United States: New York State Enacts FY 2014-2015 Budget Legislation Providing Extensive Tax Reform

After several Commission reports1 and multiple drafts in the New York State legislature, Governor Andrew Cuomo signed the final FY14-15 New York State budget legislation on March 31, 2014.2 Among its many reforms, this legislation provides for an extensive revamping of the state's corporate tax regime, most notably for banking corporations. Generally, the provisions are effective for tax years beginning on or after January 1, 2015, unless noted otherwise.

Other significant changes include a decrease in the corporate franchise tax rate, the imposition of a mandatory unitary combined reporting system, the application of economic nexus, and the creation of various tax incentives and rate reductions for "qualified manufacturers" in the state. The changes to estate tax, property tax, and additional tax credits mean these reforms will also affect other types of taxpayers. The main provisions of the enacted bill are outlined below.

At this time, the enacted reforms to the New York State tax law regime generally do not apply to New York City, with limited exceptions. Conformity by New York City will require its own legislation.

Corporate Tax Reform

The budget bill implements substantial changes to New York State's corporate tax landscape. The bill's newly enacted corporate tax provisions are outlined below. In addition to the changes highlighted above, the modifications to the state apportionment sourcing rules, net operating loss (NOL) calculations, and the fixed dollar minimum tax are summarized below.

Economic Nexus

  • Corporations will now be taxable in New York for purposes of the corporation franchise tax and the metropolitan tax (MTA) surcharge if they derive $1 million or more of receipts from activity in New York;3 and
  • A corporation that is part of a combined group and has receipts derived from New York of less than $1 million but more than $10,000 satisfies the threshold requirement for combined reporting if the New York receipts of all group members who individually exceed $10,000 equal $1 million or more in the aggregate.4

Tax Rates

  • The existing corporate franchise tax rate of 7.1 percent is reduced to 6.5 percent effective January 1, 2016;5
  • With the effective merger of Article 32 of the New York Tax Law (applicable to banking corporations) into Article 9-A (applicable to general corporations), both general corporations and banking corporations will now calculate tax on the following three tax bases: business income base, capital base, and fixed dollar minimum base;6
  • The MTA surcharge is increased to 25.6 percent effective for tax years beginning on or after January 1, 2015 and before January 1, 2016 with adjustments in rates at the Commissioner's discretion depending on the state's financial need;7
  • Qualified New York manufacturers will have an effective tax rate of 0 percent;8 And
  • The capital base tax rate will be completely phased out by 2021 with qualified New York manufacturers paying a lower tax rate during the phaseout period.9

Fixed Dollar Minimum Tax

  • While the enacted legislation retains the current fixed dollar minimum tax base on New York-sourced receipts, it incrementally increases the current maximum tax due of $5,000 to a maximum tax due of $200,000 for taxpayers with over $1 billion in New York receipts.10

Bank Tax Reform

  • The Article 32 bank franchise tax has been repealed, thereby subjecting banking corporations to the Article 9-A corporation franchise tax beginning January 1, 2015;11 and
  • Under the new combined reporting rules (see below), banks and general business corporations may be included in the same combined filing group under Article 9- A.12

Apportionment

  • The budget legislation modifies current New York apportionment to a single receipts factor with a set of intricate customer-based sourcing rules.13 Specific provisions exist for various types of sales including other business receipts, rents and royalties, and digital products;
  • Taxpayers now have the option to make an annual and irrevocable election to use a fixed amount of 8 percent of all net income from qualified financial instruments in the apportionment numerator.14 Without this election, receipts and net gains from these instruments are sourced based on customer location;
  • Intangible property, such as patents and trademarks, are now sourced to New York based on the extent activities related to the intangible take place in the state;15 and
  • Receipts from services and other business receipts are sourced to the state based on a customer location hierarchy, specifically starting with where the customer receives the benefit of the transaction.16

Combined Reporting

  • The legislation completely replaces the existing combined reporting standards, including the substantial inter-corporate transactions requirement,17 and requires unitary combined reporting for tax years beginning on or after January 1, 2015;18
  • Combined reporting will be required for any taxpayer that:
    • owns or controls more than 50 percent of the voting power of capital stock of one or more other corporations, or
    • owns and controls more than 50 percent of the capital stock of which is owned or controlled by one or more other corporations, or
    • owns or controls more than 50 percent of the voting power of capital stock of which, and the capital stock of one or more other corporations, is owned or controlled, directly or indirectly, by the same interests, and
    • is engaged in a unitary business with those corporations;19
  • Combined returns are now required for (1) captive real estate investment trusts (REITs) and regulated investment companies (RICs) that are not required to be included in a combined report under Article 33 of the New York Tax Law (applicable to insurance companies), (2) combinable captive insurance companies (formerly, overcapitalized insurance companies) with 50 percent or less of their gross receipts for the taxable year consisting of premiums from arrangements that constitute insurance for federal income tax purposes, and (3) alien corporations that satisfy state ownership and unitary thresholds and that are considered U.S. domestic entities under Internal Revenue Code (IRC) Section 7701 or have effectively connected income under IRC Section 882 for the tax year;20
  • Excluded from combined reporting are entities taxable under the telecommunications or insurance tax regimes of Article 9 and Article 33 respectively, New York S corporations, and corporations with no New York nexus affiliates and who are subject to tax solely because of their interest in a limited partnership doing business in New York;21 and
  • Corporations may now elect an irrevocable and binding six-year option to be combined with any non-unitary affiliates if certain thresholds are met.22 Unless affirmatively revoked, the election would be automatically renewed for an additional seven years.

NOLs

  • Currently, NOLs are pre-apportioned and are carried forward or backward in conjunction with federal NOLs. The legislation will apply prospectively starting on or after January 1, 2015 and will compute New York NOLs on a post-apportionment basis;23
  • While the NOL deduction for New York state purposes is no longer tied to the federal amount, the maximum deduction is limited to reducing the tax on entire net income to the higher of the tax on capital base or the fixed dollar minimum;24 and
  • The legislation also creates a prior net operating loss (PNOL) conversion subtraction that may be applied against the business income before the NOL deduction is taken.25

Tax Credits

The budget further enhances New York's tax credit scheme by providing the following:

  • The investment tax credit is retained in the enacted bill, whereas it would have been eliminated in earlier drafts for select taxpayers;26
  • Qualified New York manufacturers will now be able to take a refundable tax credit of 20 percent of real property tax paid on property used for manufacturing;27
  • The enacted legislation enhances existing tax credits including the youth works tax credit,28 empire zone investment credit,29 film production credit,30 qualified emerging technology company credits,31 agricultural property credit32 and environmental remediation credits through the Brownfield redevelopment program.33 Newly enacted tax credits include a refundable credit for START-UP NY34 companies equal to the Section 186-e telecommunications tax35 and a personal income tax credit for eligible low and middle income taxpayers who rent their primary residence;36 and
  • The initially proposed legislation contained a provision that required all Article 9- A credits to be claimed on originally filed returns, but the enacted legislation does not contain this provision.

Estate and Gift Tax Reform

The enacted legislation includes several amendments to the New York gift tax and estate tax for decedents dying on or after April 1, 2014.

  • While the originally proposed legislation decreased the effective estate tax rate from 16 percent to 10 percent over a four-year period, the enacted legislation does not include this decrease. The legislation only provides a tax rate hierarchy for decedents dying on or after April 1, 2014 and before April 1, 2015;37
  • The basic estate tax exclusion amount is increased from the current $1 million to $2,062,500 for decedents dying on or after April 1, 2014 and before April 1, 2015 and thereafter increasing to tie to the federal exclusion amount of $5,250,000 by January 1, 2019.38 After January 1, 2019, the exclusion amount will be indexed for a cost-of-living adjustment;
  • For estate tax purposes, certain gifts made by the decedent during the three-year period prior to death are now required to be added back to the taxable gross estate;39
  • The legislation also closes the resident trust loophole by treating these trusts as grantor trusts for New York income tax purposes on income earned after June 1, 2014;40
  • Trusts making accumulation distributions to New York residents will now be required to file returns with the state;41 and
  • The generation-skipping tax is repealed.42

Various Other Reforms

The legislation also provides for various other tax reforms including, but not limited to:

  • A real property tax freeze rebate for resident individuals for the 2014 tax year that will be extended to the extent each respective school district complies with the state tax cap;43
  • The repeal of the "add-on" minimum tax for individual taxpayers;44 and
  • The ability for tax return preparers electronically filing personal income tax returns to accept electronic signatures from individual taxpayers.45

Commentary

Since Governor Cuomo signed the FY14-15 Budget Bill on March 31, 2014, the budget legislation is a first-quarter tax provision event for calendar-year taxpayers. As mentioned previously, taxpayers should be aware that the budget's overhaul to New York State's tax regime does not apply to New York City unless or until New York City enacts parallel legislation.

Corporate taxpayers should pay careful attention to effective dates for the various changes implemented by the legislation. While most provisions become effective beginning January 1, 2015, there are several that are implemented on a different timetable. For example, the reduction to the corporate franchise tax rate is effective for tax years beginning on or after January 1, 2016 and the elimination of entire net income tax on qualified manufacturers is effective for tax years beginning on or after January 1, 2014. Taxpayers should also be cognizant that the enacted legislation still contains various drafting errors that may still be amended. For example, no estate tax rate is provided for decedents dying after April 1, 2015. Further, the governor's New York FY14-15 budget proposal was originally drafted based upon the recommendations of two state tax commissions. It then went through several draft bills and proposed amendments. It is important for taxpayers to be aware of the final, enacted version's provisions as compared to those that came before it. For example, Governor Cuomo proposed repealing the state stock transfer tax which remains in the enacted legislation.

This legislation includes many provisions that accomplish major tax reform. The adoption of an economic nexus standard represents a significant change and may result in more out-of- state entities being subject to New York corporate franchise tax and the MTA surcharge. Although there has been a state trend of adopting economic nexus standards, the constitutionality of this approach is questionable. Courts intended that the nexus test would be based on a case-by-case analysis of whether a taxpayer had enough presence in a state to be subject to tax.46 Under the judicial approach, many factors beyond receipts in the state should be considered in making a nexus determination. By basing a nexus determination on only a taxpayer's receipts in New York, out-of-state companies are being deprived of a thorough nexus analysis.

In addition to economic nexus, the legislation includes numerous substantial revisions. The repeal of the Article 32 bank franchise tax and inclusion of banking corporations under the general corporation franchise tax will produce a decidedly different tax result for banking corporations. Also, the adoption of mandatory unitary combined reporting is likely to change the entities that are included in the New York combined filing group. The capital base tax is being phased out and the subsidiary capital concept has been eliminated.47 The apportionment provisions are revised and extensive sourcing guidelines are provided for many different types of transactions. New York is following the state trend of adopting market-based sourcing for sales other than sales of tangible personal property. Furthermore, there is a significant shift in the NOL calculation.

While this alert summarizes the key provisions that have been enacted by the New York State legislature, taxpayers should note that many of the newly enacted tax reforms are complex in nature and will likely require a detailed analysis individualized to the taxpayer's situation.

Footnotes

1 See GT SALT Alert: New York State Tax Reform and Fairness Commission Proposes Extensive Revamp of Tax Law; see also, Final Report, New York State Tax Reform and Fairness Commission, Nov. 11, 2013. The full text of the report is available at http://www.governor.ny.gov/assets/documents/greenislandandreportandappendicies.pdf

2 Ch. 59 (A.B. 8559 / S.B. 6359), Laws 2014.

3 N.Y. TAX LAW §§ 209.1(b); 209-B.1(a).

4 N.Y. TAX LAW § 209.1(d).

5 N.Y. TAX LAW § 210.1(a).

6 N.Y. TAX LAW § 210.1.

7 N.Y. TAX LAW § 209-B.1(a).

8 N.Y. TAX LAW § 210.1(a)(vi). "Qualified New York manufacturers" are defined as manufacturers principally engaged in the production of goods who also have property in the state used for qualifying activities where: (1) the adjusted basis of such property for federal income tax purposes at the close of the taxable year is at least one million dollars; or (2) all of its real and personal property is located in the state. Id. It is important to note that qualified emerging technology companies as defined in New York Public Authorities Law § 3012-e will not be subject to the 0 percent tax rate, but rather are subject to reduced rates. Id. The 0 percent tax rate is a change from originally proposed legislation.

9 The enacted legislation imposes the following capital base tax rates for general corporations: 0.15 percent for taxable years beginning before January 1, 2016; 0.125 percent for taxable years beginning in 2016; 0.10 percent for taxable years beginning in 2017; 0.075 percent for taxable years beginning in 2018; 0.05 percent for taxable years beginning in 2019; 0.025 percent for taxable years beginning in 2020; and 0.00 percent for tax years beginning on or after January 1, 2021. N.Y. TAX LAW § 210.1(b). The newly enacted capital tax base rates for qualified New York manufacturers for these tax periods are 0.15 percent, 0.106 percent, 0.085 percent, 0.056 percent, 0.038 percent, 0.019 percent and 0.00 percent, respectively. Id.

10 N.Y. TAX LAW § 210.1(c).

11 Ch. 59 (A.B. 8559 / S.B. 6359), Part A, § 1.

12 N.Y. TAX LAW § 210-C.

13 N.Y. TAX LAW § 210-A.

14 N.Y. TAX LAW § 210-A.5. "Qualified financial instruments" are defined as instruments that are assets marked-to-market under IRC §§ 475 or 1256, and specifically exclude loans secured by real property.

15 N.Y. TAX LAW § 210-A.3.

16 N.Y. TAX LAW § 210-A.10.

17 N.Y. TAX LAW § 211.4.

18 N.Y. TAX LAW § 210-C. Tax on combined reports will be the highest of (1) combined business income tax base multiplied by the applicable tax rate, (2) combined capital base multiplied by the applicable tax rate, or (3) the fixed dollar minimum of the designated agent of the combined group. Tax on combined reports will also include the fixed dollar minimum tax of each taxpayer in the group (see discussion regarding changes to fixed dollar minimum tax above). N.Y. TAX LAW § 210-C.1.

19 N.Y. TAX LAW § 210-C.2(a).

20 N.Y. TAX LAW § 210-C.2(b).

21 N.Y. TAX LAW § 210-C.2(c).

22 N.Y. TAX LAW § 210-C.3.

23 N.Y. TAX LAW § 210.1(a)(ix).

24 Id.

25 N.Y. TAX LAW § 210.1(a)(viii). The PNOL conversion subtraction is calculated by: (1) computing the tax value of the taxpayer's unabsorbed NOL for the base year (this value equals the product of (a) the amount of the taxpayer's unabsorbed NOL, (b) the taxpayer's base year business allocation percentage (BAP), and (c) the taxpayer's base year tax rate); and (2) dividing this amount by 6.5 percent (in the case of a qualified New York manufacturer, 5.7 percent). This amount is the taxpayer's PNOL conversion subtraction pool. The taxpayer's PNOL conversion subtraction for the taxable year equals 1/10 of its conversion subtraction pool plus any amount of unused PNOL conversion subtraction from preceding taxable years. In lieu of this subtraction, if the taxpayer so elects, the taxpayer's PNOL conversion subtraction for tax years beginning on or after January 1, 2015 and before January 1, 2017, equals for each year not more than ½ of its conversion subtraction pool.

26 N.Y. TAX LAW § 210-B.1.

27 N.Y. TAX LAW § 210-B.43.

28 N.Y. TAX LAW § 210-B.36.

29 N.Y. TAX LAW § 210-B.3.

30 N.Y. TAX LAW § 210-B.20.

31 N.Y. TAX LAW § 210-B.7, 8.

32 N.Y. TAX LAW § 210-B.11.

33 N.Y. TAX LAW § 210-B.18.

34 See GT SALT Alert: New York Enacts Tax-Free Areas to Revitalize and Transform Campuses and University Communities (START-UP NY Program).

35 N.Y. TAX LAW § 210-B.44.

36 N.Y. TAX LAW § 606(e-1).

37 N.Y. TAX LAW § 952(b).

38 N.Y. TAX LAW § 952(c).

39 N.Y. TAX LAW § 954(a).

40 N.Y. TAX LAW § 612(b)(40), (41). As recommended in the Final Report of the New York State Tax Reform and Fairness Commission that was issued in November 2013, these provisions are enacted to prevent a planning opportunity known as a Delaware Incomplete Gift Trust. This structure allowed the resident trust and the New York beneficiaries to avoid New York income tax. Because these now will be treated as grantor trusts, the trust income will be included in the grantor's taxable income.

41 N.Y. TAX LAW § 658(f).

42 Part X, § 8, repealing Art. 26-B.

43 N.Y. TAX LAW § 606(bbb).

44 Ch. 59 (A.B. 8559 / S.B. 6359), Part J, § 1, repealing N.Y. TAX LAW § 602.

45 N.Y. TAX LAW § 653(a)(2).

46 See Complete Auto Transit v. Brady, 430 U.S. 274 (1977), and subsequent cases.

47 Under this concept, entire net income did not include income, gains and losses from subsidiary capital. N.Y. TAX LAW § 208.9(1)(a). The subsidiary capital was subject to a separate tax. N.Y. TAX LAW § 210.1(e)(1). "Subsidiary capital" was investments in the stock of subsidiaries and any indebtedness from subsidiaries, excluding certain accounts receivable acquired in the ordinary course of business. N.Y. TAX LAW § 208.4.

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