N.Y. Tax Law § 183 — Franchise tax on transportation and transmission corporations and associations

§ 183. Franchise tax on transportation and transmission corporations\nand associations.--1. (a) The term "corporation" as used in this section\nshall include an association, within the meaning of paragraph three of\nsubsection (a) of section seventy-seven hundred one of the internal\nrevenue code (including a limited liability company), a publicly traded\npartnership treated as a corporation for purposes of the internal\nrevenue code pursuant to section seventy-seven hundred four thereof and\nany business conducted by a trustee or trustees wherein interest or\nownership is evidenced by certificates or other written instruments.\n (b) For the privilege of exercising its corporate franchise, or of\ndoing business, or of employing capital, or of owning or leasing\nproperty in this state in a corporate or organized capacity, or of\nmaintaining an office in this state, every domestic corporation,\njoint-stock company or association formed for or principally engaged in\nthe conduct of canal, steamboat, ferry (except a ferry company operating\nbetween any of the boroughs of the city of New York under a lease\ngranted by the city), express, navigation, pipe line, transfer, baggage\nexpress, omnibus, taxicab, telegraph, or telephone business, or formed\nfor or principally engaged in the conduct of two or more of such\nbusinesses, and every domestic corporation, joint-stock company or\nassociation formed for or principally engaged in the conduct of a\nrailroad, palace car, sleeping car or trucking business or formed for or\nprincipally engaged in the conduct of two or more of such businesses and\nwhich has made an election pursuant to subdivision ten of this section,\nand every other domestic corporation, joint-stock company or association\nprincipally engaged in the conduct of a transportation or transmission\nbusiness, except a corporation, joint-stock company or association\nformed for or principally engaged in the conduct of a railroad, palace\ncar, sleeping car or trucking business or formed for or principally\nengaged in the conduct of two or more of such businesses and which has\nnot made the election provided for in subdivision ten of this section,\nand except a corporation, joint-stock company or association principally\nengaged in the conduct of aviation (including air freight forwarders\nacting as principal and like indirect air carriers) and except a\ncorporation principally engaged in providing telecommunication services\nbetween aircraft and dispatcher, aircraft and air traffic control or\nground station and ground station (or any combination of the foregoing),\nat least ninety percent of the voting stock of which corporation is\nowned, directly or indirectly, by air carriers and which corporation's\nprincipal function is to fulfill the requirements of (i) the federal\naviation administration (or the successor thereto) or (ii) the\ninternational civil aviation organization (or the successor thereto),\nrelating to the existence of a communication system between aircraft and\ndispatcher, aircraft and air traffic control or ground station and\nground station (or any combination of the foregoing) for the purposes of\nair safety and navigation shall pay, in advance, an annual tax to be\ncomputed upon the basis of the amount of its capital stock within this\nstate during the preceding year, and upon each dollar of such amount.\nProvided, however, a corporation, joint-stock company or association\nformed for or principally engaged in the transportation, transmission or\ndistribution of gas, electricity or steam shall not be subject to tax\nunder this section or section one hundred eighty-four of this article.\n (c) Notwithstanding the provisions of paragraph (b) of this\nsubdivision, during the period that the state tax on motor fuel,\ncomputed without regard to any reimbursement allowable under paragraph\n(d) of subdivision three of section two hundred eighty-nine-c of this\nchapter, exceeds two cents per gallon, the corporations, herein classed\nas "taxicab" and "omnibus," other than corporations described in\nsubdivision nine of this section, shall be taxed under the provisions of\narticle nine-a of this chapter and not under this section.\n 2. The measure of the amount of capital stock in this state, except as\nhereinafter provided, shall be such a portion of the issued capital\nstock as the gross assets, exclusive of obligations issued by the United\nStates and cash on hand and on deposit, employed in any business within\nthis state, bear to the gross assets, exclusive of obligations issued by\nthe United States and cash on hand and on deposit, wherever employed in\nbusiness. Provided, however, that in the case of a corporation taxable\nhereunder only for the privilege of holding property, the measure shall\nbe such a portion of the issued capital stock as the gross assets,\nexclusive of obligations issued by the United States and cash on hand\nand on deposit, located within the state, bear to the gross assets,\nexclusive of obligations issued by the United States and cash on hand\nand on deposit, wherever located. The capital of a corporation invested\nin the stock of another corporation shall be deemed to be assets located\nwhere the assets of the issuing corporation, other than patents,\ncopyrights, trademarks, contracts and good will, are located.\n 3. Every corporation, joint-stock company or association, subject to\ntaxation under this section shall, in any event, pay annually a minimum\ntax of not less than seventy-five dollars nor less than one and\nfive-tenths mills on each dollar of such a portion of the net value of\nits issued capital stock, which net value for the purposes of this\nsection shall be deemed to be not less than five dollars per share, as\nmay be determined upon such of the bases herein provided for the\nmeasurement thereof as is applicable. The term "net value" as used in\nthis section shall be construed to mean not less than the difference\nbetween a corporation's assets and liabilities, and not less than the\naverage price at which such stock sold during the year covered by the\nreport which forms the basis for the tax. But if the dividends paid on\nthe par value of any kind of capital stock during any year ending with\nthe thirty-first day of December amount to six per centum or more, the\ntax upon such kind of capital stock shall be at the rate of\nthree-eighths of a mill for each one per centum of dividends paid and\nshall be computed upon the par value of such capital stock, unless such\na tax be less than the minimum tax hereinbefore provided in this\nsection, and the tax commission shall, for such purpose, make a fair and\nequitable apportionment of the assets of the corporation, joint-stock\ncompany or association, between or among the different kinds of stock,\nprovided, however, that the provisions of this sentence shall not apply\nto any corporation, joint stock company or association formed for or\nprincipally engaged in the conduct of a telephone business which is\nsubject to the provisions of section one hundred eighty-four of this\narticle and which has a total number of access lines in the state of one\nmillion or less.\n 4. If such corporation, joint stock company or association shall have\nmore than one kind of capital stock, and upon one of such kinds of stock\na dividend or dividends amounting to six or more than six per centum\nupon the par value thereof, has been paid, and upon the other no\ndividend has been paid, or the dividend or dividends paid thereon amount\nto less than six per centum upon the par value thereof, then the tax\nshall be fixed upon each kind as hereinbefore provided.\n 5. The dividend rate for a corporation having stock without nominal or\npar value shall be determined by dividing the amount paid as a dividend\nor dividends during the year by the amount paid in on such stock and, if\nthe rate is six per centum or more, the rate of three-eighths of a mill\nfor each one per centum of dividends shall be applied to the amount paid\nin on such stock, unless such tax be less than the minimum tax\nhereinbefore in this section provided for. The amount of earned surplus\nat the time of change of classification of a corporation formerly taxed\nunder article nine-a of this chapter shall be excluded in determining\nthe amount of dividends paid. Any consideration given by a corporation\nfor the purchase of its own stock in excess of the consideration\nreceived by it for the issuance of such stock, shall, for the purposes\nof this section, be considered as a dividend.\n 6. Every like corporation, joint-stock company or association\norganized, incorporated or formed under the laws of any other state,\ncountry or sovereignty shall pay a like tax for the privilege of\nexercising its corporate franchise, or of doing business, or of\nemploying capital, or of owning or leasing property in this state in a\ncorporate or organized capacity, or of maintaining an office in this\nstate, to be computed upon the basis of the measurement herein provided\nfor the taxation of domestic corporations.\n 7. The owning or holding in this state by a foreign corporation, or by\na trustee or trustees included under this section within the meaning of\nthe term corporation as herein before defined, of property shall\nconstitute doing business within this state within the intent of this\nsection; provided, however, that the owning or holding in this state by\na railroad, palace car or sleeping car corporation, business,\nnavigation, canal, ferry, (except a ferry company operating between any\nof the boroughs of the city of New York under a lease granted by the\ncity), or steamboat or any other corporation formed for or principally\nengaged in the operation of vessels included under this section within\nthe meaning of the term corporation as herein before defined, of\nproperty used exclusively in interstate or foreign commerce shall not\nconstitute doing business in this state within the intent of this\nsection. However, a foreign corporation or such a trustee or trustees\nshall not be deemed to be doing business, employing capital, owning or\nleasing property, or maintaining an office in this state, for the\npurposes of this article, by reason of (a) the maintenance of cash\nbalances with banks or trust companies in this state, or (b) the\nownership of shares of stock or securities kept in this state, if kept\nin a safe deposit box, safe, vault or other receptacle rented for the\npurpose, or if pledged as collateral security, or if deposited with one\nor more banks or trust companies, or brokers who are members of a\nrecognized security exchange, in safekeeping or custody accounts, or (c)\nthe taking of any action by any such bank or trust company or broker,\nwhich is incidental to the rendering of safekeeping or custodian service\nto such corporation, or (d) the maintenance of an office in this state\nby one or more officers or directors of the corporation who are not\nemployees of the corporation if the corporation otherwise is not doing\nbusiness in this state, and does not employ capital or own or lease\nproperty in this state, or (e) the keeping of books or records of a\ncorporation in this state if such books or records are not kept by\nemployees of such corporation and such corporation does not otherwise do\nbusiness, employ capital, own or lease property or maintain an office in\nthis state, or (f) any combination of the foregoing activities.\n 8. The measure of the capital stock in this state of a corporation\nengaged in the operation of vessels in foreign commerce shall be such\nportion of the issued capital stock as the aggregate number of working\ndays in New York territorial waters of all such vessels bears to the\naggregate number of working days of all such vessels. The dividend rate\nfor such a corporation shall be determined by dividing the amount paid\nas a dividend or dividends on all classes of stock during the year by\nthe amount of paid-in capital and, if the rate is six per centum or\nmore, the rate of three-eighths of a mill for each one per centum of\ndividends shall be applied to the amount of such paid-in capital.\n 9. (a) A corporation, classed as a "taxicab" or "omnibus",\n (1) which is organized, incorporated or formed under the laws of any\nother state, country or sovereignty, and\n (2) which neither owns nor leases property in this state in a\ncorporate or organized capacity, nor\n (3) maintains an office in this state in a corporate or organized\ncapacity, but\n (4) which is doing business or employing capital in this state by\nconducting at least one but fewer than twelve trips into this state\nduring the calendar year,\nshall be exempt from the tax imposed under this section. If the only\nproperty a corporation owns or leases in this state is a vehicle or\nvehicles used to conduct trips, it shall not be considered, for purposes\nof subparagraph two of this paragraph, to be owning or leasing property\nin this state.\n (b) For purposes of this subdivision, a corporation classed as a\n"taxicab" or "omnibus" shall be considered to be conducting a trip into\nNew York state when one of its vehicles enters New York state and\ntransports passengers to, from, or to and from a location in New York\nstate. A corporation shall not be considered to be conducting a trip\ninto New York state if its vehicle only makes incidental stops at\nlocations in the state while in transit from a location outside New York\nstate to another location outside New York state. The number of trips a\ncorporation conducts into New York state shall be calculated by\ndetermining the number of trips each vehicle owned, leased or operated\nby the corporation conducts into New York state and adding those numbers\ntogether.\n 10. Election. Every corporation, joint-stock company or association\nformed for or principally engaged in the conduct of a railroad\n(including surface railroad, whether or not operated by steam, subway\nrailroad or elevated railroad), palace car, sleeping car or trucking\nbusiness or formed for or principally engaged in the conduct of two or\nmore of such businesses, which would be subject to article nine-A of\nthis chapter if the election provided for under this subdivision were\nnot made, may elect to be subject to the provisions of this section and,\nas applicable, section one hundred eighty-four of this article, rather\nthan the provisions of such article nine-A. Such corporation,\njoint-stock company or association must make such election by the first\nday on which such corporation, joint-stock company or association would\nbe required to file a return or report (without regard to extensions)\nunder this section or section one hundred eighty-four of this article,\nor section one hundred eighty-three-a or one hundred eighty-four-a of\nthis article, or article nine-A of this chapter. An election made\npursuant to this subdivision shall continue to be in effect until\nrevoked by the taxpayer. A revocation of the election to be subject to\nthis section and, as applicable, section one hundred eighty-four of this\narticle, shall be irrevocable. Such election, and a revocation thereof,\nshall be made in the manner prescribed by the commissioner, whether by\nregulation or otherwise. Such revocation shall apply as of the first day\nof January next following the end of a taxable year with respect to\nwhich the taxpayer had been subject to this section and, as applicable,\nsection one hundred eighty-four of this article, by reason of an\nelection made pursuant to this subdivision.\n