Barclay Damon
Barclay Damon

Legal Alert

Update On Governor Cuomo's Proposed Corporate Franchise Tax Proposals

The Budget Bills released last month by New York Governor Andrew M. Cuomo contain a tax relief package that includes significant business tax changes, which are aimed at modernizing and simplifying the corporate franchise tax and reducing the corporate franchise tax rate. Each of these proposals will have significant impacts for businesses operating as C Corporations and paying franchise tax under Article 9-A of the New York Tax Law.

The Governor’s business tax proposal includes merging the bank franchise tax (Article 32) into a substantially modified general corporation franchise tax (Article 9-A). In addition to the unification of Articles 9-A and 32, key components of the tax reform proposal include:

  • The adoption of an economic nexus standard, which would tax corporations only on sales in New York. The existing corporate franchise tax, which is based on a combination of sales, payroll & property holdings, would be replaced with a “single sales factor” tax, under which sales would be counted once instead of twice as they are now. It would be phased in over four years and benefit manufacturers and securities firms first, eventually applying to all companies with holdings in New York and other states.
  • Replacement of the current combined reporting system with mandatory combined reporting with a more than 50% stock ownership test.
  • Selected tax base changes include:
    • Elimination of the exemption for income from subsidiary capital; this income would be treated as either taxable business income, exempt investment income or other exempt income.
    • Modification of the definition of investment income and the adoption of an exemption for investment income net of attributable interest expenses.
    • Expanded net operating loss (“NOL”) provisions with credits for pre-tax reform NOLs
  • Article 9-A’s existing single sales factor apportionment formula will apply to all filers under the reform proposal along with market (customer) based sourcing of sales, including new sourcing rules for income from qualified financial instruments.
  • Elimination of the Article 9-A minimum taxable income base and tax on subsidiary capital, and the Article 32 alternative entire net income tax base, taxable assets base and fixed dollar minimum tax.
  • An incremental increase in the amount of the fixed dollar minimum tax under the modified Article 9-A tax up to $200,000 for taxpayers with over $1 billion of New York receipts.

In addition to these extensive changes in the corporate franchise tax structure, the Governor’s business tax recommendations include:

  • A reduction in the corporate franchise tax rate for most filers from 7.1% to 6.5%.
  • A reduction in the corporate franchise tax rate to zero for Upstate New York manufacturers.
  • A tax credit equal to 20% of annual property taxes against corporate income taxes for manufacturers.

The Governor has estimated that the proposal will provide $346 million annually in tax relief to New York businesses.

We are continuing to monitor developments relating to the various economic development components of the 2013-2014 New York State budget, and will issue further legal alerts as any significant developments occur.

If you would like further information on the proposed Executive Budget and its impact on your organization, please contact David G. Burch at (315) 425-2788 or dburch@hblaw.com; Kevin R. McAuliffe at (315) 425-2875 or kmcauliffe@hblaw.com; Angela M. Orlandella at (315) 425-2874 or aorlandella@hblaw.com.