residential, commercial, industrial and other 13 customers shall include consideration of (1) the actual cost to the city 14 for the purchase, distribution and delivery of such energy to such 15 customers, (2) the actual expenses necessary for administration of the 16 public utility service, including expenses for research and development, 17 and (3) any other costs or charges allowed under law, including but not 18 limited to, losses of tax revenues resulting from the operation of the 19 public utility service. Such rates shall be computed to provide revenue 20 in an amount not less than that necessary to recover fully such costs 21 and expenses. Such rates shall be subject to approval of the city coun- 22 cil. 23 § 22-406 Municipal energy fund. Revenues received from the operation 24 of the public utility service shall be paid into a fund to be known as 25 the municipal energy fund. The revenues paid into such fund shall not 26 be revenues of the city, and payments from such fund shall be made with- 27 out appropriation and shall not be included in the expense budget of the 28 city. Nothing in this section shall prohibit the city from appropriating 29 expense or capital funds in connection with the public utility service, 30 nor shall payments from the municipal energy fund to the general fund be 31 prohibited. 32 § 22-501 Bureau of ports and trade. There shall be a bureau of ports 33 and trade within the department of economic development. 34 § 22-502 Definitions. As used in this title: 35 1. "Director" shall mean the director of the bureau of ports and 36 trade. 37 2. "Bureau" shall mean the bureau of ports and trade. 38 § 22-503 Director. The head of the bureau shall be the director of 39 ports and trade. 40 § 22-504 Powers and duties of the director. The director shall have 41 the power and duty to: 42 1. exercise the powers of a commissioner of public markets and a city 43 department of public markets under the agriculture and markets law; 44 2. have charge and control of the wharf property and waterfront prop- 45 erty owned by the city to the extent permitted by state law; 46 3. have power to regulate waterfront property and the structures on 47 the property such as wharves, piers, docks and bulkheads; 48 4. (a) have power to enforce, on waterfront property, the labor law 49 and other such laws, rules and regulations as may govern dredging, fill- 50 ing, removal, safety, maintenance, sanitary conditions, use and occupan- 51 cy of such structures on waterfront property; (b) issue permits or 52 certificates of completion in reference thereto; and (c) establish or 53 amend fees to be charged for the issuance of such permits with such fees 54 to be established by rules of the director;S. 8474 1200 1 5. have power to regulate the use of marginal streets in connection 2 with wharf property and to regulate by license any transfer of goods or 3 merchandise on, over or under such marginal streets; 4 6. enforce provisions of the zoning resolutions of the city in respect 5 to structures used in conjunction with waterfront commerce or naviga- 6 tion; 7 7. lease, subject to approval of or authorization by the city council, 8 any wharf property belonging to the city for purposes of waterfront 9 commerce or in furtherance of navigation; leases shall be for such terms 10 and contain such conditions as provided by law and leases may be sold at 11 public auction; 12 8. grant temporary permits to use and occupy any wharf property 13 belonging to the city, such permits not to exceed one year and to termi- 14 nate at will; 15 9. set aside by order any wharf property belonging to the city, which 16 has not yet been leased, for any special kind of commerce, any class of 17 vessel or for general wharfage purposes; 18 10. regulate charges for wharfage, cranage and dockage of all vessels 19 or floating structures using any wharf property; 20 11. establish, amend and enforce all necessary rules for proper care 21 of all public markets, wharf property, waterfront property, airports, 22 airplane landing sites, seaplane bases and heliports owned by the city; 23 12. sell, subject to approval of or authorization by the city council, 24 buildings, structures and other improvements on market property or wharf 25 property; 26 13. manage and promote the economic development of all airports, 27 airplane landing sites, seaplane bases and heliports owned by the city; 28 14. have charge and control of the regulation for the health and safe- 29 ty of the general public at all airports, airplane landing sites, seap- 30 lane bases, heliports, marginal streets and parking facilities appurten- 31 ant thereto owned by city; 32 15. have power to regulate all privately owned airports, airplane 33 landing sites and seaplane bases; 34 16. promote, coordinate and implement projects, activities and 35 programs designed to attract foreign investment and overseas sales and 36 to otherwise encourage the development, growth and expansion of interna- 37 tional business, commerce and trade in the city; and 38 17. administer and promote development of foreign trade zones in the 39 city. 40 § 22-505 Waterfront plans. All plans for the waterfront of the city 41 are continued in effect and may be changed by the director pursuant to 42 the procedure provided in this section. 43 The procedure for review and approval of any change to the plans for 44 the water front shall be the same as in the case of a change to the city 45 map and the director may apply to the department of city planning to 46 incorporate plans for the waterfront pursuant to the procedure for 47 review and approval of a change to the city map. 48 The director may widen, open, construct, abandon or close any marginal 49 street or avenue included in any plans for changes and the director 50 shall also maintain such widened portion of such streets. The director 51 may proceed with any proposed changes only if the department of city 52 planning approves the change; however, if the department of city plan- 53 ning does not approve, the director may not proceed unless the city 54 council authorizes, by a two-thirds vote, the director to proceed. 55 The department of city planning shall act on such proposed changes 56 within six weeks from the time of filing with the department of cityS. 8474 1201 1 planning and if it does not act within the six weeks, the director may 2 proceed with the changes. 3 Title 23 - Reserved 4 Title 24 - Environmental Protection 5 § 24-101 Definitions. As used in this title: 6 1. "Commissioner" shall mean the commissioner of the department of 7 environmental protection. 8 2. "Department" shall mean the department of environmental protection. 9 § 24-102 Commissioner. 1. The head of the department of environmental 10 protection shall be the commissioner of environmental protection. 11 2. The commissioner shall have the control of and be responsible for 12 all those functions and operations of the city relating to (a) provision 13 of adequate water supply; (b) disposal of sewage; (c) prevention of air, 14 water and noise pollution; (d) response to emergencies caused by 15 releases or threatened releases of hazardous substances; and (e) 16 collection and management of information concerning the amount, location 17 and nature of hazardous substances. 18 § 24-103 Powers and duties of commissioner. The powers and duties of 19 the commissioner shall include, without limitation, the following: 20 1. Water resources control. (a) The commissioner shall have charge and 21 control, including the power to examine, of (i) all structures and prop- 22 erty connected with the supply and distribution of water for public use, 23 including all fire hydrants and water meters; (ii) furnishing the water 24 supply and maintaining its quality, including ample reserve contingen- 25 cies for future demand; and (iii) making and enforcing rules and regu- 26 lations governing and restricting use of water supply. 27 (b) The commissioner may examine any sources of water supply of 28 private companies supplying any portion of the city and may exercise 29 superintendence, regulation and control in respect thereof. 30 (c) The commissioner shall regulate and control emissions into water 31 of harmful or objectionable substances, contaminants or pollutants and 32 shall enforce all laws and regulations with respect to such emissions. 33 (d) The commissioner may make investigations and studies as necessary 34 for purpose of enforcement, control or elimination of pollution of the 35 waters and, for such purpose, may compel witnesses and take their testi- 36 mony under oath. 37 2. Sewage control. The commissioner shall have charge and control over 38 location, construction, alteration, repair, maintenance and operation of 39 all public and private sewers, intercepting sewers, disposal plants and 40 drainage systems. 41 The commissioner may adopt regulations with regard to the discharge 42 of sewage, refuse, factory waste and trade waste into the public sewers 43 for such discharge. The commissioner may also restrict, regulate or 44 prohibit the use of public sewers for such discharge and may prescribe 45 civil penalties for the violation thereof. 46 3. Air resources control. The commissioner shall regulate and control 47 the emission into the open air of harmful or objectionable substances, 48 including but not limited to, smoke, soot, dust, fumes, ash, gas vapors 49 and any products of combustion resulting from any fuel burning equip- 50 ment. 51 The commissioner shall enforce all laws, rules and regulations with 52 respect to such emissions. The commissioner shall make investigations 53 and studies as necessary for controlling and eliminating air pollution 54 and may compel witnesses and take their testimony under oath.S. 8474 1202 1 4. Noise pollution control. The commissioner shall enforce all laws, 2 rules and regulations to eliminate noise pollution. The commissioner 3 shall make investigations, compel witnesses and take their testimony 4 under oath for such purposes. 5 The commissioner shall also undertake studies to determine permissible 6 sound levels and shall correct problems related to noise control. 7 5. Environmental consequences. The commissioner may review and comment 8 upon the environmental consequences of any activity that may have an 9 impact on the physical aspects of the environment and may be responsible 10 for investigating, evaluating and reporting such activities related to 11 fuel supply and demand, alternative sources of energy and resource 12 recovery. 13 6. Energy. The commissioner shall have the power and duty of formulat- 14 ing an energy policy for the city. 15 The commissioner shall analyze the needs of the city with regard to 16 all kinds of energy and fuel needs. The commissioner shall prepare 17 intermediate and long range plans, goals and programs to meet such 18 needs. The commissioner shall also study, organize, promote and carry 19 out activities and programs designed to encourage fuel and energy 20 conservation. 21 7. Emergency response. The commissioner shall (a) respond to emergen- 22 cies caused by releases of hazardous substances into the environment; 23 (b) take measures to protect the public health or welfare; and (c) 24 recover costs of such response measures from the responsible persons. 25 8. Community right-to-know. The commissioner shall (a) have the power 26 to collect, compile and manage information concerning the nature of 27 hazardous substances present in the city, and (b) make such information 28 available to the public and to city personnel responsible for responding 29 to hazardous substance emergencies. 30 § 24-104 Environmental control board. 1. There shall be within the 31 department an environmental control board, the chairperson of which 32 shall be the commissioner, consisting of the commissioners of such 33 departments as the mayor and council shall determine. 34 2. The environmental control board may adopt and amend regulations not 35 inconsistent with any provision of law with regard to (a) regulating 36 emissions or pollutants into the air or waters from any land or water 37 sources, and (b) regulating or prohibiting the installation or 38 construction of any equipment giving forth such emissions or pollutants. 39 3. The board, concurrent with the jurisdiction of the criminal courts 40 of the city, shall enforce the provisions of the city charter, this code 41 and the code of the preceding municipality which relate to (a) cleanli- 42 ness of the streets; (b) disposal of wastes; (c) provision of adequate, 43 pure supply of water; (d) prevention of air, water and noise pollution; 44 (e) regulation of street peddling; (f) prevention of fire and danger to 45 life as designated by the fire commissioner; (g) construction and 46 inspection of structures of the city for sanitary conditions, safety, 47 occupancy and as designated by the buildings and real property commis- 48 sioner; (h) response to emergencies caused by release of hazardous 49 substances; and (i) reporting of all information with regard to amount, 50 labeling and location of all hazardous substances. 51 4. The board shall have concurrent jurisdiction with the board of 52 health to enforce provisions of the health code which the board of 53 health shall designate. 54 § 24-105 Proceedings for violations. The environmental control board 55 shall conduct proceedings for the adjudication of violations of the 56 laws, rules and regulations enforced by the board.S. 8474 1203 1 The form and wording of notices of violation shall be prescribed by 2 the board. Notices shall contain information advising the persons 3 charged with the manner and the time in which such person has to admit 4 or deny the charges. The notice shall also contain a warning that fail- 5 ure to plead in the time stated may result in a default decision entered 6 against such person, or failure to plead may be deemed an admission of 7 liability and shall be grounds for imposing a maximum penalty. 8 A judgment entered by the board pursuant to this section shall remain 9 in full force and effect for eight years. 10 The board may not enter any final decision or order pursuant to this 11 section unless the notice of violation shall have been served in the 12 manner as is prescribed for service of process by the civil practice law 13 and rules, with certain exceptions. 14 Title 25 - Reserved 15 Title 26 - Housing, Buildings, Construction and Maintenance 16 § 26-101 Definitions. As used in this title: 17 1. "Commissioner" shall mean the commissioner of the department of 18 buildings and real property. 19 2. "Department" shall mean the department of buildings and real prop- 20 erty. 21 3. "Class" refers to the classification of buildings in the building 22 code or other applicable laws and shall also refer to the terms "class" 23 or "kinds" as used in the multiple dwelling law. 24 4. "Division" shall mean the division of housing preservation and 25 development. 26 § 26-102 Commissioner. The head of the department shall be the commis- 27 sioner of buildings and real property. 28 § 26-103 Department functions. The department shall enforce, with 29 respect to buildings and structures, the building code, zoning resol- 30 utions, multiple dwelling law, labor law and other regulations that may 31 govern the construction, alteration, maintenance, use, occupancy, safe- 32 ty, sanitary conditions or inspection of buildings or structures in the 33 city. 34 The department shall perform the functions of the city of Staten 35 Island relating to: 36 1. necessary legal action regarding designation of unsafe buildings or 37 structures and the removal or remedy thereof by demolition or sealing; 38 2. the shoring of unsafe buildings or structures; 39 3. testing and approval of all power-operated cranes, derricks or 40 other hoisting equipment used to raise and lower articles on the outside 41 of buildings, not to include cranes and derricks used in industrial 42 plants or yards; 43 4. location, construction, alteration and removal of signs, either 44 illuminated or non-illuminated, attached to the exterior of any build- 45 ings; 46 5. all surface and sub-surface construction within the curbline, 47 driveways and entrances thereto and the issuance of permits in reference 48 thereto; 49 6. regulation, testing and inspection of gas and electricity used for 50 light, heat or power purposes and all electric, gas and steam meters, 51 electric wires and lights furnished for the city; and 52 7. regulation, inspection and testing of wiring and appliances for 53 light, heat and power in or on any building or structure in the city, 54 except that the jurisdiction of the department shall not extend toS. 8474 1204 1 waterfront property; which property and structures shall be under the 2 jurisdiction of the department of ports and trade. 3 § 26-104 Powers and duties. 1. There shall be a main office of the 4 department. 5 2. Persons appointed as inspectors to perform functions of the depart- 6 ment shall have such qualifications as prescribed by the commissioner; 7 however, such qualifications shall include: 8 (a) a minimum of five years experience working at a construction 9 trade; 10 (b) a license as a professional engineer or architect issued pursuant 11 to the education law; 12 (c) a minimum of three years experience working at a construction 13 trade and a minimum of two years formal training in a construction 14 program in a college, technical college or trade school; or 15 (d) a minimum of two years experience working at a construction trade 16 or a minimum two years formal education in a construction program in a 17 college, trade or technical school and a minimum of three years partic- 18 ipation in an apprentice inspection program approved by the commissioner 19 and personnel director. 20 3. The commissioner shall have the following powers and duties, with 21 respect to buildings and structures: 22 (a) to examine, approve or disapprove construction or alteration plans 23 for any building or structure and to direct the inspection of such 24 building or structure; 25 (b) to require that the construction or alteration of any building, 26 including the installation or alteration of any service equipment there- 27 in, shall be in accordance with the provisions of laws and regulations 28 applicable thereto; and 29 (c) to issue certificates of occupancy for any building or structure 30 in the city, provided that: 31 (i) no building or structure may be occupied or used until a certif- 32 icate of occupancy has been issued; 33 (ii) if a building or structure for which a certificate of occupancy 34 has not previously been required or issued shall be altered in such a 35 way as to now require a certificate, the building may not be used for 36 any purpose until such certificate is issued; 37 (iii) no buildings altered or converted from one class to another 38 shall be occupied until a certificate has been issued; and, in cases 39 where the alteration did not necessitate the total vacating of the 40 building, the certificate must be issued within thirty days of the 41 completion of such work or the occupancy of the building may not contin- 42 ue; 43 (iv) the certificate of occupancy of a building or structure shall 44 certify that such structure conforms to requirements of all laws, rules 45 and regulations applicable thereto. Every certificate of occupancy 46 shall be binding and remain binding and conclusive upon all agencies and 47 officers of the city, unless vacated or modified by a court of competent 48 jurisdiction or a board of appeals, and upon the department of labor of 49 the state of New York; 50 (v) the commissioner may issue a temporary certificate of occupancy 51 for any part of a building, provided that such temporary use or occupan- 52 cy does not jeopardize life or property; 53 (vi) the commissioner may, in specific cases, permit experimental or 54 demonstration construction to obtain knowledge and information; the 55 commissioner may also submit reports on results thereof to the depart- 56 ment of buildings and real property; andS. 8474 1205 1 (vii) the commissioner shall have the power and duty to conduct 2 inquiries to assist him or her in his or her department duties where 3 public safety is involved and he or she shall have subpoena power to 4 compel witnesses, administer oaths, and compel production of books, 5 papers and documents. 6 All certificates of occupancy in effect on the date of establishment 7 are continued. 8 § 26-105 Appeals. Appeals may be taken from the decisions of the 9 commissioner to a three person board of appeals to be appointed by the 10 mayor; one of whom shall be an architect and one of whom shall be a 11 professional engineer. 12 § 26-106 Inspection. The commissioner, or any officer of the depart- 13 ment authorized in writing by the commissioner, may enter and inspect 14 any building, structure, enclosure, premises or any part thereof or 15 anything attached thereto. 16 Any refusal to permit such entry or inspection shall be a misdemeanor 17 triable in criminal court and punishable, upon conviction, of not more 18 than thirty days imprisonment, a fine of not more than one hundred 19 dollars, or both. 20 § 26-107 Public buildings and facilities. The department shall: 21 1. have charge and control over the plans and specifications for and 22 the construction of all buildings and facilities paid for in whole or in 23 part from the city treasury; 24 2. manage, alter, rejoin, operate, maintain and clean buildings, 25 facilities and offices leased or occupied for public use by more than 26 one city agency whose management, alteration, repair, operation, mainte- 27 nance or cleaning is paid for in whole or in part from the city treas- 28 ury, and as directed by the mayor, to perform services in space occupied 29 for public use by a single city agency; 30 3. except for the provisions of title five of the code of the preced- 31 ing municipality, employ, when in the commissioner's opinion such 32 services are necessary or desirable, qualified consultants in private 33 practice to aid the commissioner in carrying out his or her duties and 34 responsibilities with respect to public buildings or facilities; such 35 consulting or advisory services shall be performed under the supervision 36 of the commissioner; 37 4. consult with the agencies for whose use the buildings or structures 38 are intended in preparing and considering plans and specifications and 39 in carrying out such plans and specifications, and to consider any 40 recommendations made by such agency. 41 Notwithstanding the provisions of this section, the exercise of the 42 powers and duties set forth herein shall be subject to the jurisdiction 43 of any city agency performing urban renewal and public and publicly-aid- 44 ed housing functions to the extent, and in such areas, as directed by 45 the mayor; 46 5. exercise and perform such other powers and duties as may be 47 prescribed by law or delegated to him or her in relation to laboratory 48 testing of commodities and construction materials. 49 § 26-108 Real property. The department, with respect to real property, 50 shall have power to: 51 1. purchase, lease, condemn or otherwise acquire real property for the 52 city, subject to the joint approval or authorization of the mayor and 53 the council, and to sell, lease, exchange or otherwise dispose of real 54 property of the city, subject to the joint approval or authorization of 55 the mayor and the council;S. 8474 1206 1 2. assign and reallocate to city agencies space and real property 2 owned or leased by the city, to establish comprehensive and continuing 3 programs and standards for utilization of space owned or leased by the 4 city and to conduct surveys of space utilization; 5 3. manage all real property of the city not used for public purposes, 6 including real property required for a public purpose and not being 7 currently utilized for such purpose, except wharf property; provided, 8 that the commissioner shall be responsible for the management, leasing 9 or permitting of any parcels of wharf property and water front property 10 as provided in any designation made by the commissioner of economic 11 development; 12 4. exercise and perform such other powers and duties as may be 13 prescribed by law or delegated to the commissioner in relation to the 14 acquisition, disposition, management, site selection, assignment, demo- 15 lition or other treatment of real property of the city; 16 5. employ, where desirable, managing agents to manage city properties 17 and collect rents and pay bills; and 18 6. keep, maintain and annually update a master list of leases wherein 19 the city or its agencies is a tenant. 20 § 26-109 Building code. The building code which is in force in the 21 preceding municipality on the date and time when this title takes effect 22 and all existing provisions of the building code, including penalties 23 affixed for violations, shall continue to be binding and in full force, 24 except as amended from time to time by the city of Staten Island. 25 A copy of such code shall be on file in the office of the city clerk. 26 § 26-201 Division of housing preservation and development. There shall 27 be a division of housing preservation and development within the depart- 28 ment. 29 § 26-202 Powers and duties of the division. The division is vested 30 with: 31 1. all functions of the city relating to the rehabilitation, mainte- 32 nance, alteration and improvement of residential buildings and privately 33 owned housing, pursuant to various articles of the private housing 34 finance law; acting as liaison with the New York city rehabilitation 35 mortgage insurance corporation; the execution of emergency repairs to 36 and the sealing, removal and demolition of buildings, structures and 37 private housing and the enforcement of the applicable provisions of the 38 multiple dwelling law or others laws relating to the maintenance, use, 39 occupancy, safety or sanitary condition of any building which is occu- 40 pied, or intended to be occupied, as a home, residence or dwelling 41 place; 42 2. functions and duties with respect to the relocation of tenants of 43 real property and the selection of tenants for publicly owned or public- 44 ly aided housing; 45 3. all functions and duties of the city as related to slum clearance, 46 slum prevention and urban renewal, neighborhood conservation, rehabili- 47 tation and prevention of blighted, deteriorated or unsanitary areas, and 48 public housing, including regulation of rents in housing built with 49 state or local financing; and 50 4. functions, rights and powers granted to or delegated to the housing 51 and redevelopment board, the housing and development administration and 52 the New York city housing authority. 53 § 26-203 Housing preservation and development; commissioner. With 54 respect to matters of housing preservation and development. The commis- 55 sioner shall:S. 8474 1207 1 1. have the power to establish and administer programs designed to 2 encourage the rehabilitation and preservation of existing housing; 3 2. administer laws authorizing tax exemption or tax abatement and 4 process applications for such abatements and exemptions pursuant to 5 provisions of this code; 6 3. manage and superintend all real property acquired by the city for 7 housing and urban renewal purposes; 8 4. represent the city in carrying out the provisions of the private 9 housing finance law and act as the "supervising agency" pursuant to the 10 private housing finance law; 11 5. represent the city in carrying out the provisions of the general 12 municipal law, including acquiring, leasing or disposing of real proper- 13 ty; 14 6. undertake projects and exercise rights, powers, and privileges of 15 the applicable public housing law; 16 7. impose and collect charges and fees for financing, regulation, 17 supervision and audit of municipality-aided projects and loan programs 18 administered by the commissioner, with such moneys to be set aside in an 19 account for administrative expenses for the department; 20 8. acquire real property on behalf of other city agencies; 21 9. sell, lease, exchange or dispose of residential real property of 22 the city, provided that no such sale shall be authorized without the 23 mayor's and council's approval and until a public hearing has been held 24 and public notice given; 25 10. manage and superintend all residential real property of the city 26 not used for public purposes. The provisions of this subdivision are not 27 applicable to wharf property, real property under jurisdiction of the 28 Metropolitan Transportation Authority or the jurisdiction of the New 29 York city housing authority or the jurisdiction of the Triborough Bridge 30 and Tunnel Authority; 31 11. manage, demolish, seal or otherwise treat residential real proper- 32 ty as necessary; and 33 12. employ professional community and other personnel to manage resi- 34 dential real property. 35 § 26-204 Inspection. 1. Inspections. A housing maintenance inspector 36 shall have such qualifications as prescribed by the department of 37 personnel after consultation with the commissioner. 38 2. Entry. The commissioner or any inspector may enter and inspect any 39 building, structure, enclosure, premises, or any part thereof and 40 refusal to permit such inspection shall be a misdemeanor triable in 41 criminal court, punishable by not more than thirty days imprisonment or 42 a fine of not more than one hundred dollars or both. 43 § 26-205 Acquisitions of real property. No purchase, lease, condemna- 44 tion or acquisition of real property shall be authorized until (i) a 45 public hearing has been held, and (ii) the department shall have 46 received the joint approval or authorization of the mayor and the coun- 47 cil. 48 In the case of acquisition by purchase or condemnation, a hearing as 49 described above shall not be required if a public hearing is already 50 being held with respect to such purchase pursuant to any other require- 51 ment of law. 52 Title 27 - Health and Mental Hygiene 53 § 27-101 Definitions. As used in this title:S. 8474 1208 1 1. "Commissioner" shall mean the commissioner of the department of 2 health and mental hygiene. 3 2. "Department" shall mean the department of health and mental 4 hygiene. 5 § 27-102 Powers and duties of commissioner. The commissioner shall 6 have the powers and duties of the department which shall include but 7 shall not be limited to: 8 1. Determining the needs of the mentally disabled in the city, which 9 determination shall include the review and evaluation of all mental 10 hygiene services and facilities within the commissioner's jurisdiction; 11 2. Engaging in short-range, intermediate-range and long-range mental 12 hygiene planning; 13 3. Developing and submitting to the mayor and council a program for 14 the delivery of services for the developmentally disabled, including 15 construction and operation of facilities; 16 4. Arranging with the approval of the mayor, for the rendition of 17 services and operation of facilities by other agencies of the city; 18 5. Within the amounts appropriated therefor, entering into contracts 19 for the rendition or operation of services and facilities on a per capi- 20 ta basis or otherwise; 21 6. Within the amounts appropriated therefor, executing such programs 22 and maintaining such facilities as may be authorized under such appro- 23 priations; 24 7. Using the services and facilities of public or private voluntary 25 institutions whenever practical, and encouraging all providers of 26 services to cooperate with or participate in the program, whether by 27 contract or otherwise; 28 8. Implementing and administering an inclusive citywide planning proc- 29 ess for the delivery of services for the developmentally disabled; 30 consistent with applicable law, standards and procedures for community 31 participation at the local community level; 32 9. Encouraging the development and expansion of programs for the 33 prevention, diagnosis, care, treatment, social and vocational rehabili- 34 tation, special education and training of the developmentally disabled 35 and for public education or developmental disability; 36 10. Establishing coordination and cooperation among all providers of 37 services, coordinating the department's program with the program of the 38 state department of mental hygiene so that there is a continuity of care 39 among all providers of services; and seeking to cooperate by mutual 40 agreement with the state department of mental hygiene and their repre- 41 sentatives in preadmission screening and in post-hospital care of 42 persons suffering from developmental disability; 43 11. Making policy and planning for, monitoring, evaluating and exer- 44 cising general supervision over all services and facilities for the 45 developmentally disabled within the commissioner's jurisdiction; and 46 exercising general supervisory authority through the promulgation of 47 appropriate standards consistent with accepted professional practices 48 for care and treatment of patients; 49 12. To the extent necessary, when not inconsistent with any other law, 50 arranging for the visitation, inspection and investigation of all 51 providers of services, by the department or otherwise; 52 13. Conducting such inquiries as may be useful, including investi- 53 gations into individual patient care, in performing the functions of the 54 department and for such purpose the commissioner shall have subpoena 55 power to compel the attendance of witnesses, to administer oaths and to 56 compel the production of books, papers and documents and consistent withS. 8474 1209 1 the provisions of the mental hygiene law, having access to otherwise 2 confidential patient records, provided such information is requested 3 pursuant to the functions, powers and duties conferred upon the commis- 4 sioner by law; 5 14. Submitting all materials required by the mental hygiene law for 6 purposes of state reimbursement; 7 15. Serving as a member of such state or federally authorized commit- 8 tees as may be appropriate to the discharge of the commissioner's func- 9 tions; 10 16. Performing such other acts as may be necessary and proper to carry 11 out the provisions of this title and the purposes of the mental hygiene 12 law; 13 17. Develop, promote, provide, coordinate and evaluate addiction 14 programs for the prevention of addiction, treatment and rehabilitation 15 for persons addicted to narcotics and other dangerous drugs, including, 16 but not limited to, the following functions: 17 (a) participate in cooperative efforts of federal, state, regional and 18 city agencies and programs dealing with the problems of addiction to 19 narcotics and other dangerous drugs; 20 (b) evaluate present and proposed research designs, demonstration 21 projects, treatment and service programs and other requests related to 22 such prevention and care, before public funds are made available there- 23 for; 24 (c) promote or provide research and demonstration projects designed to 25 obtain information relating to the prevention of addiction and the 26 related treatment provided to drug addicts by public or voluntary 27 private agencies supported by city funds; 28 (d) promote or provide an educational and prevention program to 29 acquaint the public with the problems of addiction; 30 (e) promote or provide treatment agents for persons addicted to 31 narcotics, including, but not limited to, drug free programs, chemother- 32 apeutic programs and a school based drug prevention program; 33 (f) annually report to the city council, by March first as of the 34 preceding December thirty-first, on all treatment agents promoted or 35 provided during the year and proposed to be provided or promoted during 36 the current year, with particular attention given to the balance between 37 the treatment agents and their relative effectiveness; and 38 (g) promote or provide training programs for persons in public or 39 voluntary private agencies and institutions engaged in the prevention, 40 treatment and rehabilitation of persons addicted to narcotics. 41 § 27-103 Functions of the department. Except as otherwise provided by 42 this title and law, the department shall perform all those functions and 43 operations that relate to health and mental hygiene related needs of the 44 people of the city. 45 § 27-104 Construction clause. The provisions of this title shall be 46 carried out subject to and in conjunction with the provisions of the 47 mental hygiene law. 48 § 15-001. The sum of six million dollars ($6,000,000), or so much 49 thereof as may be necessary, is hereby appropriated as an advance out of 50 any moneys in the general fund to the credit of the local assistance 51 account not otherwise appropriated and shall be made immediately avail- 52 able, for the expenses of the city of Staten Island, in carrying out the 53 provisions of this act relating to the transition government and estab- 54 lishment of such city. Notwithstanding any provision of law such moneys 55 shall be payable on the audit and warrant of the comptroller on vouchers 56 certified or approved in the manner prescribed by law. Such advanceS. 8474 1210 1 shall be repaid from funds which shall be withheld by the state comp- 2 troller in equal payments over a period of five years out of the first 3 moneys available for the next succeeding payments of state aid appor- 4 tioned to the city of Staten Island as per capita aid for the support of 5 local government pursuant to section 54 of the state finance law. 6 § 15-002. The sum of one million dollars ($1,000,000), or so much 7 thereof as may be necessary, is hereby appropriated as an advance out of 8 any moneys in the general fund to the credit of the local assistance 9 account not otherwise appropriated and shall be made immediately avail- 10 able, for the expenses of the city school district of the city of Staten 11 Island, in carrying out the provisions of this act relating to the 12 establishment of the city school district of such city. Notwithstanding 13 any provision of law such moneys shall be payable on the audit and 14 warrant of the comptroller on vouchers certified or approved in the 15 manner prescribed by law. Such advance shall be repaid from funds which 16 shall be withheld by the state comptroller in equal payments over a 17 period of five years out of the first moneys available for the next 18 succeeding payments of education aid apportioned to the city of Staten 19 Island as aid for the support of education. 20 § 16-001. Severability. The provisions of this act shall be severable, 21 and if the application of any clause, sentence, paragraph, subdivision, 22 section or part of this act to any person or circumstance shall be 23 adjudged by any court of competent jurisdiction to be invalid, such 24 judgment shall not necessarily affect, impair or invalidate the applica- 25 tion of any such clause, sentence, paragraph, subdivision, section, part 26 of this act or remainder thereof, as the case may be, to any other 27 person or circumstance, but shall be confined in its operation to the 28 clause, sentence, paragraph, subdivision, section or part thereof 29 directly involved in the controversy in which such judgment shall have 30 been rendered. 31 § 17-001. This act shall take effect immediately; provided, however, 32 that: 33 (a) the provisions of sections 7-009, 7-010, 13-001, 15-001 and 15-002 34 of this act shall take effect on the first of January next succeeding 35 the date on which it shall have become a law; 36 (b) the provisions of sections 7-001 through 7-008, 8-001 through 37 8-024, 9-001 through 9-012, 9-050 through 9-053, 10-001 through 10-008, 38 11-001, 12-001 through 12-020 and 14-001 of this act shall take effect 39 on the first of July in the second year next succeeding the date on 40 which it shall have become a law; 41 (b-1) the amendments made to subdivisions 8 and 14 of section 2554 of 42 the education law by sections 4-007 and 4-008 of this act, respectively, 43 shall take effect upon the revival of such subdivisions as provided in 44 section 34 of chapter 91 of the laws of 2002, as amended; 45 (c) provided that the amendments to paragraphs (a), (b), (c), (d), 46 (e), and (f) of subdivision 2 of section 209 of the social services law 47 made by section 8-021 of this act shall take effect on the same date and 48 same manner as section 2 of part Z of chapter 56 of the laws of 2023, 49 takes effect; 50 (d) the amendments to the second undesignated paragraph of subdivision 51 4 of section 246 of the executive law made by section 8-004 of this act 52 shall be subject to the expiration and reversion of such paragraph 53 pursuant to subdivision (aa) of section 427 of chapter 55 of the laws of 54 1992, as amended, when upon such date the provisions of section 8-004-a 55 of this act shall take effect; andS. 8474 1211 1 (e) provided that the amendments made to sections 257-c, 262, 266 and 2 267 of the executive law made by sections 8-007, 8-008, 8-009 and 8-010 3 of this act shall not affect the expiration or repeal of such sections 4 and shall be deemed expired and repealed therewith.
