Bill Text: NY A03554 | 2017-2018 | General Assembly | Introduced
Bill Title: Relates to investment management services to a partnership or other entity.
Spectrum: Partisan Bill (Democrat 57-1)
Status: (Introduced - Dead) 2018-01-03 - referred to ways and means [A03554 Detail]
Download: New_York-2017-A03554-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3554 2017-2018 Regular Sessions IN ASSEMBLY January 27, 2017 ___________ Introduced by M. of A. AUBRY, BICHOTTE, BRINDISI, FARRELL, RYAN, ORTIZ, STIRPE, PICHARDO, M. G. MILLER, MOSLEY, LIFTON, COOK, BLAKE, ABINANTI, JAFFEE, HYNDMAN, CAHILL, GOTTFRIED, HOOPER, JOYNER, PEOPLES-STOKES, JEAN-PIERRE, SEPULVEDA, STECK, ROSENTHAL, FAHY -- Multi-Sponsored by -- M. of A. BARRON, CYMBROWITZ, DINOWITZ, GLICK, HEVESI, KEARNS, LENTOL, MAGEE, RAMOS, SIMON, SKARTADOS, THIELE -- read once and referred to the Committee on Ways and Means AN ACT to amend the tax law, in relation to investment management services to a partnership or other entity The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraph (a) of subdivision 6 of section 208 of the tax 2 law, as amended by section 5 of part T of chapter 59 of the laws of 3 2015, is amended to read as follows: 4 (a) (i) The term "investment income" means income, including capital 5 gains in excess of capital losses, from investment capital, to the 6 extent included in computing entire net income, less, (A) in the 7 discretion of the commissioner, any interest deductions allowable in 8 computing entire net income which are directly or indirectly attribut- 9 able to investment capital or investment income, (B) any of capital gain 10 included in federal taxable income that has to be recharacterized as 11 business income pursuant to paragraph (u) of subdivision nine of this 12 section; provided, however, that in no case shall investment income 13 exceed entire net income. (ii) If the amount of interest deductions 14 subtracted under subparagraph (i) of this paragraph exceeds investment 15 income, the excess of such amount over investment income must be added 16 back to entire net income. (iii) If the taxpayer's investment income 17 determined without regard to the interest deductions subtracted under 18 subparagraph (i) of this paragraph comprises more than eight percent of 19 the taxpayer's entire net income, investment income determined without EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07791-01-7A. 3554 2 1 regard to such interest deductions cannot exceed eight percent of the 2 taxpayer's entire net income. 3 § 2. Subparagraph (ix) of paragraph (a) of subdivision 1 of section 4 210 of the tax law is amended by adding a new clause 8 to read as 5 follows: 6 (8) the net operating loss deduction allowed under section one hundred 7 seventy-two of the internal revenue code shall for purposes of this 8 paragraph be determined taking into consideration the re-characteriza- 9 tion of income pursuant to paragraph (u) of subdivision nine of section 10 two hundred eight of this article. 11 § 3. Subdivision 9 of section 208 of the tax law is amended by adding 12 a new paragraph (u) to read as follows: 13 (u) Special rule for corporate partners performing investment manage- 14 ment services. In the case of a taxpayer that is a partner who performs 15 investment management services (as defined in subsection (h) of section 16 six hundred thirty-one of this chapter) for the partnership, the taxpay- 17 er will not be treated as a partner for purposes of this article with 18 respect to the amount of the partner's distributive share of income, 19 gain, loss and deduction (including any guaranteed payments) which is in 20 excess of the amount that such distributive share would have been if the 21 partner had performed no investment management services. Instead, such 22 excess amount shall be treated as an amount received from a trade or 23 business carried on by the taxpayer, and notwithstanding any state or 24 federal law to the contrary, such excess amount shall be characterized 25 as a payment for services rendered. For purposes of this paragraph, the 26 amount of the distributive share that would have been determined if the 27 partner performed no services, shall not be less than zero. 28 § 4. Section 210 of the tax law is amended by adding a new subdivision 29 4 to read as follows: 30 4. Rule for investment management services to a partnership or other 31 entity. For purposes of subdivision three of this section, the amount of 32 distributive share of partnership income, gain, loss or deduction 33 (including any guaranteed payments) received as a partner by a corpo- 34 ration which renders investment management services to a partnership or 35 other entity, as defined in subsection (h) of section six hundred thir- 36 ty-one of this chapter, which is in excess of the amount that such 37 distributive share would have been if the partner had performed no 38 investment management services, shall be treated as a business receipt 39 that arises from the performance of services. For purposes of this 40 subdivision, the amount of the distributive share that would have been 41 determined if the partner performed no services, shall not be less than 42 zero. 43 § 5. Subsection (b) of section 617 of the tax law, as amended by chap- 44 ter 606 of the laws of 1984, is amended to read as follows: 45 (b) Character of items. Each item of partnership and S corporation 46 income, gain, loss, or deduction shall have the same character for a 47 partner or shareholder under this article as for federal income tax 48 purposes. Where an item is not characterized for federal income tax 49 purposes, it shall have the same character for a partner or shareholder 50 as if realized directly from the source from which realized by the part- 51 nership or S corporation or incurred in the same manner as incurred by 52 the partnership or S corporation. See subsections (f) and (g) of 53 section six hundred thirty-two of this article for special rules for 54 partners and shareholders performing investment management services. 55 § 6. Subsection (d) of section 631 of the tax law, as amended by chap- 56 ter 28 of the laws of 1987, is amended to read as follows:A. 3554 3 1 (d) Purchase and sale for own account.-- (1) A nonresident, other than 2 a dealer holding property primarily for sale to customers in the ordi- 3 nary course of his or her trade or business, shall not be deemed to 4 carry on a business, trade, profession or occupation in this state sole- 5 ly by reason of the purchase and sale of property or the purchase, sale 6 or writing of stock option contracts, or both, for his or her own 7 account. 8 (2) This subsection shall not apply to a partner or shareholder 9 performing investment management services as described under subsection 10 (h) of this section. 11 § 7. Section 631 of the tax law is amended by adding a new subsection 12 (h) to read as follows: 13 (h) Investment management services. (1) For purposes of this section, 14 the term "investment management services" to a partnership, S corpo- 15 ration or other entity means providing a substantial quantity of any of 16 the following services to the partnership, S corporation or other enti- 17 ty: 18 (i) advising the partnership, S corporation, or entity as to the 19 advisability of investing in, purchasing, or selling any specified 20 asset, or 21 (ii) managing, acquiring, or disposing of any specified asset, or 22 (iii) arranging financing with respect to acquiring specified assets, 23 or 24 (iv) any activity in support of any service described in subparagraphs 25 (i) through (iii) of this paragraph. 26 (2) For purposes of this subsection, the term "specified asset" means 27 securities (as defined in section four hundred seventy-five (c)(2) of 28 the internal revenue code without regard to the last sentence thereof), 29 real estate held for rental or investment, interests in partnerships, 30 commodities (as defined in section four hundred seventy-five (e)(2) of 31 the internal revenue code), or options or derivative contracts with 32 respect to any of the foregoing. 33 (3) A partner or shareholder will not be deemed to be providing 34 investment management services under this subsection if at least eighty 35 percent of the average fair market value of the specified assets of the 36 partnership, S corporation or other entity during the taxable year 37 consist of real estate. 38 § 8. Section 632 of the tax law is amended by adding two new 39 subsections (f) and (g) to read as follows: 40 (f) Special rule for partners performing investment management 41 services. In the case of a partner who performs investment management 42 services for the partnership, the partner will not be treated as a part- 43 ner for purposes of this article with respect to the amount of the part- 44 ner's distributive share of income, gain, loss and deduction (including 45 any guaranteed payments) which is in excess of the amount such distribu- 46 tive share would have been if the partner had performed no investment 47 management services. Instead, such excess amount shall be treated as an 48 amount received from a trade, business, profession or occupation carried 49 on in the partner's own capacity for purposes of this article. Notwith- 50 standing any state or federal law to the contrary, such excess amount 51 shall be characterized as a payment for services rendered for purposes 52 of this article, and for purposes of section six hundred thirty-one of 53 this article shall be allocated in accordance with the rules and regu- 54 lations applicable to: 55 (1) individuals rendering personal services in the case of an individ- 56 ual partner, orA. 3554 4 1 (2) a business carried on in New York in the case of a partner that is 2 a partnership, estate or trust, or 3 (3) a corporation under article nine-A of this chapter in the case of 4 a partner that is an S corporation. 5 For purposes of this subsection, the amount of the distributive share 6 that would have been determined if the partner performed no services, 7 shall not be less than zero. 8 (g) Special rule for shareholders performing investment management 9 services. In the case of a shareholder who performs investment manage- 10 ment services for the S corporation, the shareholder will not be treated 11 as a shareholder for purposes of this article with respect to the amount 12 of the shareholder's pro rata share of income, gain, loss and deduction 13 which is in excess of the amount such pro rata share would have been if 14 the shareholder had performed no investment management services. 15 Instead, such excess amount shall be treated as an amount received from 16 a trade, business, profession or occupation carried on in the sharehold- 17 er's own capacity for purposes of this article. Notwithstanding any 18 state or federal law to the contrary, such excess amount shall be char- 19 acterized as a payment for services rendered for purposes of this arti- 20 cle, and for purposes of section six hundred thirty-one of this article 21 shall be allocated in accordance with the rules and regulations applica- 22 ble to: 23 (1) individuals rendering personal services in the case of an individ- 24 ual shareholder, or 25 (2) a business carried on in New York in the case of a shareholder 26 that is an estate or trust. 27 For purposes of this subsection, the amount of the pro rata share that 28 would have been determined if the shareholder performed no services, 29 shall not be less than zero. 30 § 9. For taxable years beginning on or after January 1, 2017 and 31 before January 1, 2018, (i) no addition to tax under subsection (c) of 32 section 685 or subsection (c) of section 1085 of the tax law shall be 33 imposed with respect to any underpayment attributable to the amendments 34 made by this act of any estimated taxes that are required to be paid 35 prior to the effective date of this act, provided that the taxpayer 36 timely made those payments; and (ii) the required installment of esti- 37 mated tax described in clause (ii) of subparagraph (B) of paragraph 3 of 38 subsection (c) of section 685 of the tax law, and the exception to addi- 39 tion for underpayment of estimated tax described in paragraph 1 or 2 of 40 subsection (d) of section 1085 of the tax law, in relation to the 41 preceding year's return, shall be calculated as if the amendments made 42 by this act had been in effect for that entire preceding year. 43 § 10. Income from investment management services as defined in 44 subsection (h) of section 631 of the tax law shall be subject to a 19% 45 "carried interest fairness fee" payable to the state of New York until 46 such time as the commissioner of taxation and finance has notified the 47 legislative bill drafting commission that the United States Congress has 48 passed and the President of the United States has signed legislation 49 having an identical effect with this act applicable to such income 50 earned in all of the states and territories. 51 § 11. This act shall take effect upon enactment into law by the states 52 of Connecticut, New Jersey and Massachusetts of legislation having an 53 identical effect with this act, but if the states of Connecticut, New 54 Jersey and Massachusetts shall have already enacted such legislation, 55 this act shall take effect immediately; provided that the commissioner 56 of taxation and finance shall notify the legislative bill draftingA. 3554 5 1 commission upon the enactment of such legislation by the states of 2 Connecticut, New Jersey and Massachusetts in order that such commission 3 may maintain an accurate and timely effective data base of the official 4 text of the laws of the state of New York in furtherance of effectuating 5 the provisions of section 44 of the legislative law and section 70-b of 6 the public officers law.
