October 15, 2021
New York may be providing some limited relief for the New York Pass-through entity tax (PTET) election that is due today, October 15, 2021. Per New York’s website as updated today, it explains that if you cannot opt in by the October 15 deadline for one of the below three reasons, to submit a question to the NY PTET support team by October 15.
The website explains when you submit the question, you must explain why you could not opt in on time. You must also retain documentation (such as a screen shot of error messages) to show you attempted to make an election prior to the October 15 deadline and make this documentation available to the department upon request. Once your issue is resolved, New York will contact the taxpayer to assist in completing the election after the deadline.
If you are unable to make the PTET election by October 15 and you do not submit a question with an explanation proving you have one of the issues listed above by October 15, you cannot elect in to PTET for the 2021 taxable year.
Please note that the New York PTET Call Center will be open for additional hours on Friday, October 15 until 12:00 a.m.
September 30, 2021
Victims of Post-Tropical Depression Ida located within the counties identified by the Federal Emergency Management Agency (FEMA) will have an extended due date to December 14, 2021 for tax return filings and payment deadlines occurring between September 15, 2021 and October 2, 2021 for the following:
Please note that the PTET election does not fall within any of the categories of filings eligible for an extension. As such, PTET elections are due by October 15, 2021 regardless of whether a taxpayer was affected by IDA.
In addition, New York City Department of Finance has issued a memorandum to alert taxpayers that are victims of the hurricane that they may be able to have late filing and payment penalties abated or waived in relation to the following taxes: business corporation tax, general corporation tax, unincorporated business tax, banking corporation tax, commercial rent tax, hotel room occupancy tax, real property transfer tax, and utility tax. However, interest will continue to accrue from the original due date of the payment. The counties identified include Bronx, Kings, Nassau, New York, Queens, Richmond, Suffolk, Sullivan, and Westchester.
August 13, 2021
In recent months, New York has started issuing desk audit notices , basically as soon as returns are filed, to taxpayers who have claimed a change of residency or who have reported less income attributable to New York sources than in prior years. New York is issuing desk audit notices, assigning taxpayers case numbers, and requiring a response. Failure to respond promptly with sufficient information will result in an assessment of additional tax along with associated penalties and interest.
Taxpayers receiving these notices related to a reduction in income allocated to New York State will be required to prove that any days allocated outside of New York were for their employer’s necessity – to the Department’s satisfaction. The Department will assess additional tax under the Office of Convenience Rule if the taxpayer is unable to substantiate to the Department’s satisfaction that the days worked outside New York was not for the individual’s convenience. Please note that the Department is taking the position that any day worked from home due to COVID is for the employee’s convenience and not the employer’s necessity.
Taxpayers receiving notices related to a claimed residence change will be required to prove to the Department’s satisfaction that they:
Anecdotally, New York has traditionally not gone after taxpayers who make less than $1M on income allocation issues. Bloomberg is reporting instances of taxpayers who make $100K+ receiving desk audit letters. As per Bloomberg, the New York State Department of Taxation and Finance has issued almost 150,000 audit notices in 2021. As many returns are on extension, and the Department has three (3) years to audit 2020 returns, the number of desk and field audit letters sent to taxpayers on the Office of Convenience issue will only increase.
August 4, 2021
On July 23, 2021, Governor Andrew Cuomo announced the New York City Musical and Theatrical production tax credit which is designed to revitalize the theater district after its close due to the Covid-19 pandemic by offering up to $100 million in tax credits. The two-year program for approved companies which will allow tax credits for up to 25% of qualified production expenditures such as sets, costumes, sound, lighting, salaries, fees, advertising costs, etc. First year program applicants can receive up to $3 million per production and second year applicants up to $1.5 million. Companies can receive credits for tax years beginning on or after January 1, 2021 but before January 1, 2024. Applications must be submitted by December 31, 2022 and final applications no later than 90 days after the production closes or 90 days following the program end date of March 31, 2023, whichever comes first.
June 18, 2021
The New York Department of Taxation and Finance has issued a bulletin alerting taxpayers of updated instructions for Forms IT-2105, Estimated Tax Payment Voucher for Individuals, and IT-2106, Estimated Tax Payment Voucher for Fiduciaries. The updates reflect recently enacted increased personal income tax rates for the following taxpayers: married taxpayers filing jointly with income over $2,155,350; single filers, married taxpayers filing single, and estates and trusts with income over $1,077,550; and heads of household with income over $1,616,450.
May 26, 2021
New York City Mayor Bill de Blasio has issued an executive order suspending the 5.875% hotel occupancy tax imposed by NYC Administrative Code Section 11-2502(3) from June 1, 2021 through August 31, 2021. The daily hotel room tax under NYC Administrative Code § 11-2502(a)(2) remains in effect. For additional information, please see the executive order released on May 18, 2021.
May 13, 2021
New York tax authorities are focused on auditing 2020 income tax returns filed by nonresidents who work for New York employers. During the course of the Coronavirus Pandemic, the New York Department of Taxation and Finance directed nonresidents whose primary office is in New York to count telecommuting days as time working in the state. More specifically, TSB-M-06(5)I, issued in 2006, provides that in order for any work days to be allocated outside of New York State, such services must be because the employer’s necessity and not the employee’s convenience. Applying this rule, unless telecommuting was because of necessity of the employer, employee services rendered remotely were to be considered New York work days. However, there may be legal challenges to that position because taxpayers are arguing telecommuting was a requirement and, in many cases, mandated; rather than simply being based upon convenience. Moreover, the U.S. Supreme Court will rule on a similar issue as requested by New Hampshire, which is challenging Massachusetts’ taxation of residents working remotely.
The New York Department of Taxation and Finance has issued an Advisory Opinion concluding that distributions from an Individual Retirement Account (IRA) funded from a federal thrift savings plan (TSP) can be deducted from federal adjusted gross income (FAGI) when determining New York adjusted gross income (NYAGI) (to the extent the amounts represent a return of the amount rolled over). To calculate the rollover deduction amount, taxpayers can use a fraction, the numerator of which is the TSP rollover amount, and the denominator of which is the IRA’s current value. The product of the fraction is the amount that can be deducted in determining NYAGI. Additionally, while the gain from the rollover IRA may not qualify for that subtraction modification, the amounts may be eligible for the $20,000 subtraction modification.
April 5, 2021
New York state lawmakers released details of the new law legalizing recreational marijuana, which recently passed the state Senate. The legislation provides licensing requirements for marijuana producers, distributors, and retailers. It creates a social and economic equity program to assist individuals disproportionately impacted by cannabis enforcement that want to participate in the industry. The law (S.854A /A.1248A) provides for a 9% state excise tax and 4% local excise tax rate on the retail sales price of marijuana. Dispensaries may be allowed to open as early as 2022.
Distributors will be required to collect an excise tax based on the potency of the amount of THC, the active ingredient in cannabis. The law plans to tax raw flowers at 0.5 cents per milligram of THC, cannabis concentrate at 0.8 cents per milligram, and edibles at 3 cents per milligram.
The bill establishes the Office of Cannabis Management to put in place a framework that would cover medical, adult-use, and cannabinoid hemp. The tax revenue generated will be used to operate the state cannabis program and related social programs.
April 28, 2021
Effective April 16, 2021, New York exempts certain housing development fund projects from sales and use tax, and provides for a COVID-19 debt relief credit (for certain taxpayers doing business under the supervision of the public service commission) against corporate income tax. For specific details, please see L. 2021, A3006 (c. 56). Further, New York has extended certain Brownfield credit periods for two years for specified taxpayers that failed to meet credit requirements due to COVID-19 pandemic restrictions. For information pertaining to the Brownfield credit extension, please see L. 2021, S2508 (c. 58).
April 21, 2021
On April 19, 2021, Governor Andrew Cuomo signed the $212 billion budget for the fiscal 2022 year. Included are measures for a state level pass-through entity tax (PTET) as well as tax relief for the middle-class taxpayers. Two new tax brackets have been introduced for New York’s top income taxpayers. Mobile sports betting and recreational marijuana has also been legalized. A brief overview of some other items included in the budget bill include the following:
April 14, 2021
A New York City-based business provided a subscription service, which gave customers access to expert consultants in a variety of fields. As part of its service package to customers, the taxpayer employed salespeople, IT staff, and consulting managers; but the expert consultants were compensated as independent contractors. The taxpayer sought a refund for a large portion of corporate income taxes it had paid during tax years 2003-2010. Alternative rationales were offered for differing methodologies, but ultimately the taxpayer settled on an allocation whereby only the locations and amounts paid to consultants and research managers who provided services directly to clients should be counted; IT staff was excluded. The City contended that all of these persons contributed to the performance of the services provided to clients. The New York City Tax Appeals Tribunal (2017) found the taxpayer hadn’t allocated income correctly because receipts had to include work done by both employees and consultants in New York City, not all of whom the company had included. The Appellate Court agreed (2021), determining all these individuals were all part of the delivery of services for which clients paid an upfront flat subscription fee.
April 7, 2021
On April 6, 2021, Governor Andrew Cuomo announced an agreement has been reached on the $212 billion budget for the fiscal 2022 year. Included in the budget is New York’s own version of a workaround to the federal limitation of the state and local tax deduction. The Tax Cut and Jobs Act (TCJA) imposed a $10,000 limitation on the amount of state and local tax that individuals (or pass-through business owners) may deduct for federal income tax. Some states, including New Jersey and Connecticut, responded by enacting various workaround bills in an effort to mitigate the impact of the limitation on their state residents. Similarly, New York is planning to impose an entity level tax that would provide a offset credit to the individuals of the flow-through entity to get around the $10,000 limitation.
A brief overview of some other items included in the budget bill include the following:
The New York Department of Taxation and Finance has issued a bulletin explaining the state’s treatment of the federal American Rescue Plan Act of 2021’s $10,200 unemployment compensation exclusion. Because New York decoupled its personal income tax laws from any changes to the Internal Revenue Code as of March 1, 2020, the State does not permit this exclusion for purposes of New York income tax. Therefore, taxpayers must add back this unemployment compensation on their New York income tax return, which is excludable for federal income tax purposes. Taxpayers that have already filed their 2020 personal income tax returns and did not add back the excluded income must file an amended New York State tax return by using IT-558 Form, New York State Adjustments due to Decoupling from the IRC.
The New York Department of Taxation and Finance issued an Advisory Opinion on the application of sales and use tax on the sale and installation of residential and commercial solar energy systems. Petitioners—two partners—sold commercial and residential solar energy systems to customers primarily located in upstate New York. One partner procured and provided components required for the installation of the solar energy systems, and the other partner was responsible for the transportation and installation at customers’ sites. The Department concluded that retail sales and installations of both residential and commercial solar energy systems were exempt from sales tax; but are exempt from local tax only if the locality has enacted the exemption. Please see New York Advisory Opinion No. TSB-A-20(46)S (released March 2021) for further discussion.
Petitioner was a self-described provider of a “cloud-based solution” for webcasting and virtual communications. Specifically, Petitioner provided a platform through which customers are able to conduct audio and video meetings, conferences, webinars, and live presentations with others. To do so, customers upload content that they create onto Petitioner’s platform, and then present this content online. Other than an Internet connection and a device capable of accessing the Internet, neither of which Petitioner sells, no other hardware or software is required to use Petitioner’s product. Customers generally pay an annual fee to use the product; an additional fee can be paid for other optional stand-alone services. The New York Division of Taxation ruled because there was no other hardware or software required to use the taxpayer’s product, it was not subject to tax. However, the Department did not opine on the other “stand-alone services,” indicating more information was needed. Individual facts and circumstances are critically important to determining whether a web-based product is subject to sales tax in New York, so make sure you are receiving proper guidance if conducting business in the State.
April 1, 2021
The New York City Department of Finance, upon request, will waive late filing and late payment penalties for individual unincorporated business tax (UBT) taxpayers, if such taxpayers complete filing payment on or before May 17, 2021. However, interest will accrue at the underpayment rate for the late payments. UBT taxpayers can request a penalty abatement by using the Department’s portal, sending an email, filing a paper return and writing “21” at the top of the page, or request an abatement in writing.
March 25, 2021
New Jersey has indicated that with respect to combined returns, tax credits belong to the taxable member that earned them, unless a specific statute authorizes the tax credit to be earned or awarded at the group level. Any credit carryover available for future use belongs to the taxable member that originally earned the credit. If a member leaves the group, that member takes with them any tax credit/carryforward they generated. Any carryforward must be reduced by the amount that is used by the group and/or member. For specific details, please consult New Jersey Division of Taxation Technical Bulletin TB-90(R) (issued March 18, 2021).
Revised budget proposals from each of the New York State Assembly and the New York State Senate would include three additional personal income tax brackets for individuals with income over $2.155 million. Each respective proposal includes the same three new tax rates–9.85 percent, 10.85 percent and 11.85 percent—but imposes such rates at differing income thresholds. The current maximum individual tax rate in New York is 8.82 percent. The new brackets and rates would be effective for the 2021 tax year.
Revised budget proposals from each of the New York State Assembly and the New York State Senate would include a one percent (1%) surcharge on the capital gains of certain individuals for tax years beginning on or after January 1, 2021. The capital gain surcharge would be imposed in addition to individual income tax. Further, both proposals call for a surcharge to be imposed on corporations for tax years beginning on or after January 1, 20201. While both surcharges are structured differently, in either case the tax would apply to corporations with income or receipts above a designated threshold. The Assembly proposal calls for an 18 percent surcharge, while the Senate proposal would permanently raise the corporate franchise tax rate from 6.5% to 9.5%. Lastly, the Assembly version of the Bill would reinstate the 0.15 percent capital base tax that had previously been repealed for tax years beginning in 2021.
March 23, 2021
The New York Department of Taxation and Finance has issued a notice alerting taxpayers that the 2020 individual tax returns and related payments are now due on May 17, 2021. The Department emphasizes that the extension is for individual personal income tax returns only. However, estimated tax payments for 2021 have not been extended and are still due on April 15, 2021. (New York State Department of Taxation and Finance Important Notice No. N-21-1, 03/19/2021; https://www.tax.ny.gov/pdf/notices/n21-1.pdf.)
March 9, 2021
New York has proposed Assembly Bill 5215 and Senate Bill 3980, which would impose a new tax on the purchase of securities having a New York connection. “Security” would be broadly defined to include shares of stock, partnership interests, bonds, notes and derivative financial instruments, such as options, futures contracts, etc. Varying tax rates would apply to covered transactions, and a hierarchy would apply to determine who pays the tax (i.e. the location where the transaction cleared, the broker, the purchaser, the seller, or the payor). Similarly, New Jersey Assembly Bill 4402 and Senate Bill 2902 would impose a tax on persons or entities that process 10,000 or more financial transactions through electronic infrastructure located in New Jersey during the year. The tax rate would be $0.0025 per financial transaction processed through electronic infrastructure in New Jersey. For specific details, each state’s respective proposals should be reviewed.
An LLC taxpayer—owned by two family trusts—purchased a one-half interest in a Picasso painting. The other 50-percent purchaser was the father of the two sons in whose name the trusts were established. Sales tax was paid on the transaction by both purchasers. A few years later—subsequent to a lease of the painting structured between the LLC and the father—the LLC sought a refund for the sales tax it paid on its original purchase of the painting on the grounds the purchase was a sale for resale. Retroactively going back and using the lease as a basis for sale for resale argument was not successful. New York reasoned that in order to be a sale for resale, the taxpayer would have needed to show its sole purpose for purchasing the painting was to lease it. Here, however, the additional (and/or primary) purpose for purchasing the painting was because it was an investment and added to the taxpayer’s art collection.
February 25, 2021
In a recent Tax Appeals decision, New York held sales tax was owed on certain items transferred as part of an LLC acquisition. The taxpayer argued it was only intangible equity interests that were acquired, using the purchase agreement for its support. The court rejected that argument, and instead compartmentalized the items transferred, holding: tangible personal property transferred was subject to sales tax; the custom software would have been taxable if sold to a third-party, but because the transfer was between affiliates it was exempt; and assets related to buildouts of office space were qualified leasehold improvements exempt from sales tax. Withum can help you identify any income tax or sales tax related issues that may be triggered upon the sale of a business or business assets.
May 2, 2020
New York’s budget bill decouples from the CARES Act’s increase to the limitation on the business interest deduction, according to IRC § 163 (j)(10)(A)(i). Also, any references in New York’s personal income tax laws to the IRC will not include changes made to the IRC after March 1, 2020, for taxable years beginning before 2022. Highlights of the bill include the following:
Personal income tax
For New York City, the current personal income tax rates are extended through 2022, thereby delaying the income tax changes to taxable years beginning after 2023.
Sales and Use tax
Approximately 40 or so counties and three cities (i.e., Oswego, Yonkers, and New Rochelle) are allowed to impose additional sales and use taxes until November 2023.
The law extends the sales and use tax exemption to November 30, 2016, for certain purchases and services associated with the World Trade Center and Battery Park areas.
Real property tax
For the fiscal year 2021, special assessing units, which are cities, cannot increase the current base proportion of more than 5%. For special assessing units, which are not cities, cannot increase the current base proportion in the 2020 assessment roll to more than 1%.
For additional information, refer here.
A newsletter was recently issued by The New York Department of Taxation and Finance reminding tax professionals of the information on its website to provide relief during the COVID-19 pandemic. This information includes the extension of the income tax filing and payment due date to July 15, 2020, for individuals, fiduciaries, and corporations. Tax professionals should also have clients contact the Department if they cannot make their regularly scheduled tax payments due to COVID-19. The Department reminds tax professionals that the monthly sales tax return is due on May 20, 2020. For additional information, go to the Q&A section here.
April 2, 2020
The NYC Department of Finance (“Department”) wants businesses to comply with the regular filing due date, as a Finance Memorandum was issued stating that the NYC Unincorporated Business Income Tax Returns and Estimated Tax Payments remain due April 15, 2020. However, extensions will still be accepted for those businesses that need more time in light of recent events. In addition, an abatement of penalties will be under the discretion of the NYC Commissioner, who plans to use his authority liberally, but interest remains statutory.
Likewise, the same holds true for the General Corporation Tax due from S-corporations, which were due March 16, 2020, and Business Income taxes due from C-corporations and Banks, which are due April 15, 2020. Returns and estimated income tax voucher payments are due when required by law, with a liberal abatement of penalties, and an accrual of statutory interest. While the Department did not provide for a blanket extension to a specified date (i.e., NYS extended to July 15th), the Department does plan on approving extension requests. Although the Department is complying with the statutory requirements for filing, the Department does want to give taxpayers flexibility, as seeking legislation during this emergency would have been too difficult.
March 21, 2020
New York state’s income tax filing deadline is being moved to July 15 to comply with the federal government’s decision to push back the traditional filing date due to the coronavirus outbreak.
More on Taxes and the Coronavirus Pandemic.
Disclaimer: Please note this is the information that is readily available at this time, it is subject to change so please consult your Withum tax advisor.
Pursuant to the enactment of the 2019-2020 Budget Bill, the Department of Taxation and Finance issued a technical memorandum discussing the sales tax collection requirements for marketplace providers. The memorandum reflects an increase in the sales threshold amount from $300,000 to $500,000, which is retroactive to June 1, 2019. Taxpayers affected by this change must register with the Department at least 20 days before beginning business in the state. This memorandum supersedes TSB-M-19(2)S issued on May 31, 2019. (New York Technical Service Bureau Memorandum No. TSB-M-19(2.1)S, 17/10/2019.)
For tax years beginning on or after January 1, 2018, the definition of a qualified New York manufacturer has been changed to use the New York State adjusted basis rather than the federal adjusted basis when determining whether a manufacturer meets the $1 million or $100 million property thresholds for determining eligibility for the manufacturer’s tax rate reductions and the real property tax credit. A qualified New York manufacturer is a manufacturer (or in the case of a combined report, a combined group) that is principally engaged in the production of goods by manufacturing, processing, assembling, refining, mining, extracting, farming, agriculture, horticulture, floriculture, viticulture, or commercial fishing during the tax year that either has property in New York State of the type described for the investment tax credit that has an adjusted basis for New York State tax purposes of at least $1 million at the end of the tax year, or has all of its real and personal property in New York State. (New York Technical Service Bureau Memorandum No. TSB-M-19(5)C, (6)I, 10/18/2019.)
The New York City Department of Finance has released a new issue of its Business Tax Practitioner Newsletter, which discusses the Tax Cuts and Jobs Act (TCJA) as it relates to changes for business tax filers including reporting IRC § 965 income, foreign-derived intangible income (FDII), and global intangible low-taxed income (GILTI). In addition, the newly amended Real Property Income and Expense (RPIE) rules were discussed with respect to the increased penalties for owners of income-producing property who fail to file RPIE statements for three consecutive years. The penalty is increased to 5% of the final actual assessed value for the calendar year in which such statement was to be filed. (NYC Dept. of Finance Business Tax Practitioner Newsletter, 10/01/2019, released 10/16/2019.)
Effective December 1, 2019, a new 20% supplemental sales tax will apply to retail sales of vapor products in New York, which should be collected by a vapor products dealer. Any business that intends to sell vapor products must be registered as a vapor products dealer before making sales of vapor products. The Tax Department is developing an online registration process. In addition, if a taxpayer has debit blocks on their bank account, even if the taxpayer has already authorized sales tax payments to the Tax Department, the taxpayer must communicate with their bank to authorize their vapor products registration payment.
This summary highlights the corporation tax changes that were part of the 2019- 2020 New York State budget. Most notably, several tax law provisions were amended, including the contributions to the capital of a corporation, entire net income for stock life insurance companies, and unrelated business taxable income. Additionally, electronic filing and payment mandates have been extended through December 31, 2024, and the tax shelter penalty and reporting requirements have been extended through July 1, 2024.
The New York Department of Taxation and Finance issued technical memorandum TSB-M-19(4)C, (5)I which discusses the individual income and corporate income tax credit budget legislation enacted in 2019. New credits were added to the law, which include the Central Business District Toll credit, Employer-Provided Child Care credit, and the Recovery Tax credit. The Empire State Commercial Production credit and Employee Training Incentive Tax credit provisions were amended. In addition, the Empire State Film Production and Empire State Film Post-Production Tax credit as well as the Workers with Disability Tax credit were extended to 2024 and 2022, respectively.
Aprl 2, 2020
NYC Employee Retention Grant Program
The City is offering small businesses with fewer than 5 employees a grant to cover 40% of payroll costs for two months to help retain employees.
Eligibility Criteria for the NYC Employee Retention Grant Program
Businesses, including non-profits, must:
NYC Small Business Continuity Loan Fund
Businesses with less than 100 employees and at least a 25% drop in sales caused by COVID-19 will qualify for loans of up to $75,000, with no interest.
Eligibility Criteria for the NYC Small Business Continuity Loan Fund