20 CRR-NY 1-3.2NY-CRR
20 CRR-NY 1-3.2
20 CRR-NY 1-3.2
1-3.2 Foreign corporations subject to tax.
Tax Law, § 209(1)
(a) General.
(1) The tax is imposed on every foreign corporation, not specifically exempt as provided in section 1-3.4 of this Subpart, whose activities include one or more of the following:
(i) doing business in New York State in a corporate or organized capacity or in a corporate form; or
(ii) employing capital in New York State in a corporate or organized capacity or in a corporate form; or
(iii) owning or leasing property in New York State in a corporate or organized capacity or in a corporate form; or
(iv) maintaining an office in New York State.
(2) A foreign corporation engaged in New York State in any one or more of the activities described in paragraph (1) of this subdivision is subject to tax even though its activities are wholly or partly in interstate or foreign commerce.
(3) Pursuant to Public Law 86-272 (15 U.S.C.A. sections 381-384), a foreign corporation is not subject to the tax imposed by article 9-A of the Tax Law if its activities are limited to those described in that law. That is, the solicitation of orders by the corporation's employees, representatives or independent contractors for sales of tangible personal property, which orders are sent outside New York State for approval or rejection, and, which if approved, are filled by shipment or delivery from a point outside New York State. For a description of corporations which are exempt from taxation under article 9-A of the Tax Law pursuant to the provisions of Public Law 86-272, see section 1-3.4(b)(9) of this Subpart.
(4) A foreign corporation engaged in New York State in any one or more of the activities described in paragraph (1) of this subdivision is subject to tax regardless of whether it is authorized to do business in New York State.
(5) If a partnership is doing business, employing capital, owning or leasing property or maintaining an office in New York State, then all of its corporate general partners are subject to the tax imposed by article 9-A of the Tax Law.
(6)
(i) A foreign corporation is doing business, employing capital, owning or leasing property or maintaining an office in New York State if it is a limited partner of a partnership, other than a portfolio investment partnership, which is doing business, employing capital, owning or leasing property or maintaining an office in New York State and if it is engaged, directly or indirectly, in the participation in or the domination or control of all or any portion of the business activities or affairs of the partnership. A foreign corporation is engaged in such manner in the business activities or affairs of the partnership if one or more of certain factual situations, including but not limited to the following, exist during the taxable year or, except for clause (a) of this subparagraph, any previous taxable year:
(a) The foreign corporation has a one percent or more interest as a limited partner in a partnership and/or the basis of the foreign corporation's interest in the limited partnership, determined pursuant to section 705 of the Internal Revenue Code, is more than $1,000,000. For purposes of determining whether the level of interest in the partnership or level of basis of the interest in the partnership is met, the percentage of interest in the partnership and basis of interest in the partnership of members of the foreign corporation's affiliated group, of officers or directors of the foreign corporation or of officers or directors of members of the foreign corporation's affiliated group are added to the foreign corporation's interest in the partnership or the basis of its interest in the partnership, respectively.
(b) An officer, employee, or director of the foreign corporation or an officer, employee, or director of a member of an affiliated group which includes such foreign corporation or a member of such an affiliated group, is a general partner of the partnership.
(c) The foreign corporation or a member of an affiliated group which includes the foreign corporation is a five percent or more stockholder in a general partner of the partnership.
(d) One or more officers, employees, directors or agents of the foreign corporation, or of a member of an affiliated group which includes such foreign corporation, perform acts usually performed by a general partner.
(e) The foreign corporation becomes a limited partner after one or more officers, employees, directors or agents of such corporation, or of a member of an affiliated group which includes such foreign corporation, negotiates the terms of the partnership agreement instead of merely accepting an existing agreement.
(f) There is substantial communication between one or more officers, employees, directors or agents of the foreign corporation, or of a member of an affiliated group which includes such foreign corporation, and the general partner regarding the business activities or affairs of the partnership.
(g) The foreign corporation, a member of an affiliated group which includes such foreign corporation, or an officer, employee, or director of the foreign corporation or of a member of such an affiliated group, guarantees payment of one or more loans to the partnership.
(h) The foreign corporation, a member of an affiliated group which includes such foreign corporation, or an officer, employee, or director of the foreign corporation or of a member of such an affiliated group, makes loans to the partnership.
(i) The foreign corporation is a limited partner which for purposes of section 469 of the Internal Revenue Code is materially participating in the partnership as defined in section 1.469-5T(e)(2) of the Federal income tax regulations (26 CFR 1.469-5T[e][2]). For purposes of this clause, references to taxpayer in such section 469 shall be deemed to mean any person, as defined in section 7701(a)(1) of the Internal Revenue Code.
(j) The foreign corporation entered into the limited partnership arrangement not for a valid business or economic purpose, but for the principal purpose of avoiding or evading the payment of tax.
(ii) Other factual situations, during the taxable year or any previous taxable year, to be considered as indications that a foreign corporation is engaged, directly or indirectly, in the participation in or the domination or control of all or any portion of the business activities or affairs of the partnership, include the following:
(a) The foreign corporation, or a member of an affiliated group which includes such foreign corporation, sells its products and/or services to the partnership.
(b) The foreign corporation, or a member of an affiliated group which includes such foreign corporation, purchases the partnership's products and/or services.
(c) The foreign corporation, or a member of an affiliated group which includes such foreign corporation, is engaged in a similar or identical business to that of the partnership.
(d) 50 percent or more of the foreign corporation's assets or those of a member of an affiliated group which includes such foreign corporation are a limited partnership interest in the partnership.
(e) The business carried on by the partnership is integrally related to the business of the foreign corporation or a member of an affiliated group which includes such foreign corporation.
(f) The foreign corporation exercises its voting rights as a limited partner to remove a general partner, to approve the sale of the partnership assets, to amend the partnership agreement or to dissolve the partnership.
(g) The foreign corporation, or a member of an affiliated group which includes such foreign corporation, is interrelated with the partnership through one or more of the following factors:
(1) common management;
(2) common policy and directives including policy and directives relating to legal services, assignment or transfer of executive personnel, determination and enforcement of procedures to ensure compliance with the law, salary guidelines or uniform pay scale and/or labor relations activities;
(3) common or inter-entity use of intelligent assets, such as patents, trademarks or copyrights;
(4) common or inter-entity use of product distribution systems and/or warehousing functions;
(5) common or inter-entity use of facilities, equipment, or employees;
(6) common or inter-entity personnel recruitment;
(7) common or inter-entity research and development activities;
(8) common or inter-entity marketing and/or advertising;
(9) common or inter-entity information processing and computer support, printing, telecommunications, and/or other support services;
(10) common or inter-entity transfer or pooling of technical information;
(11) common or inter-entity pension plans and/or insurance plans; or
(12) common or inter-entity credit analysis and coordination of credit extension.
(iii) As used in this paragraph, the following terms have these meanings:
(a) The term one percent or more interest means a distributive share of one percent or more of a limited partnership's income, gain, loss, deduction, or credit determined pursuant to section 704 of the Internal Revenue Code.
(b) The term inter-entity means business activities or affairs carried on between a foreign corporation which is a limited partner of a partnership, or a member of an affiliated group which includes such foreign corporation, and such partnership.
(c) The term affiliated group shall have the same meaning as such term is defined in section 1504 of the Internal Revenue Code, except that the term common parent corporation shall be deemed to mean any person, as defined in section 7701(a)(1) of the Internal Revenue Code, and except that references to “at least eighty percent” in such section 1504 shall be read as “50 percent or more.” Such section 1504 shall be read without regard to the exclusions provided for in section 1504(b).
(d) The term portfolio investment partnership means a limited partnership which meets the gross income requirement of section 851(b)(2) of the Internal Revenue Code. For purposes of the preceding sentence, income and gains from commodities (not described in section 1221[1] of such Code) or from futures, forwards, and options with respect to such commodities shall be included in income which qualifies to meet such gross income requirement. Such commodities must be of a kind customarily dealt in on an organized commodity exchange and the transaction must be of a kind customarily consummated at such place, as required by section 864(b)(2)(B)(iii) of such Code. To the extent that such a partnership has income and gains from commodities (not described in section 1221[1] of such code) or from futures, forwards, and options with respect to such commodities, such income and gains must be derived by a partnership which is not a dealer in commodities and is trading for its own account as described in section 864(b)(2)(B)(ii) of the Internal Revenue Code. The term portfolio investment partnership shall not include a dealer (within the meaning of section 1236 of the Internal Revenue Code) in stocks or securities.
(b) Foreign corporation—doing business.
(1) The term doing business is used in a comprehensive sense and includes all activities which occupy the time or labor of people for profit. Regardless of the nature of its activities, every corporation organized for profit and carrying out any of the purposes of its organization is deemed to be doing business for the purposes of the tax. In determining whether a corporation is doing business, it is immaterial whether its activities actually result in a profit or a loss.
(2) Whether a corporation is doing business in New York State is determined by the facts in each case. Consideration is given to such factors as:
(i) the nature, continuity, frequency, and regularity of the activities of the corporation in New York State;
(ii) the purposes for which the corporation was organized;
(iii) the location of its offices and other places of business;
(iv) the employment in New York State of agents, officers and employees; and
(v) the location of the actual seat of management or control of the corporation.
(c) Foreign corporation—employing capital.
The term employing capital is used in a comprehensive sense. Any of a large variety of uses, which may overlap other activities, may give rise to taxable status. In general, the use of assets in maintaining or aiding the corporate enterprise or activity in New York State will make the corporation subject to tax. Employing capital includes such activities as:
(1) maintaining stockpiles of raw materials or inventories; or
(2) owning materials and equipment assembled for construction.
(d) Foreign corporation—owning or leasing property.
The owning or leasing of real or personal property within New York State constitutes an activity which subjects a foreign corporation to tax. Property owned by or held for the taxpayer in New York State, whether or not used in the taxpayer's business, is sufficient to make the corporation subject to tax. Property held, stored or warehoused in New York State creates taxable status. Property held as a nominee for the benefit of others creates taxable status. Also, consigning property to New York State may create taxable status if the consignor retains title to the consigned property.
(e) Foreign corporation—maintaining an office.
A foreign corporation which maintains an office in New York State is engaged in an activity which makes it subject to tax. An office is any area, enclosure or facility which is used in the regular course of the corporate business. A salesperson's home, a hotel room, or a trailer used on a construction job site may constitute an office.
(f) Examples.
The following are examples of foreign corporations which are subject to tax because they are doing business, or employing capital, or owning or leasing property in a corporate or organized capacity or maintaining an office in New York State.
(1) A foreign corporation operates or is organized for the purposes of buying and selling securities. It does not maintain a physical office anywhere, other than a statutory office in the state of its incorporation. Regular and continuous purchases of securities are directed by its officers or agents located in New York State. The corporation is subject to tax.
(2) A foreign corporation participates in a joint venture which carries on business in this State, but the foreign corporation is not otherwise engaged in any activities in New York State. The corporation is subject to tax.
(3) A foreign holding corporation coordinates and supervises in New York State activities of a subsidiary which is taxable in New York State. It also makes loans to its subsidiary and guarantees loans obtained by the subsidiary from sources other than the parent. The corporation is subject to tax.
(4) A foreign manufacturing corporation has it factories and offices located outside New York State. Its sole activity in New York State consists of holding or storing goods in a warehouse. The corporation is subject to tax.
(5) A foreign corporation which has no office or other place of business in New York State leases automobiles to customers in New York State. The corporation is subject to tax.
(6) A foreign manufacturing corporation has its factory outside New York State. Its only activity in New York State is the solicitation of orders for its products through a sales office located in New York State. The orders are forwarded to its home office outside the State for acceptance and the merchandise is shipped by common carrier from the factory direct to the purchasers. The corporation is subject to tax.
(7) A foreign corporation which operates several retail stores outside New York State leases an office in New York City for the convenience of its buyers when they come to New York State. Salespeople call at the office to solicit orders. The merchandise is shipped by the sellers directly to the offices of the corporation outside New York State. The corporation is subject to tax.
(8) A foreign corporation formerly engaged in manufacturing in another state discontinues such business and transfers its office to New York State, where its activities consist solely of the acquisition of bonds and the receipt of interest on such bonds and the holding of directors' meetings. The corporation is subject to tax.
(9) A foreign corporation sends salespeople into New York State to solicit orders. The orders must be accepted at the home office of the corporation located in another state. The corporation displays goods in New York City at a space leased occasionally and for short terms. The corporation is subject to tax.
20 CRR-NY 1-3.2
Current through February 28, 2023
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