N.Y. Gen. City Law § 25-Y

Current through 2024 NY Law Chapter 553

Section 25-Y - Definitions

As used in this article the following terms shall have the following meanings:

(a) "Eligible business" means any person subject to a tax imposed under a local law enacted pursuant to part two or three of section one, or section two, of chapter seven hundred seventy-two of the laws of nineteen hundred sixty-six or a gross receipts tax imposed under a local law enacted pursuant to subdivision (a) of section twelve hundred one of the tax law that: (1) has been conducting substantial business operations at one or more business locations outside an eligible area for the twenty-four consecutive months immediately preceding the taxable year during which such eligible business relocates as defined in subdivision (j) of this section; and (2) on or after May twenty-seventh, nineteen hundred eighty-seven relocates as defined in subdivision (j) of this section all or part of such business operations; and (3) either (i) on or after May twenty-seventh, nineteen hundred eighty-seven first enters into a contract to purchase or lease the premises to which it relocates as defined in subdivision (j) of this section, or a parcel on which will be constructed such premises, or (ii) as of May twenty-seventh, nineteen hundred eighty-seven owns such parcel or premises and has not prior to such date made application for benefits pursuant to a local law enacted in accordance with title two-D of article four of the real property tax law.

(b) "Person" means and includes any individual, partnership, association, joint-stock company, corporation, estate or trust, limited liability company, and any combination of the foregoing.

(c) "Retail activity" means any activity which consists predominantly of the sale, other than through the mail or by the telephone or by means of the internet, of tangible personal property to any person, for any purpose unrelated to the trade or business of such person, or which consists predominantly of the selling of services to individuals which generally involve the physical, mental and/or spiritual care of such individuals, or the physical care of the personal property of any person unrelated to the trade or business of such person, or which consists predominantly of the provision of retail banking services.

(d) "Hotel services" means any services which consist predominantly of the lodging of guests at a building or a portion thereof which is regularly used and kept open for such services. The term "hotel services" shall include the lodging of guests at an apartment hotel, a motel, boarding house or club, whether or not meals are served.

(e) "Eligible premises" means:

(1) nonresidential premises which are wholly contained in real property which is certified as eligible to receive benefits pursuant to a local law enacted in accordance with title two-C or title two-D of article four of the real property tax law, provided that such premises have been improved by construction or renovation, that expenditures have been made for improvements to such real property in excess of fifty per centum or, in the case of industrial property, in excess of twenty-five per centum, of the value at which such real property was assessed for tax purposes for the tax year in which such improvements commenced and such expenditures have been made within thirty-six months or, in the case of expenditures for such improvements to such real property in excess of fifty million dollars within seventy-two months from such commencement and, provided further, that such real property is located in an eligible area;

(2) nonresidential premises which are: (i) wholly contained in or situated on real property which has been leased from an industrial development agency established pursuant to article eighteen-A of the general municipal law, provided that such premises were constructed or renovated subsequent to the approval of such construction or renovation by such agency, or (ii) wholly contained in or situated on real property owned by a city having a population of one million or more, a lease for which was approved in accordance with the applicable provisions of the charter of such city, provided that such premises were constructed or renovated subsequent to such approval, or (iii) wholly contained in or situated on real property which has been leased from the port authority of the state of New York and New Jersey or the New York state urban development corporation, or a subsidiary thereof, provided that such premises were constructed or renovated subsequent to the execution of such lease, or (iv) wholly contained in property which would be eligible to receive benefits pursuant to a local law enacted in accordance with title two-D of article four of the real property tax law except that such property is exempt from real property taxation; provided that expenditures have been made for improvements to such real property in excess of fifty per centum or, in the case of industrial property, in excess of twenty-five per centum, of the value at which such real property was assessed for tax purposes for the tax year in which such improvements commenced and such expenditures have been made within thirty-six months or, in the case of expenditures for such improvements to such real property in excess of fifty million dollars within seventy-two months from the date of such commencement, and provided further that such real property is located in an eligible area; or

(3) in the case of a relocation, the date of which, as determined in subdivision (j) of this section, is on or after July first, two thousand three, nonresidential premises, located in an eligible area, for which a minimum expenditure has been made on or after July first, two thousand three, for improvements in excess of twenty-five dollars per square foot, provided, however, that if such premises are leased, such lease shall have a term that does not expire until at least three years after the later of the date of such relocation and the lease commencement date.

The determination of whether premises meet the requirements for eligibility set forth in this subdivision shall be made as of the effective date of the certification of eligibility issued pursuant to section twenty-five-z of this article. Notwithstanding the provisions of paragraphs one and two of this subdivision, if, subsequent to such date, the property in which such premises are contained ceases to meet the requirements of paragraph one or two of this subdivision, such premises shall nonetheless remain eligible premises, provided that the eligible business continues to occupy such premises; provided however that if, after such property ceases to meet the requirements of paragraph one or two, an eligible business first leases or purchases additional premises contained in such property, such additional premises shall not be considered eligible premises unless they meet the requirements of paragraph three of this subdivision.

(f) "Eligible area" means an area of a city having a population of one million or more, excluding the area lying south of the center line of 96th Street, in the borough of Manhattan in the city of New York.

(g) "Employment share" means for each employee, partner or sole proprietor of an eligible business, the sum of : (1) the number of full-time work weeks worked by such employee, partner or sole proprietor during the eligible business' taxable year divided by the number of weeks in the taxable year, and (2) the number of part-time work weeks worked by such employee, partner or sole proprietor during the eligible business' taxable year divided by an amount equal to twice the number of weeks in the taxable year. For purposes of this subdivision, "full-time work week" shall mean a week during which at least thirty-five hours of gainful work has been performed by such employee, partner or sole proprietor and "part-time work week" shall mean a week during which at least fifteen but less than thirty-five hours of gainful work has been performed by such employee, partner or sole proprietor.

(h) "Aggregate employment shares" means the sum of all employment shares maintained by an eligible business in a taxable year.

(i) "Eligible aggregate employment shares" means the amount, if any, by which the number of aggregate employment shares maintained by an eligible business in an eligible area in the taxable year in which such eligible business claims a credit pursuant to a local law enacted in accordance with section twenty-five-z of this article exceeds the number of aggregate employment shares maintained by an eligible business in an eligible area in the taxable year immediately preceding the taxable year during which such eligible business first relocates as defined in subdivision (j) of this section. Provided, however, that such amount shall not exceed the lesser of: (1) in the case of particular premises to which an eligible business relocates before July first, two thousand three, the highest number of aggregate employment shares maintained by such eligible business in such premises in the taxable year during which such eligible business relocates to such premises or in any of the three immediately succeeding taxable years, exclusive of any employment shares maintained by such eligible business in such premises in the taxable year immediately preceding the taxable year during which such eligible business relocates to such premises; or in the case of particular premises to which an eligible business relocates on or after July first, two thousand three, the highest number of aggregate employment shares maintained by such eligible business in such premises in the taxable year during which such eligible business relocates to such premises or in any of the five immediately succeeding taxable years, exclusive of any employment shares maintained by such eligible business in such premises in the taxable year immediately preceding the taxable year during which such eligible business relocates to such premises; or (2) the number of aggregate employment shares maintained by such eligible business in such premises in the taxable year in which such eligible business claims a credit pursuant to a local law enacted in accordance with section twenty-five-z of this article, exclusive of any employment shares maintained by such eligible business in such premises in the taxable year immediately preceding the taxable year during which such eligible business relocates to such premises; or (3) in the case of an eligible business that has relocated as determined pursuant to subdivision (j) of this section before July first, two thousand three, and has not relocated on or after July first, two thousand three, twice the number of aggregate employment shares maintained by such eligible business outside an eligible area in the taxable year immediately preceding the taxable year during which such eligible business first relocates or, in the case of an eligible business that has relocated as determined pursuant to subdivision (j) of this section on or after July first, two thousand three, the greater of one hundred aggregate employment shares or twice the number of aggregate employment shares maintained by such eligible business outside the eligible area in the taxable year immediately preceding the taxable year during which such eligible business first relocates. If an eligible business relocates to more than one particular premises, the amounts described in paragraphs one and two of this subdivision shall be determined separately with respect to each such particular premises, and in such case the total number of eligible aggregate employment shares for such eligible business shall not exceed the lesser of the amount determined pursuant to paragraph three of this subdivision or the sum of the lesser of the amounts determined pursuant to paragraphs one and two of this subdivision for each particular premises.

(j) "Relocate" means to transfer pre-existing business operations to premises that are or will become eligible premises in accordance with subdivision (e) of this section, or to establish new business operations at such premises, provided that an eligible business shall not be deemed to have relocated unless at least one employee, partner or sole proprietor of the eligible business is transferred to such premises from pre-existing business operations conducted outside the eligible area. The date of relocation to any particular premises shall be any date elected by the eligible business on which an employee, partner or sole proprietor of the eligible business is transferred to the particular premises from pre-existing business operations conducted outside the eligible area and begins work at such premises, provided that such date is subsequent to the date of commencement of improvements to such premises or the real property in which such premises are located, which improvements will meet the requirements of subdivision (e) of this section relating to expenditures for improvements, and provided further that such date of relocation is prior to the date of the issuance of a certification of eligibility pursuant to section twenty-five-z of this article. The year of relocation shall be the taxable year in which such date of relocation falls. The election provided for in this subdivision shall be made prior to the issuance of such certification of eligibility and shall be irrevocable. An eligible business may relocate only once to any particular premises.

(k) "Industrial construction work" means the construction of a new building or structure or the modernization, rehabilitation, expansion or improvement of an existing building or structure for use as industrial property.

(l) "Industrial property" means nonresidential real property containing or which will contain after the completion of industrial construction work a building or structure wherein at least seventy-five percent of the total net square footage is used or immediately available and held out for use for manufacturing activities involving the assembly of goods or the fabrication or processing of raw materials.

(m) "Tax year" and "taxable year" mean, for purposes of this article, insofar as it applies to a gross receipts tax imposed under a local law enacted pursuant to subdivision (a) of section twelve hundred one of the tax law, calendar year.

(n) "Revitalization area" means any area of a city having a population of one million or more, provided that in the city of New York a revitalization area shall mean any district that is zoned C4, C5, C6, M1, M2 or M3 in accordance with the zoning resolution of such city in any area such city except the area lying south of the center line of 96th Street in the borough of Manhattan.

(o) "Total attributed eligible aggregate employment shares" means, for any relocation, the sum of the number of eligible aggregate employment shares apportioned to such relocation pursuant to paragraph one of this subdivision, less any excess shares determined with respect to such relocation pursuant to paragraph two of this subdivision, plus any excess shares attributed to such relocation pursuant to paragraph three of this subdivision. Except as provided in paragraph four of this subdivision, any eligible aggregate employment shares that are attributed to a relocation to particular premises pursuant to paragraph three of this subdivision shall be treated as eligible aggregate employment shares that are maintained with respect to such premises and shall be subject to all provisions of this article and provisions for the credit against a tax imposed under a local law enacted pursuant to part two or three of section one, or section two, of chapter seven hundred seventy-two of the laws of nineteen hundred sixty-six or a gross receipts tax imposed under a local law enacted pursuant to subdivision (a) of section twelve hundred one of the tax law as such provisions pertain to such relocation.

(1) In the case of a business that has relocated once, all eligible aggregate employment shares are apportioned to the premises to which the single relocation took place. In the case of a business that has relocated more than once, eligible aggregate shares are apportioned as follows:

(i) If in a taxable year, the sum for all eligible premises of the lesser of the amounts determined pursuant to paragraphs one and two of subdivision (i) of this section for each particular eligible premises is equal to the total number of eligible aggregate employment shares determined pursuant to such subdivision (i), the number of shares apportioned to each particular eligible premises is the lesser of such amounts for each particular eligible premises;

(ii) If in a taxable year, the sum for all eligible premises of the lesser of the amounts determined pursuant to paragraphs one and two of subdivision (i) of this section for each particular eligible premises is greater than the total number of eligible aggregate employment shares determined pursuant to such subdivision (i), the number of shares apportioned to a particular eligible premises shall be such total number of eligible aggregate employment shares multiplied by a fraction the numerator of which is the lesser of the amounts determined pursuant to paragraphs one and two of subdivision (i) of this section for such premises and the denominator of which is such sum.

(2) "Excess shares" shall mean eligible aggregate employment shares that are apportioned pursuant to paragraph one of this subdivision to a relocation in excess of the limitation amount defined in subparagraphs (i) and (ii) of this paragraph for such relocation.

(i) Subject to the provisions of subparagraph (ii) of this paragraph, for any taxable year in which an eligible business is claiming the credit authorized pursuant to section twenty-five-z of this article, the "limitation amount" shall mean:

(A) for one or more relocations in an eligible business' latest year of relocation as determined pursuant to subdivision (j) of this section, the amount, if any, by which the number of aggregate employment shares maintained by the eligible business in the eligible area in the taxable year in which it is claiming the credit authorized by this article exceeds the number of aggregate employment shares maintained by it in the eligible area in the taxable year immediately preceding such year of relocation; or

(B) for one or more relocations in a specified year of relocation that is not the latest such year of relocation by an eligible business, the amount, if any, by which the number of aggregate employment shares maintained by the eligible business in the eligible area in the taxable year in which it is claiming the credit authorized by this article exceeds the sum of (I) the number of total attributed eligible aggregate employment shares that are attributed in the taxable year in which the credit is claimed to relocations that took place in years of relocation later than the specified year of relocation and (II) the number of aggregate employment shares maintained by it in the eligible area in the taxable year immediately preceding such specified year of relocation.

(ii) In the case of an eligible business that has relocated more than once in the same taxable year, the limitation amount determined in accordance with subparagraph (i) of this paragraph shall be applied to such relocations in the same proportion as the eligible aggregate employment shares apportioned to such relocations pursuant to paragraph one of this subdivision.

(3)

(i) In any taxable year in which there are excess shares, such excess shares, or a portion thereof, from a relocation or relocations that took place in a specified year of relocation shall be attributed in reverse chronological order to any relocations that took place in earlier years of relocation.

(ii) Notwithstanding subparagraph (i) of this paragraph:

(A) no excess shares may be attributed to a relocation unless the number of eligible aggregate employment shares apportioned pursuant to paragraph one of this subdivision to such relocation for the taxable year in which the credit is claimed is less than the highest number of total attributed eligible aggregate employment shares pertaining to such relocation in any taxable year prior to the taxable year in which the credit is claimed;

(B) the sum of the number of shares attributed to such relocation pursuant to subparagraph (i) of this paragraph and the eligible aggregate employment shares apportioned to any such relocation pursuant to paragraph one of this subdivision may not exceed such highest number of total attributed eligible aggregate employment shares; and

(C) such sum may not exceed the limitation amount for such relocation defined in paragraph two of this subdivision.

(4) Notwithstanding the provisions of other paragraphs of this subdivision, any excess shares that are apportioned pursuant to paragraph one of this subdivision to a relocation to particular eligible premises that are not located in a revitalization area as defined in subdivision (n) of this section, but are attributed pursuant to paragraph three of this subdivision to particular eligible premises that are located in such a revitalization area, shall be treated as if such premises to which they are attributed were not in such a revitalization area.

(p) "Particular premises" means all premises occupied by an eligible business within a single building. "Particular eligible premises" means the portion of such particular premises that meets the requirements for eligible premises specified in subdivision (e) of this section.

(q) "Designated additional or replacement premises" means nonresidential premises in the eligible area that (i) are owned or leased by an eligible business that has been certified pursuant to subdivision (b) of section twenty-five-z of this article to receive the credit provided for in this article, and (ii) with regard to which such eligible business obtains the certification provided for in subdivision (e) of section twenty-five-z of this article.

N.Y. Gen. City Law § 25-Y