Current through Register Vol. 46, No. 12, March 20, 2024
(a) General. A New York reportable
transaction is a transaction that has the potential to be a tax avoidance
transaction under article 9, 9-A, 22, 32, or 33 of the Tax Law. The term
transaction includes all of the factual elements relevant to the expected tax
treatment of any investment, entity, plan, or arrangement, and includes any
series of steps carried out as part of a plan. There are three categories of
New York reportable transactions: New York listed transactions, New York
confidential transactions, and New York transactions with contractual
protection.
(b) New York listed
transactions. A New York listed transaction is a transaction that is the same
as or substantially similar to one of the types of transactions that the
commissioner has determined to be a tax avoidance transaction and identified by
notice or other form of published guidance as a New York listed transaction.
For purposes of identifying a New York listed transaction, the determination
that a type of transaction is a tax avoidance transaction shall be based upon a
finding by the commissioner that:
(1) the
transaction is not done for a valid business purpose, that is, one or more
business purposes, other than obtaining tax benefits, that alone or in
combination constitute the primary motivation for the transaction;
(2) the transaction does not have economic
substance apart from its tax benefits; or
(3) the tax treatment of the transaction is
based upon an elevation of form over substance.
(c) New York confidential transactions.
(1) General. A New York confidential
transaction is a transaction that is offered to a taxpayer under conditions of
confidentiality and for which the taxpayer has paid an advisor a fee. For
purposes of this subdivision, related persons who bear a relationship to each
other as described in section 267(b) or section 707(b) of the Internal Revenue
Code will be treated as the same person.
(2) Conditions of confidentiality. A
transaction is considered to be offered to a taxpayer under conditions of
confidentiality if the advisor who is paid the fee places a limitation on
disclosure by the taxpayer of the tax treatment or tax structure of the
transaction and the limitation on disclosure protects the confidentiality of
that advisor's tax strategies. A transaction is treated as confidential even if
the conditions of confidentiality are not legally binding on the taxpayer. A
claim that a transaction is proprietary or exclusive is not treated as a
limitation on disclosure if the advisor confirms to the taxpayer that there is
no limitation on disclosure of the tax treatment or tax structure of the
transaction.
(3) Determination of
advisor fee. For purposes of this subdivision, a fee includes all fees for a
tax strategy or for services for advice (whether or not tax advice) or for the
implementation of a transaction. These fees include consideration in whatever
form paid, whether in cash or in kind, for services to analyze the transaction
(whether or not related to the tax consequences of the transaction), for
services to implement the transaction, for services to document the
transaction, and for services to prepare tax returns to the extent that the
fees exceed the fees customary for return preparation. For purposes of this
subdivision, a taxpayer also is treated as paying fees to an advisor if the
taxpayer knows or should know that the amount it pays will be paid indirectly
to the advisor, such as through a referral fee or fee-sharing arrangement. A
fee does not include amounts paid to a person, including an advisor, in that
person's capacity as a party to the transaction. For example, a fee does not
include reasonable charges for the use of capital or the sale or use of
property.
(d) New York
transactions with contractual protection.
(1)
General. A New York transaction with contractual protection is a transaction
for which the taxpayer or a related party (as described in section 267[b] or
section 707[b] of the Internal Revenue Code) has the right to a full or partial
refund of fees (as described in paragraph [2] of this subdivision) if all or
part of the intended tax consequences from the transaction are not sustained. A
transaction with contractual protection also is a transaction for which fees
(as described in paragraph [2] of this subdivision) are contingent on the
taxpayer's realization of tax benefits from the transaction. All the facts and
circumstances relating to the transaction will be considered when determining
whether a fee is refundable or contingent, including the right to
reimbursements of amounts that the parties to the transaction have not
designated as fees or any agreement to provide services without reasonable
compensation.
(2) Fees. Paragraph
(1) of this subdivision only applies with respect to fees paid by or on behalf
of the taxpayer or a related party to any person who makes or provides a
statement, oral or written, to the taxpayer or related party (or for whose
benefit a statement is made or provided to the taxpayer or related party) as to
the potential tax consequences that may result from the transaction.
(3) Exceptions.
(i) Termination of transaction. A transaction
is not considered to have contractual protection solely because a party to the
transaction has the right to terminate the transaction upon the happening of an
event affecting the taxation of one or more parties to the
transaction.
(ii) Previously
reported transaction. If a person makes or provides a statement to a taxpayer
as to the potential tax consequences that may result from a transaction only
after the taxpayer has entered into the transaction and reported the
consequences of the transaction on a filed tax return, and the person has not
previously received fees from the taxpayer relating to the transaction, then
any refundable or contingent fees are not taken into account in determining
whether the transaction has contractual protection.
(e) Exceptions.
(1) General. A transaction will not be
considered a New York reportable transaction, or will be excluded from any
individual category of New York reportable transaction under subdivisions (c)
and (d) of this section, if the commissioner makes a determination by published
guidance that the transaction is not subject to the reporting requirements of
this Part. The commissioner may also, upon request, make a determination under
section
2500.6
of this Part that a specific transaction or type of transaction is not subject
to the reporting requirements of this Part.
(2) Special rule for regulated investment
companies. For purposes of this Part, a corporation which is a regulated
investment company as defined in section 851 of the Internal Revenue Code and
subject to Federal income tax under section 852 of the Internal Revenue Code or
an investment vehicle that is owned 95 percent or more by one or more regulated
investment companies at all times during the course of the transaction is not
required to disclose a transaction that is described in subdivisions (c) and
(d) of this section unless the transaction is also a New York listed
transaction.