N.Y. Gen. City Law § 25-DD

Current through 2024 NY Law Chapter 443

Section 25-DD - Definitions

When 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 the city of New York 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 but has not maintained employment shares at premises in the city of New York at any time during the period beginning January first, two thousand two and ending on the date it enters into a lease or a contract to purchase the premises that will qualify as eligible premises pursuant to this article; and (2) on or after July first, two thousand three relocates as defined in subdivision (j) of this section all or part of such business operations.

(b) "Person" 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 predominately 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 predominately 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 predominately of the provision of retail banking services.

(d) "Hotel services" means any services which consist predominately 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 after June thirtieth, two thousand three, or in the case of a relocation by a special eligible business, after June thirtieth, two thousand five, 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 the eligible Lower Manhattan area, and provided further, that in the case of a special eligible business, a lease or contract to purchase such premises is first entered into by the special eligible business after June thirtieth, two thousand five;

(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 after June thirtieth, two thousand three, or in the case of a relocation by a special eligible business, after June thirtieth, two thousand five, 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 the eligible Lower Manhattan area, and provided further, that in the case of a special eligible business, a lease or contract to purchase such premises is first entered into by the special eligible business after June thirtieth, two thousand five; or

(3) in the case of an eligible business, nonresidential premises which are located in the eligible Lower Manhattan area, for which a lease or a contract to purchase is first entered into by an eligible business on or after July first, two thousand three and for which a minimum expenditure has been made on or after such date, for improvements in excess of twenty-five dollars per square foot, or in the case of a special eligible business, non-residential premises that are located in the eligible Lower Manhattan area for which a lease or a contract to purchase is first entered into by the eligible business after June thirtieth, two thousand five, and for which a minimum expenditure has been made after such date for improvements in excess of twenty-five dollars per square foot, provided, however, that, in either case, 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 relocation and the lease commencement date.

Notwithstanding the provisions of paragraphs one and two of this subdivision, if, subsequent to date of certification, 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 or special eligible business continues to occupy such premises; provided however that if, after such property ceases to meet the requirements of such paragraph one or two, an eligible business or special 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 Lower Manhattan area" means the area in the city of New York in the borough of Manhattan lying south of a line running from the intersection of the Hudson River with the Holland Tunnel and running thence north along West Street to the intersection of Clarkson Street, then running east along the centerline of Clarkson Street to the intersection of Washington Street, then running south along the centerline of Washington Street to the intersection of West Houston Street, then east along the centerline of West Houston Street, then at the intersection of the Avenue of the Americas continuing east along the centerline of East Houston Street to the easterly bank of the East River.

(g) "Employment share" means, for each employee, partner or sole proprietor of an eligible business or special 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' or special 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' or special 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. For purposes of this section, employment shares shall not be based upon work weeks attributable to employees, partners or sole proprietors acquired by an eligible business or special eligible business as a result of a merger with, acquisition of another person, or a transaction having a comparable effect, that occurs after June thirtieth, two thousand five, and before the end of the taxable year in which a credit is claimed by such eligible business pursuant to this section, or to successors, if any, to those employees, partners or sole proprietors.

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

(i) "Eligible aggregate employment shares" means

(1) in the case of an eligible business, the amount, if any, of aggregate employment shares maintained by an eligible business in eligible premises in the eligible Lower Manhattan 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-ee of this article. Provided, however, that such amount shall not exceed the lesser of: (i) the highest number of aggregate employment shares maintained by such eligible business in eligible premises in the taxable year during which such eligible business relocates or in any of the five immediately succeeding taxable years; or (ii) the greater of one hundred aggregate employment shares and twice the number of aggregate employment shares maintained by such eligible business outside the city of New York in the taxable year immediately preceding the taxable year during which such eligible business relocates. In determining eligible aggregate employment shares, work weeks at premises prior to the later of the date of relocation and the date such premises meet the requirements of subdivision (e) of this section shall not be taken into account.

(2) In the case of a special eligible business, "eligible aggregate employment shares" means: the amount of aggregate employment shares determined in subparagraph (i) of this paragraph, provided, however, such amount shall not exceed the lowest of the amounts determined in subparagraphs (ii), (iii), (iv) and (v) of this paragraph.

(i) the amount determined in this subparagraph is the number of aggregate employment shares maintained by a special eligible business in eligible premises in the eligible Lower Manhattan area in the taxable year in which such special eligible business claims a credit pursuant to a local law enacted in accordance with section twenty-five-ee of this article less the number of aggregate employment shares maintained by such business in such premises in the taxable year prior to the year of relocation.

(ii) the amount determined in this subparagraph is the amount, if any, by which the number of aggregate employment shares maintained by a special eligible business in the taxable year in the city of New York exceeds the number of New York city base shares.

(iii) the amount determined in this subparagraph is the amount, if any, by which number of aggregate employment shares maintained by a special eligible business in the taxable year in the eligible Lower Manhattan area exceeds the number of Lower Manhattan base shares.

(iv) the amount determined in this subparagraph is the greater of one hundred and twice the number of aggregate employment shares maintained by the special eligible business outside the city of New York in the year prior to the year of relocation.

(v) the amount determined in this subparagraph is:

(A) for the year of relocation, the number of full time work weeks worked by relocated employees in eligible premises after the date of relocation divided by the number of weeks in such taxable year, plus the number of part-time work weeks worked by such employees in such premises after the date of relocation, divided by twice the number of weeks in the taxable year of relocation;

(B) for taxable years after the taxable year of relocation, the lesser of:

(I) the number of relocated employee base shares plus the product of (a) the excess, if any, of the number of aggregate employment shares determined in subparagraph (i) of this paragraph over the number of relocated employee base shares and (b) a fraction, the numerator of which is the number of relocated employee base shares and the denominator of which is the sum of relocated employee base shares and New York city base shares; and

(II) the highest number of eligible aggregate employment shares maintained by the special eligible business in eligible premises during the year of relocation and the five immediately succeeding taxable years.

(j) In the case of an eligible business, "relocate" means to transfer pre-existing business operations to one or more premises which 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 city of New York. The date of relocation shall be the later of: (1) the first day on which the individual so transferred commences work at premises that are or will become eligible premises, and (2) the date of completion of sufficient improvements to the eligible premises at which such individual has commenced work, to meet the requirements of subdivision (e) of this section relating to expenditures for improvements. The taxable year of relocation shall be the taxable year in which the date of relocation occurs. For purposes of this article, an eligible business may relocate only once but may add or substitute other eligible premises throughout the period during which it is authorized pursuant to subdivision (a) of section twenty-five-ee of this article to receive the credit allowed by such section.

(k) "Tax year" and "taxable year" mean, for purposes of this article, in the case of taxpayers authorized to receive the credit allowed by section twenty-five-ee of this article against the tax imposed under a local law enacted pursuant to subdivision (a) of section twelve hundred one of the tax law, calendar year.

(l) "Special 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 the city of New York for the twenty-four consecutive months immediately preceding the taxable year during which such eligible business relocates as defined in subdivision (m) of this section, (2) maintained employment shares at premises in Manhattan in the city of New York at some time during the period beginning January first, two thousand two, and ending on the date it enters into a lease or a contract to purchase the premises that will qualify as eligible premises pursuant to this section, and (3) on or after June thirtieth, two thousand five, relocates as defined in subdivision (m) of this section all or part of such business operations.

(m) In the case of a special eligible business, "relocate" means to transfer pre-existing business operations and employees from one or more qualifying business locations outside the city of New York to one or more premises which are or will become eligible premises in accordance with subdivision (e) of this section. The date of relocation shall be the later of: (1) the first day on which the first individual so transferred commences work at premises that are or will become eligible premises, and (2) the date of completion of sufficient improvements to the eligible premises at which such individual has commenced work to meet the requirements of subdivision (e) of this section relating to expenditures for improvements. The taxable year of relocation shall be the taxable year in which the date of relocation occurs. For purposes of this chapter, a special eligible business may relocate only once but may add additional eligible premises throughout the period during which it is authorized pursuant to subdivision (a) of section twenty-five-ee of this article to receive the credit allowed by such section.

(n) "Relocated Employee" means an employee of a special eligible business who (1) has worked at a qualifying business location of the eligible business outside of the city of New York continuously, full-time or part-time, for the ten work weeks prior to the date of relocation and continuously from the date of relocation until the date of transfer to eligible premises, (2) is transferred to eligible premises, and (3) continues to work for the eligible business at the eligible premises for at least ten full work weeks after the date of transfer.

(o) "Relocated employee base shares" means the number of full-time work weeks worked by relocated employees in eligible premises during the twelve calendar months after the month of relocation, divided by the number of weeks in such twelve months, plus the number of part-time work weeks worked by such employees in such premises divided by twice the number of weeks in such months.

(p) "New York city base shares" means the number of aggregate employment shares maintained by the special eligible business in the city of New York in the year prior to the year of relocation.

(q) "Lower Manhattan base shares" means the number of aggregate employment shares maintained by the special eligible business in the eligible Lower Manhattan area in the year prior to the year of relocation.

(r) "Qualifying business location" means a business location of a special eligible business located outside the city of New York at which such business has been conducting substantial business operations for the twenty-four months immediately preceding the year of relocation.

N.Y. Gen. City Law § 25-DD