STATE OF NEW YORK ________________________________________________________________________ 6649 2019-2020 Regular Sessions IN ASSEMBLY March 14, 2019 ___________ Introduced by M. of A. CRESPO -- read once and referred to the Committee on Ways and Means AN ACT to amend the tax law, in relation to thresholds for establishing presence, residency or doing business in the state for out-of-state companies including affiliates of in-state companies that temporarily provide resources and personnel in the state during a state of emer- gency declared by the governor or the President of the United States The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The tax law is amended by adding a new article 42 to read 2 as follows: 3 ARTICLE 42 4 FACILITATING BUSINESS RAPID RESPONSE TO STATE DECLARED DISASTER 5 Section 3100. Short title. 6 3101. Definitions. 7 3102. Business and employee status during disaster period. 8 3103. Transaction taxes and fees. 9 3104. Business or employee activity after disaster period. 10 3105. Notification of out-of-state business during disaster 11 period. 12 3106. Notification of intent to remain in state. 13 3107. Tax exempt overtime earnings. 14 3108. Severability. 15 § 3100. Short title. This article shall be known and may be cited as 16 the "facilitating business rapid response to state declared disasters 17 act of 2019". 18 § 3101. Definitions. For purposes of this article, the following terms 19 shall have the following meanings: 20 1. "Registered business in the state" (or "registered business") means 21 a business entity that is currently registered to do business in the 22 state prior to the declared state disaster or emergency. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07173-01-9A. 6649 2 1 2. "Out-of-state business" means a business entity that has no pres- 2 ence in the state and conducts no business in the state whose services 3 are requested by a registered business or by a state or local government 4 for purposes of performing disaster or emergency related work in the 5 state. Out-of-state business shall also include a business entity that 6 is affiliated with the registered business in the state solely through 7 common ownership. The out-of-state business has no registrations or tax 8 filings or nexus in the state prior to the declared state disaster or 9 emergency. 10 3. "Out-of-state employee" means an employee who does not work in the 11 state, except for disaster or emergency related work, during the disas- 12 ter period. 13 4. "Critical infrastructure" means property and equipment owned or 14 used by communications networks, electric generation, transmission and 15 distribution systems, gas distribution systems, water pipelines, and 16 related support facilities that service multiple customers or citizens 17 including, but not limited to, real and personal property such as build- 18 ings, offices, lines, poles, pipes, structures and equipment. 19 5. "Declared state disaster or emergency" means a disaster or emergen- 20 cy event (a) for which the governor has declared a state of emergency, 21 (b) for which a Presidential declaration of a federal major disaster or 22 emergency has been issued, or (c) other disaster or emergency event 23 within the state for which a good faith response effort is required, and 24 for which the director of the state office of emergency management is 25 given notification from the registered business and such director desig- 26 nates such event as a disaster or emergency thereby invoking the 27 provisions of this article. 28 6. "Disaster period" means a period that begins within ten days of the 29 first day of the governor's declaration or the President's declaration 30 (whichever occurs first) and that extends for a period of sixty calendar 31 days after the end of the declared disaster or emergency period, or for 32 any longer period authorized by the commissioner. 33 7. "Disaster or emergency related work" means repairing, renovating, 34 installing, building, rendering services or other business activities 35 that relate to critical infrastructure that has been damaged, impaired 36 or destroyed by the declared state disaster or emergency. 37 § 3102. Business and employee status during disaster period. 1. An 38 out-of-state business that conducts operations within the state for 39 purposes of performing work or services related to a declared state 40 disaster or emergency during the disaster period shall not be considered 41 to have established a level of presence that would require that business 42 to register, file and/or remit state or local taxes or that would 43 require that business or its out-of-state employees to be subject to any 44 state licensing or registration requirements. This includes any and all 45 state or local business licensing or registration requirements or state 46 and local taxes or fees including, but not limited to, unemployment 47 insurance, sales and use tax or ad valorem tax on equipment brought into 48 the state temporarily for use during the disaster period and then subse- 49 quently removed from the state. For purposes of any state or local tax 50 on or measured by, in whole or in part, net or gross income, including 51 base and overtime pay, or receipts, all activity of the out-of-state 52 business that is conducted in this state pursuant to this article shall 53 not be treated as occurring in this state with respect to any filing 54 requirements for such tax including the filing required for a unitary or 55 combined group of which the out-of-state business may be a part. Also, 56 for the purposes of apportioning income, revenue, or receipts theA. 6649 3 1 performance by an out-of-state business of any disaster or emergency 2 related work shall not be sourced to or shall not otherwise impact or 3 increase the amount of income, revenue, or receipts apportioned to this 4 state. 5 2. Any out-of-state employee as defined in subdivision three of 6 section thirty-one hundred one of this article shall not be considered 7 to have established residency or a presence in the state that would 8 require that person or that person's employer to file and pay income 9 taxes or to be subjected to tax withholdings or to file and pay any 10 other state or local tax or fee during the disaster period. This 11 includes any related state or local employer withholding and remittance 12 obligations for any out-of-state employee's base and overtime pay. 13 § 3103. Transaction taxes and fees. Out-of-state businesses and out- 14 of-state employees shall be required to pay transaction taxes and fees 15 including but not limited to fuel taxes or sales/use taxes on materials 16 or services subject to sales/use tax, hotel taxes, car rental taxes or 17 fees that the out-of-state affiliated business or out-of-state employee 18 purchases for use or consumption in the state during the disaster peri- 19 od, unless such taxes are otherwise exempted during a disaster period. 20 § 3104. Business or employee activity after disaster period. Any out- 21 of-state business or out-of-state employee that remains in the state 22 after the disaster period will become subject to the state's normal 23 standards for establishing presence, residency or doing business in the 24 state and will therefore become responsible for any business or employee 25 tax requirements that ensue. 26 § 3105. Notification of out-of-state business during disaster period. 27 1. The out-of-state business that enters the state shall, upon request, 28 provide the department a statement that it is in the state for purposes 29 of responding to the disaster or emergency, which statement shall 30 include the business' name, state of domicile, principal business 31 address, federal tax identification number, date of entry, and contact 32 information. 33 2. A registered business in the state shall, upon request, provide the 34 information required in subdivision one of this section for any affil- 35 iate that enters the state that is an out-of-state business. The notifi- 36 cation shall also include contact information for the registered busi- 37 ness in the state. 38 § 3106. Notification of intent to remain in state. An out-of-state 39 business or an out-of-state employee that remains in the state after the 40 disaster period shall complete state and local registration, licensing 41 and filing requirements that ensue as a result of establishing the 42 requisite business presence or residency in the state applicable under 43 the existing rules. 44 § 3107. Tax exempt overtime earnings. Any income of a New York resi- 45 dent individual which is attributable to overtime hours during a 46 declared state disaster or emergency and which is disaster or emergency 47 related work, as such terms are defined in this article, shall be exempt 48 from taxation under article twenty-two of this chapter. 49 § 3108. Severability. If any clause, sentence, paragraph, section or 50 part of this article shall be adjudged by any court of competent juris- 51 diction to be invalid, the judgment shall not affect, impair, or invali- 52 date the remainder thereof, but shall be confined in its operation to 53 the clause, sentence, paragraph, section or part thereof directly 54 involved in the controversy in which the judgment shall have been 55 rendered.A. 6649 4 1 § 2. This act shall take effect immediately. Provided, however, the 2 commissioner of the department of taxation and finance is authorized to 3 promulgate any rules or regulations, and develop and issue forms or 4 online processes necessary for the timely implementation of this act.