Legislation

§ 658. Requirements concerning returns, notices, records and statements. (a) General. The tax commission may prescribe regulations as to the keeping of records, the content and form of returns and statements, and the filing of copies of federal income tax returns and determinations. The tax commission may require any person, by regulation or notice served upon such person, to make such returns, render such statements, or keep such records, as the tax commission may deem sufficient to show whether or not such person is liable under this article for tax or for collection of tax. The tax commission shall provide a space on the form of returns wherein the taxpayer shall indicate the school district in which the taxpayer is a resident. (b) Identifying numbers.--(1) When required by regulations prescribed by the tax commission: (A) Inclusion in returns.-- Any person required under the authority of this article to make a return, statement, or other document shall include in such return, statement or other document such identifying number as may be prescribed for securing proper identification of such person. (B) Furnishing number to other persons.-- Any person with respect to whom a return, statement, or other document is required under the authority of this article to be made by another person shall furnish to such other person such identifying number as may be prescribed for securing his proper identification. (C) Furnishing number of another person.-- Any person required under the authority of this article to make a return, statement, or other document with respect to another person shall request from such other person, and shall include in any such return, statement, or other document, such identifying number as may be prescribed for securing proper identification of such other person. (2) Limitation.-- (A) Except as provided in subparagraph (B), a return of any person with respect to his liability for tax, or any statement or other document in support thereof, shall not be considered for purposes of subparagraphs (B) and (C) of subsection (1) as a return, statement, or other document with respect to another person. (B) For purposes of subparagraphs (B) and (C) of subsection (1), a return of an estate or trust with respect to its liability for tax, and any statement or other document in support thereof, shall be considered as a return, statement, or other document with respect to each beneficiary of such estate or trust. (3) Requirement of information.-- For purposes of this section, the tax commission is authorized to require such information as may be necessary to assign an identifying number to any person. (c) Partnerships, limited liability companies and S corporations. (1) Partnerships. Every partnership having a resident partner or having any income derived from New York sources, determined in accordance with the applicable rules of section six hundred thirty-one of this article as in the case of a nonresident individual, shall make a return for the taxable year setting forth all items of income, gain, loss and deduction and such other pertinent information as the commissioner may by regulations and instructions prescribe. Such return shall be filed on or before the fifteenth day of the fourth month following the close of each taxable year, for taxable years beginning before January first, two thousand sixteen, and on or before the fifteenth day of the third month following the close of each taxable year, for taxable years beginning on or after January first, two thousand sixteen, except that the due date for the return of a partnership consisting entirely of nonresident noncitizens shall be the date prescribed for the filing of its federal partnership return for the taxable year. For purposes of this paragraph, "taxable year" means a year or a period which would be a taxable year of the partnership if it were subject to tax under this article. (2) S corporations. Every S corporation for which the election provided for in subsection (a) of section six hundred sixty is in effect shall make a return for the taxable year setting forth all items of income, loss and deduction and such other pertinent information as the commissioner of taxation and finance may by regulations and instructions prescribe. Such return shall be filed on or before the fifteenth day of the third month following the close of each taxable year. (3) Filing fees. (A) Every subchapter K limited liability company, every limited liability company that is a disregarded entity for federal income tax purposes, and every partnership which has any income derived from New York sources, determined in accordance with the applicable rules of section six hundred thirty-one of this article as in the case of a nonresident individual, shall on or before the fifteenth day of the third month following the close of each taxable year make a payment of a filing fee. The amount of the filing fee is the amount set forth in subparagraph (B) of this paragraph. The minimum filing fee is twenty-five dollars for taxable years beginning in two thousand eight and thereafter. Limited liability companies that are disregarded entities for federal income tax purposes must pay a filing fee of twenty-five dollars for taxable years beginning on or after January first, two thousand eight. (B) The filing fee will be based on the New York source gross income of the limited liability company or partnership for the taxable year immediately preceding the taxable year for which the fee is due. If the limited liability company or partnership does not have any New York source gross income for the taxable year immediately preceding the taxable year for which the fee is due, the limited liability company or partnership shall pay the minimum filing fee. Partnerships, other than limited liability partnerships under article eight-B of the partnership law and foreign limited liability partnerships, with less than one million dollars in New York source gross income are exempt from the filing fee. New York source gross income is the sum of the partners' or members' shares of federal gross income from the partnership or limited liability company derived from or connected with New York sources, determined in accordance with the provisions of section six hundred thirty-one of this article as if those provisions and any related provisions expressly referred to a computation of federal gross income from New York sources. For this purpose, federal gross income is computed without any allowance or deduction for cost of goods sold. The amount of the filing fee for taxable years beginning on or after January first, two thousand eight will be determined in accordance with the following table: If the New York source gross income is: The fee is: not more than $100,000 $25 more than $100,000 but not over $250,000 $50 more than $250,000 but not over $500,000 $175 more than $500,000 but not over $1,000,000 $500 more than $1,000,000 but not over $5,000,000 $1,500 more than $5,000,000 but not over $25,000,000 $3,000 Over $25,000,000 $4,500 (C) No credits provided by this article may be taken against the fee imposed by this paragraph. (D) Where the filing fee is not timely paid, it shall be paid upon notice and demand and shall be assessed, collected and paid in the same manner as taxes, and for those purposes any reference in this article to tax imposed by this article shall be deemed also to refer to this filing fee. (E) Notwithstanding the provisions of subsection (e) of section six hundred ninety-seven of this article, the commissioner shall provide the statements and other required information included on the filing fee payment form under section three hundred one of the limited liability company law, subdivision (g) of section 121-1500 of the partnership law, and subdivision (f) of section 121-1502 of the partnership law, to the secretary of state for filing. Such provision may also include a copy or image of that portion of the report solely pertinent to such information to the extent feasible. The commissioner may also provide information on noncompliance. (4) Estimated tax of nonresident partners, members and shareholders. (A) General. Every entity which is a partnership, other than a publicly traded partnership as defined in section 7704 of the federal Internal Revenue Code, subchapter K limited liability company or an S corporation for which the election provided for in subsection (a) of section six hundred sixty of this part is in effect, which has partners, members or shareholders who are nonresident individuals, as defined under subsection (b) of section six hundred five of this article, or C corporations, and which has any income derived from New York sources, determined in accordance with the applicable rules of section six hundred thirty-one of this article as in the case of a nonresident individual, shall pay estimated tax on such income on behalf of such partners, members or shareholders in the manner and at the times prescribed by subsection (c) of section six hundred eighty-five of this article. For purposes of this paragraph, the term "estimated tax" shall mean a partner's, member's or shareholder's distributive share or pro rata share of the entity income derived from New York sources, multiplied by the highest rate of tax prescribed by section six hundred one of this article for the taxable year of any partner, member or shareholder who is an individual taxpayer, or paragraph (a) of subdivision one of section two hundred ten of this chapter for the taxable year of any partner, member or shareholder which is a C corporation, whether or not such C corporation is subject to tax under article nine, nine-A or thirty-three of this chapter, and reduced by the distributive share or pro rata share of any credits determined under section one hundred eighty-seven, one hundred eighty-seven-a, six hundred six or fifteen hundred eleven of this chapter, whichever is applicable, derived from the entity. (B) Treatment of payment. Any payment by the entity under this paragraph with respect to a partner, member or shareholder who is an individual shall be deemed to be a payment of estimated tax by the partner, member or shareholder pursuant to subsection (c) of section six hundred eighty-five of this article. (C) Additions to tax. (i) If an entity required by this paragraph to pay estimated tax on behalf of a partner, member or shareholder fails to do so, such entity shall pay a penalty of fifty dollars for each such failure for each such partner, member or shareholder, unless it is shown that such failure is due to reasonable cause and not due to willful neglect. (ii) In the case of an underpayment of estimated tax by the entity, there shall be added to the estimated tax required to be paid by the entity under this paragraph, an amount determined pursuant to subsection (c) of section six hundred eighty-five of this article. (D) Exceptions. (i) This paragraph shall not apply with respect to a partner, member or shareholder for whom estimated tax required to be paid under subparagraph (A) of this paragraph for the taxable year of the partner, member or shareholder does not exceed three hundred dollars. (ii) This paragraph shall not apply with respect to any partner, member or shareholder if the entity is authorized by the commissioner to file a group return and such partner, member or shareholder has elected to be included on the group return, or if the commissioner has issued a waiver of withholding pursuant to this section. The commissioner may issue such waivers in respect of partners, members or shareholders who are not subject to New York income tax, or who establish that they are filing New York income tax returns and paying estimated taxes when due, and in other circumstances in which the commissioner determines that withholding is not necessary to ensure collection of income tax on New York source income allocable to the nonresident or C corporation. (E) Information statements. Every entity required under this paragraph to pay estimated taxes for any of its partners, members or shareholders shall furnish, within thirty days after such estimated tax is paid, to each such partner, member or shareholder a written statement showing the estimated taxes paid by the entity on behalf of such partner, member or shareholder and any other information the commissioner shall prescribe, including any information necessary to identify each partner, member or shareholder on whose behalf the entity has paid estimated taxes. The entity shall provide to the commissioner information necessary to identify the estimated tax paid by the entity for each partner, member or shareholder and information necessary to identify each partner, member or shareholder of the partnership, limited liability company or S corporation, whether or not estimated tax was paid for such partner, member or shareholder by the entity, at such times and in such manner as the commissioner shall prescribe. (d) Information at source. (1) The commissioner of taxation and finance may prescribe regulations and instructions requiring returns of information to be made and filed on or before February twenty-eighth of each year as to the payment or crediting in any calendar year of amounts of six hundred dollars or more to any taxpayer under this article. Such returns may be required of any person, including lessees or mortgagors of real or personal property, fiduciaries, employers, and all officers and employees of this state, or of any municipal corporation or political subdivision of this state, having the control, receipt, custody, disposal or payment of interest, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments or other fixed or determinable gains, profits or income, except interest coupons payable to bearer. Information required to be furnished pursuant to paragraph four of subsection (a) of section six hundred seventy-four on a quarterly combined withholding and wage reporting return covering each calendar quarter of each year and relating to tax withheld on wages paid by an employer to an employee for each calendar quarter, shall constitute the return of information required to be made under this section with respect to such wages. (2) (A) The commissioner shall be authorized to require, by regulation, that any or all of the returns of information referred to in paragraph one of this subsection, the quarterly combined withholding, wage reporting and unemployment insurance returns required by paragraph four of subsection (a) of section six hundred seventy-four and the reports required by section one hundred seventy-one-h of this chapter be filed on magnetic media or in other machine readable form. Such regulations shall conform, to the extent practicable, with corresponding federal regulations and instructions promulgated pursuant to the authority of section six thousand eleven of the federal Internal Revenue Code. Any person required to file two hundred fifty or more of the returns referred to in paragraph one of this subsection may be required to file such returns on magnetic media or in other machine readable form pursuant to the provisions of this paragraph. (B) A filer may seek exemption from the magnetic media filing requirement for a particular period, if the filer proves to the satisfaction of the commissioner of taxation and finance that imposition of such a requirement for that period would result in undue hardship. The commissioner shall take into account (among other relevant factors) the ability of the filer to comply at reasonable cost with such a filing requirement. (C) The regulations provided for in this paragraph may include, but shall not be limited to, the following: (i) a description of the kinds of magnetic media which can be used to satisfy the filing requirement; (ii) a description of the kinds of returns and classes of filers to be subject to the magnetic media or other machine readable form filing requirement; and (iii) procedures governing the voluntary submission by magnetic media or other machine readable form of all or any portion of the returns described in this paragraph. (3) The commissioner may by regulation or instruction require the filing of a report annually by the comptroller or program manager of the New York state college choice tuition savings program, or their designee, setting forth the names and identification numbers of account owners, designated beneficiaries and distributees of family tuition accounts, the amounts contributed to such accounts, the amounts distributed from such accounts and the nature of such distributions as qualified withdrawals or as withdrawals other than qualified withdrawals, and any such other information as the commissioner may require regarding the taxation under this article of amounts contributed to or withdrawn from such accounts. The commissioner may require that any such report also be made to the account owner, designated beneficiary or distributee of any such account. (e) Notice of qualification as receiver, etc. Every receiver, trustee in bankruptcy, assignee for benefit of creditors, or other like fiduciary shall give notice of his qualification as such to the tax commission, as may be required by regulation. (f) (1) Every trust described by subparagraph (D) of paragraph three of subsection (b) of section six hundred five of this article shall make a return for any taxable year in which it makes an accumulation distribution within the meaning of subdivision (b) of section six hundred sixty-five of the internal revenue code to a beneficiary who is a resident, which return shall include (i) information identifying such resident, (ii) the amount of such accumulation distribution, and (iii) such other information as the commissioner may require. In determining whether there has been an accumulation distribution for purposes of this paragraph, such trust shall exclude distributions from income earned by the trust prior to the beneficiary's birth or attaining the age of twenty-one. (2) Every resident trust that does not file the return required by section six hundred fifty-one of this part on the ground that it is not subject to tax pursuant to subparagraph (D) of paragraph three of subsection (b) of section six hundred five of this article for the taxable year shall make a return for such taxable year substantiating its entitlement to that exemption and providing such other information as the commissioner may require. (3) The returns required by this subsection shall be filed on or before the fifteenth day of the fourth month following the close of each taxable year. For purposes of this paragraph, "taxable year" means a year or a period which would be a taxable year of the trust if it were subject to tax under this article. (g) Requirements applicable to tax return preparer. (1) Signature of tax return preparer. Any individual who is a tax return preparer and prepares any return or claim for refund, shall sign such return or claim for refund in accordance with regulations or instructions prescribed by the commissioner. (2) Furnishing identifying numbers. Any return or claim for refund which is prepared by a tax return preparer shall include the identifying number of the preparer required by paragraph one of this subsection to sign such return or claim for refund. In addition, where such individual preparer is an employee of an employer which is a tax return preparer with respect to such return or claim for refund, or where such preparer is a partner in a partnership which is a tax return preparer with respect to such return or claim for refund, then such return or claim for refund shall also include the identifying number of such employer or partnership. Such identifying numbers shall be as prescribed by the commissioner in order to secure the proper identification of such individual preparer, partnership or employer. The responsibility for the inclusion of such identifying numbers shall be as set forth in paragraph two of subsection (u) of section six hundred eighty-five of this article. (3) Furnishing copy to taxpayer. Any person who is a tax return preparer with respect to any return or claim for refund shall furnish a completed copy of such return or claim for refund to the taxpayer not later than the time such return or claim for refund is presented for such taxpayer's signature. (4) Copy or list to be retained by tax return preparer. Any person who is a tax return preparer with respect to any return or claim for refund shall for a three year retention period described in paragraph nine of this subsection: (A) retain a completed copy of such return or claim for refund, or retain, on a list, the name and identification number of the taxpayer for whom such return or claim was prepared, and (B) make such copy or list available for inspection upon request by the commissioner. (5) Tax return preparer defined. For purposes of this article, the term "tax return preparer" means any person who prepares for compensation, or who employs or engages one or more persons to prepare for compensation any return or claim for refund. The preparation of a substantial portion of a return or claim for refund shall be treated as if it were the preparation of such return or claim for refund. Where an employer and one or more employees of such employer are tax return preparers with respect to the same return or claim for refund, or where a partnership and one or more partners in such partnership are tax return preparers with respect to the same return or claim for refund, for purposes of paragraphs three and four of this subsection, such employer or such partnership shall be deemed to be the sole tax return preparer. A person shall not be a "tax return preparer" merely because such person-- (A) furnishes typing, reproducing, or other mechanical assistance, (B) prepares a return or claim for refund of the employer (or of an officer or employee of the employer) by whom he is regularly and continuously employed, or (C) prepares as a fiduciary a return or claim for refund for any person. (6) Person defined. For purposes of this subsection, the term "person" includes an individual, corporation (including a dissolved corporation) or partnership. (7) Return defined. For purposes of this subsection, the term "return" shall mean any return required under this article. (8) Claim for refund defined. For purposes of this subsection, the term "claim for refund" shall mean a claim for refund of or credit against any tax imposed under this article, and shall include any claim for refund of any credit treated as an overpayment of tax under this article. (9) Retention period defined. For purposes of this subsection, the term "retention period" shall mean: (A) in the case of a tax return, the period ending the later of three years after the due date of such return (without regard to extensions) or three years after the date such return was presented to the taxpayer for such taxpayer's signature, and (B) in the case of a claim for refund, the period ending three years after such claim for refund was presented to the taxpayer for such taxpayer's signature. * (10) Mandatory electronic filing by certain tax return preparers. (A)(i) If a tax return preparer prepared more than two hundred original returns during the calendar year beginning on January first, two thousand five, and if, in the calendar year beginning on January first, two thousand six, such tax return preparer prepares one or more authorized returns using tax software, then, for such calendar year two thousand six and for each subsequent calendar year thereafter, all authorized returns prepared by such tax return preparer shall be filed electronically, in accordance with instructions prescribed by the commissioner. (ii) If a tax return preparer prepared more than one hundred original returns during any calendar year beginning on or after January first, two thousand six, and if, in any succeeding calendar year such tax return preparer prepares one or more authorized returns using tax software, then, for such succeeding calendar year and for each subsequent calendar year thereafter, all authorized returns prepared by such tax return preparer shall be filed electronically, in accordance with instructions prescribed by the commissioner. (B) For purposes of this paragraph: (i) "Electronic" means computer technology; provided, however, that the commissioner may, in instructions, provide that use of barcode technology will also satisfy the mandatory electronic filing requirements of this section. (ii) "Authorized return" means any return required under this article which the commissioner has authorized to be filed electronically. (iii) "Original return" means a return required under this article that is filed, without regard to extensions, during the calendar year for which that return is required to be filed. (iv) "Tax software" means any computer software program intended for tax return preparation purposes. * NB Effective January 1, 2030