N.Y. Tax Law § 293 — Allocation of unrelated business taxable income

§ 293. Allocation of unrelated business taxable income. (a) The\nportion of the unrelated business taxable income of a taxpayer to be\nallocated within this state shall be determined by multiplying its\nunrelated business taxable income by an allocation percentage to be\ndetermined by:\n (1) ascertaining the percentage which the average value of the\ntaxpayer's real and tangible personal property in its unrelated trade or\nbusiness within the state during the period covered by the taxpayer's\nreturn bears to the average value of all the taxpayer's real and\ntangible personal property wherever situated during such period which is\nused in its unrelated trade or business (For purposes of this paragraph,\nthe taxpayer's real property shall include not only such property owned\nby the taxpayer but also such property rented to it.);\n (2) ascertaining the percentage which the receipts of the taxpayer's\nunrelated trade or business, computed on the cash or accrual basis\naccording to the method of accounting used in the computation of the\ntaxpayer's unrelated business taxable income, arising during such period\nfrom\n (A) sales of tangible personal property by the unrelated trade or\nbusiness where shipments are made to points within this state,\n (B) services performed within the state by the unrelated trade or\nbusiness,\n (C) rentals from property of the unrelated trade or business situated\nwithin the state, and\n (D) all other receipts earned by the unrelated trade or business\nwithin the state, bear to the total amount of the receipts of the\nunrelated trade or business, similarly computed, arising during such\nperiod from all sales of its tangible personal property, services,\nrentals and all other transactions, whether within or without the state;\n (3) ascertaining the percentage of the total wages, salaries and\nother personal service compensation, similarly computed, during such\nperiod of employees of the taxpayer's unrelated trade or business within\nthe state, except general executive officers, to the total wages,\nsalaries and other personal service compensation, similarly computed,\nduring such period of all employees of the unrelated trade or business\nwithin and without the state, except general executive officers; and\n (4) adding together the percentages so determined and dividing the\nresult by the number of percentages; provided, however, that if the\ntaxpayer does not have a regular place of business outside the state in\nwhich its unrelated trade or business is conducted, the business\nallocation percentage shall be one hundred percent.\n (b) If it shall appear to the tax commission that the allocation\npercentage determined in subdivision (a) of this section does not\nproperly reflect the activity, business or income of a taxpayer's\nunrelated trade or business within the state, the tax commission shall\nbe authorized, in its discretion, to adjust it by (1) excluding one or\nmore of the factors therein, (2) including one or more other factors,\nsuch as expenses, purchases, contract values (minus subcontract values),\n(3) excluding one or more assets in computing such allocation\npercentage, provided the income therefrom is also excluded in\ndetermining unrelated business taxable income or (4) any other similar\nor different method calculated to effect a fair and proper allocation of\nthe income reasonably attributable to this state. The tax commission\nfrom time to time shall publish all rulings of general interest with\nrespect to any application of the provisions of this subdivision.\n