Section 209-B. Temporary metropolitan transportation business tax surcharge

1.  For the privilege of exercising its corporate franchise, or of doing
  business, or of employing capital, or of owning or leasing property in a
  corporate or organized capacity, or of  maintaining  an  office  in  the
  metropolitan  commuter  transportation  district, for all or any part of
  its taxable year, there is hereby imposed on  every  corporation,  other
  than  a New York S corporation, subject to tax under section two hundred
  nine of this article, or any receiver,  referee,  trustee,  assignee  or
  other  fiduciary,  or  any  officer or agent appointed by any court, who
  conducts the business of any such corporation,  for  the  taxable  years
  commencing  on  or  after January first, nineteen hundred eighty-two but
  ending before  December  thirty-first,  two  thousand  thirteen,  a  tax
  surcharge, in addition to the tax imposed under section two hundred nine
  of  this  article, to be computed at the rate of eighteen percent of the
  tax imposed under such section two hundred nine for such  taxable  years
  or  any  part of such taxable years ending before December thirty-first,
  nineteen  hundred  eighty-three  after  the  deduction  of  any  credits
  otherwise  allowable  under  this  article, and at the rate of seventeen
  percent of the tax imposed under such section for such taxable years  or
  any part of such taxable years ending on or after December thirty-first,
  nineteen  hundred  eighty-three  after  the  deduction  of  any  credits
  otherwise allowable under this article;  provided,  however,  that  such
  rates  of tax surcharge shall be applied only to that portion of the tax
  imposed under section  two  hundred  nine  of  this  article  after  the
  deduction of any credits otherwise allowable under this article which is
  attributable  to  the taxpayer's business activity carried on within the
  metropolitan commuter transportation district;  and  provided,  further,
  that the tax surcharge imposed by this section shall not be imposed upon
  any  taxpayer  for  more than three hundred seventy-two months. Provided
  however, that for taxable years  commencing  on  or  after  July  first,
  nineteen  hundred ninety-eight, such surcharge shall be calculated as if
  the tax imposed under section two  hundred  ten  of  this  article  were
  imposed under the law in effect for taxable years commencing on or after
  July  first,  nineteen  hundred  ninety-seven  and  before  July  first,
  nineteen hundred ninety-eight. Provided however, that for taxable  years
  commencing on or after January first, two thousand seven, such surcharge
  shall  be calculated using the highest of the tax bases imposed pursuant
  to paragraphs (a), (b), (c) or (d) of subdivision  one  of  section  two
  hundred  ten  of this article and the amount imposed under paragraph (e)
  of subdivision one of such section two  hundred  ten,  for  the  taxable
  year; and, provided further that, if such highest amount is the tax base
  imposed  under  paragraph  (a), (b) or (c) of such subdivision, then the
  surcharge shall be computed as if the tax rates  and  limitations  under
  such  paragraph  were the tax rates and limitations under such paragraph
  in effect for taxable years commencing on or after July first,  nineteen
  hundred   ninety-seven   and   before   July   first,  nineteen  hundred
  ninety-eight.
    2. The portion of the taxpayer's business activity carried  on  within
  the metropolitan commuter transportation district shall be determined by
  multiplying  the  tax  imposed  under  section  two hundred nine of this
  article by a percentage to be determined as follows:
    (a) ascertaining  the  percentage  which  the  average  value  of  the
  taxpayer's  real and tangible personal property, whether owned or rented
  to it, within the metropolitan commuter transportation  district  during
  the  period  covered by its report bears to the average value of all the
  taxpayer's real and tangible personal property, whether owned or  rented
  to  it,  within  the  state  during  such period; provided that the term
  "value of the taxpayer's real and tangible personal property" shall have

  the same meaning as is ascribed to that  term  by  subparagraph  one  of
  paragraph (a) of subdivision three of section two hundred ten;
    (b)  ascertaining  the  percentage which the receipts of the taxpayer,
  computed on the cash  or  accrual  basis  according  to  the  method  of
  accounting  used  in  the  computation of its entire net income, arising
  during such period from:
    (1) sales of its tangible personal property where shipments  are  made
  to points within the metropolitan commuter transportation district,
    (2) services performed within the metropolitan commuter transportation
  district,  provided, however, that (i) in the case of a taxpayer engaged
  in the  business  of  publishing  newspapers  or  periodicals,  receipts
  arising  from  sales  of  advertising  contained  in such newspapers and
  periodicals shall be deemed to arise from services performed within  the
  metropolitan  commuter  transportation  district to the extent that such
  newspapers  and  periodicals  are  delivered  to   points   within   the
  metropolitan  commuter  transportation  district,  (ii) receipts from an
  investment company  from  the  sale  of  management,  administration  or
  distribution  services  to  such  investment  company shall be deemed to
  arise  from  services  performed  within   the   metropolitan   commuter
  transportation  district  to the extent set forth in subparagraph six of
  paragraph (a) of subdivision three of section two hundred  ten  of  this
  chapter  (except  that  references in such subparagraph six to the state
  shall be deemed, for purposes of  application  to  this  clause,  to  be
  references  to the metropolitan commuter transportation district), (iii)
  in the case of taxpayers principally engaged  in  the  activity  of  air
  freight  forwarding  acting  as principal and like indirect air carriage
  receipts arising from such activity shall arise from services  performed
  within the metropolitan commuter transportation district as follows: one
  hundred  percent  of  such  receipts  if  both  the  pickup and delivery
  associated with such receipts are  made  in  the  metropolitan  commuter
  transportation district and fifty percent of such receipts if either the
  pickup  or  delivery  associated  with  such  receipts  is  made  in the
  metropolitan commuter transportation district, and (iv) in the case of a
  taxpayer which is a  registered  securities  or  commodities  broker  or
  dealer,  the receipts specified in subparagraph nine of paragraph (a) of
  subdivision three of section two hundred ten of this  article  shall  be
  deemed to arise from services performed within the metropolitan commuter
  transportation  district  to  the  extent set forth in such subparagraph
  nine (except that references in such  subparagraph  nine  to  the  state
  shall  be  deemed, for purposes of the application of this clause, to be
  references to the metropolitan commuter transportation district),
    (3) rentals from property situated  and  royalties  from  the  use  of
  patents  or  copyrights  within the metropolitan commuter transportation
  district, and receipts from the sales of rights for  closed-circuit  and
  cable  television transmissions of an event (other than events occurring
  on a regularly scheduled basis) taking  place  within  the  metropolitan
  commuter  transportation  district  as  a  result  of  the  rendition of
  services by employees of the corporation, as athletes,  entertainers  or
  performing  artists,  but  only  to  the  extent  that such receipts are
  attributable to such transmissions  received  or  exhibited  within  the
  metropolitan communter transportation district, and
    (4)  all  other  business  receipts  earned  within  the  metropolitan
  commuter transportation district,  bear  to  the  total  amount  of  the
  taxpayer's receipts, similarly computed, arising during such period from
  all   sales  of  its  tangible  personal  property,  services,  rentals,
  royalties, receipts from the sales  of  rights  for  closed-circuit  and
  cable  television  transmissions  and  all  other business transactions,
  within the state;

    (c) ascertaining the percentage of the total wages, salaries and other
  personal service compensation, similarly computed, during  such  period,
  of  employees  within the metropolitan commuter transportation district,
  except general executive officers, to  the  total  wages,  salaries  and
  other  personal  service  compensation,  similarly computed, during such
  period, of all the taxpayer's employees within the state, except general
  executive officers; and
    (d) adding together the percentages so  determined  and  dividing  the
  result by the number of percentages.
    2-a.  (a)  A  taxpayer  principally engaged in the conduct of aviation
  (other than air freight forwarders acting as principal and like indirect
  air carriers and other  than  as  provided  in  paragraph  (c)  of  this
  subdivision) shall, notwithstanding the provisions of subdivision two of
  this  section, determine the portion of its business activity carried on
  within the metropolitan commuter transportation district by  multiplying
  the  tax  imposed  under section two hundred nine of this article by the
  arithmetic average of the following three percentages:
    (i) the  percentage  determined  by  dividing  aircraft  arrivals  and
  departures  within  the metropolitan commuter transportation district by
  the taxpayer during the period  covered  by  its  report  by  the  total
  aircraft  arrivals  and  departures  within the entire state during such
  period;  provided,  however,  arrivals   and   departures   solely   for
  maintenance or repair, refueling (where no debarkation or embarkation of
  traffic occurs), arrivals and departures of ferry and personnel training
  flights  or arrivals and departures in the event of emergency situations
  shall  not  be  included  in  computing  such  arrival   and   departure
  percentage;  provided,  further,  the  commissioner may also exempt from
  such percentage aircraft arrivals  and  departures  of  all  non-revenue
  flights  including  flights  involving the transportation of officers or
  employees receiving air transportation to perform maintenance or  repair
  services  or  where  such  officers  or  employees  are  transported  in
  conjunction with an emergency situation or the investigation of  an  air
  disaster  (other  than  on  a scheduled flight); provided, however, that
  arrivals and departures of flights transporting officers  and  employees
  receiving  air  transportation  for  purposes other than specified above
  (without regard to remuneration) shall be  included  in  computing  such
  arrival and departure percentage;
    (ii) the percentage determined by dividing the revenue tons handled by
  the taxpayer at airports within the metropolitan commuter transportation
  district  during  such period by the total revenue tons handled by it at
  airports within the entire state during such period; and
    (iii) the percentage determined by dividing the taxpayer's originating
  revenue within the metropolitan  commuter  transportation  district  for
  such period by its total originating revenue within the entire state for
  such period.
    As  used  herein the term "aircraft arrivals and departures" means the
  number of landings and takeoffs of the aircraft of the taxpayer and  the
  number  of  air pickups and deliveries by the aircraft of such taxpayer;
  the term "originating revenue" means revenue to the  taxpayer  from  the
  transportation of revenue passengers and revenue property first received
  by the taxpayer either as originating or connecting traffic at airports;
  and  the  term  "revenue tons handled" by the taxpayer at airports means
  the weight in tons of revenue passengers  (at  two  hundred  pounds  per
  passenger)  and  revenue  cargo  first received either as originating or
  connecting traffic or finally discharged by the taxpayer at airports;
    (b) Taxpayers principally engaged as air freight forwarders acting  as
  principal  and like indirect air carriers shall determine the portion of
  the taxpayer's business activity  carried  on  within  the  metropolitan

  commuter  transportation  district  in  accordance  with  paragraphs (a)
  through (d) of subdivision two of this section,  including  the  special
  provision  relating  to  the allocation of receipts from the activity of
  air freight forwarding acting as principal contained in subparagraph two
  of  paragraph  (b)  of  such  subdivision two. Provided, however, that a
  qualified air freight forwarder included on a combined  report  pursuant
  to  the provisions of subparagraph three of paragraph (b) of subdivision
  four of section two hundred eleven of this article shall  determine  the
  portion  of  its  business  activity  carried on within the metropolitan
  commuter transportation district in accordance  with  paragraph  (a)  of
  this subdivision.
    (c)(i)   For   taxable   years   beginning   after   nineteen  hundred
  eighty-eight, a foreign air carrier which  is  described  in  the  first
  sentence  of  paragraph (c-1) of subdivision nine of section two hundred
  eight of this article, and which is subject to  tax  under  section  two
  hundred nine of this article based on the amount prescribed in paragraph
  (a),  (c)  or  (d) of subdivision one of section two hundred ten of this
  article, shall determine the portion of its business activity carried on
  within the metropolitan commuter transportation district pursuant to the
  provisions of paragraphs (a) through (d)  of  subdivision  two  of  this
  section,  except  that  the numerators and denominators involved in such
  computation shall exclude property to the extent employed in  generating
  income  excluded  from  entire  net income pursuant to the provisions of
  paragraph (c-1) of subdivision nine of section two hundred eight of this
  article, exclude such receipts as are excluded from  entire  net  income
  for  the  taxable  year pursuant to the provisions of paragraph (c-1) of
  subdivision nine of section two  hundred  eight  of  this  article,  and
  exclude wages, salaries or other personal service compensation which are
  directly  attributable  to the generation of income excluded from entire
  net income for the taxable year pursuant to the provisions of  paragraph
  (c-1) of subdivision nine of section two hundred eight of this article.
    (ii)  For taxable years beginning after nineteen hundred ninety-three,
  a foreign air carrier which  is  described  in  the  first  sentence  of
  subparagraph  one  of paragraph (c-1) of subdivision nine of section two
  hundred eight of this article, which is subject to tax under section two
  hundred nine of this article based on the amount prescribed in paragraph
  (b) of subdivision one of section two hundred ten of  this  article  and
  which is subject to the provisions of paragraph (b) of subdivision seven
  of  section  two  hundred  eight  of  this  article, shall determine the
  portion of its  business  activity  carried  on  with  the  metropolitan
  commuter  transportation  district  pursuant to subparagraph (i) of this
  paragraph.
    2-b. A taxpayer principally engaged  in  the  conduct  of  a  railroad
  business  (including surface railroad, whether or not operated by steam,
  subway  railroad,  elevated  railroad,  palace  car  or   sleeping   car
  business), or a trucking business, shall, notwithstanding the provisions
  of  subdivision  two  of  this  section,  determine  the  portion of its
  business  activity  carried  on   within   the   metropolitan   commuter
  transportation district by multiplying the tax imposed under section two
  hundred  nine  of  this article by a fraction, the numerator of which is
  the taxpayer's mileage within the metropolitan  commuter  transportation
  district  during the period covered by its report and the denominator of
  which is the taxpayer's mileage within this state during such period.
    3. A corporation shall not be deemed to be doing  business,  employing
  capital,  owning  or  leasing  property, or maintaining an office in the
  metropolitan commuter transportation district, for the purposes of  this
  section, by reason of (a) the maintenance of cash balances with banks or
  trust companies in the metropolitan commuter transportation district, or

  (b)  the  ownership  of  shares  of  stock  or  securities  kept  in the
  metropolitan commuter transportation district, if kept in a safe deposit
  box, safe, vault or other receptacle  rented  for  the  purpose,  or  if
  pledged  as  collateral security, or if deposited with one or more banks
  or trust companies, or brokers who are members of a recognized  security
  exchange,  in  safekeeping or custody accounts, or (c) the taking of any
  action by any such bank or trust company or broker, which is  incidental
  to   the   rendering   of  safekeeping  or  custodian  service  to  such
  corporation, or (d) the maintenance of an  office  in  the  metropolitan
  commuter transportation district by one or more officers or directors of
  the  corporation  who  are  not  employees  of  the  corporation  if the
  corporation otherwise is not doing business in the metropolitan commuter
  transportation district, and does not employ capital  or  own  or  lease
  property  in  the  metropolitan commuter transportation district, or (e)
  the keeping of books or records of a  corporation  in  the  metropolitan
  commuter  transportation  district if such books or records are not kept
  by employees of such corporation and such corporation does not otherwise
  do business, employ capital, own or lease property or maintain an office
  in  the  metropolitan  commuter  transportation  district,  or  (f)  any
  combination of the foregoing activities.
    4.  Notwithstanding any contrary provisions of state or local law, the
  tax surcharge imposed under this section  shall  not  be  allowed  as  a
  deduction  in  the  computation  of  any tax imposed under this chapter.
  Furthermore, the credits otherwise allowable under  this  article  shall
  not be allowed against the tax surcharge imposed by this section.
    5.  The provisions concerning reports under section two hundred eleven
  shall be applicable to this section, except  that  for  purposes  of  an
  automatic  extension for six months for filing a report covering the tax
  surcharge imposed by this section, such  automatic  extension  shall  be
  allowed  only  if  a taxpayer files with the commissioner an application
  for extension in  such  form  as  said  commissioner  may  prescribe  by
  regulation  and pays on or before the date of such filing in addition to
  any other amounts required under this article, either ninety percent  of
  the  entire tax surcharge required to be paid under this section for the
  applicable period, or not less than  the  tax  surcharge  shown  on  the
  taxpayer's  return  for  the  preceding  taxable year, if such preceding
  taxable year was a taxable year of  twelve  months;  provided,  however,
  that  in  no  event  shall  such  amount be less than the product of the
  following three amounts: (1) the tax surcharge rate in  effect  for  the
  taxable  year pursuant to subdivision one of this section, (2) the fixed
  dollar minimum applicable to such taxpayer as determined under paragraph
  (d) of subdivision one of section two hundred ten of  this  chapter  for
  the  taxable  year,  and (3) the percentage determined under subdivision
  two of this section for the preceding taxable year, unless the  taxpayer
  was  not  subject  to the tax surcharge imposed pursuant to this section
  with respect to such year, in which case such percentage shall be deemed
  to be one hundred percent. The tax surcharge  imposed  by  this  section
  shall  be  payable to the commissioner in full at the time the report is
  required to be filed, and such tax surcharge  or  the  balance  thereof,
  imposed  on  any  taxpayer  which ceases to exercise its franchise or be
  subject to the tax surcharge imposed by this section shall be payable to
  the commissioner at the  time  the  report  is  required  to  be  filed,
  provided such tax surcharge of a domestic corporation which continues to
  possess   its   franchise   shall   be  subject  to  adjustment  as  the
  circumstances  may  require;  all  other  tax  surcharges  of  any  such
  taxpayer,  which  pursuant  to  the foregoing provisions of this section
  would otherwise be  payable  subsequent  to  the  time  such  report  is
  required to be filed, shall nevertheless be payable at such time. All of

  the  provisions  of  this article presently applicable are applicable to
  the tax surcharge imposed by this section.
    6.  The  term metropolitan commuter transportation district as used in
  this section  shall  be  defined  pursuant  to  section  twelve  hundred
  sixty-two of the public authorities law.