20 NYCRR § 9-3.1

Apportionment rules for New York S corporations

Official textus-ny/regstax.ny.gov

A New York S corporation determines the amount of business receipts included in New York receipts or everywhere receipts using the rules in section 210-A and Part 4 of this Subchapter, except as provided in this Subpart.

# (a)

The term” business receipts for a New York S corporation” means all receipts, net income (not less than zero), net gains (not less than zero), and other items described in section 210-A and this Subchapter that are included in the New York S corporation’s non-separately computed income and loss or in the New York S corporation’s separately stated items of income and loss, determined pursuant to subdivision (a) of IRC section
1366. Business receipts for New York S corporations include amounts that otherwise would have been characterized as investment income from investment capital or other exempt income for New York C corporations.

# (b)

Because a New York S corporation does not have any investment capital or other exempt income, stock that otherwise would have been investment capital or could generate other exempt income for a New York C corporation as defined in section 208(1-A) may be a qualified financial instrument for a New York S corporation. For purposes of applying the rules in section 4-2.4 of this Subchapter, the term qualified financial instrument shall have the same meaning as in section 4-2.4, except that the instruments excluded from qualified financial instruments in the case of New York S corporations shall be limited to the following:

# (1)

loans secured by real property;

# (2)

loans not secured by real property, if the only loans the taxpayer has marked to market are loans secured by real property; and

# (3)

partnership interests that do not meet the definition of security in IRC section 475(c).

# (c)

Global intangible low-taxed income (GILTI) is included in everywhere receipts only in instances where the GILTI inclusion amount is computed at the entity level under IRC section 951A. GILTI is not included in New York receipts.

Source: official source document (DTF adopted rule text, December 2023 corporate reform)

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