New York Codes, Rules and Regulations
Chapter II - Regulations of the Commissioner
Subchapter Q - Relocation Payments
Part 210 - Relocation Payments For Acquisition Of Real Property By The Commissioner Of Education
Section 210.6 - "in lieu of" moving expenses for a business or commercial occupant

Current through Register Vol. 44, No. 38, September 21, 2022

(a) It shall be the option of the business or farm operation (including a displaced business or farm operation which is discontinued) upon written notification from the department to elect to receive a fixed relocation payment of up to $5,000 in lieu of moving expenses. This fixed relocation payment is calculated in an amount equal to the average annual net earnings of the business or farm operation or $5,000, whichever is the lesser amount.

(b) In the case of a business, eligibility for this payment is contingent upon the State's determination that:

(1) the business cannot be relocated without a substantial loss of its patronage and

(2) is not part of a commercial enterprise having at least one other establishment which is not being acquired by the State or the United States and which is engaged in the same or a similar business.

The term "patronage" as used herein means the average dollar volume of business transacted during the two taxable years immediately preceding the year in which the business is displaced, or the projection for the next two years of the average dollar volume of business at the new location of the displaced business.

(c) In the case of a farm operation, no such fixed relocation payment shall be made unless the State determines that the acquisition causes the discontinuance of the farm operation or its displacement and relocation from its existing location.

(d) The term "average annual net earnings" as used in subdivision (a) of this section means one-half of any earnings of the business before Federal, State and local income taxes, during the two taxable years immediately preceding the taxable year in which the business is acquired. "Average annual net earnings" include any compensation paid by the business to the owner, his spouse, or his dependents during the two year period. Such earnings and compensation may be established by Federal or State income tax returns filed by the business and its owner, his spouse and his dependents during the two year period. State or Federal tax returns for the tax years in question are the primary sources for verification of earnings and compensation. An affidavit from the owner stating his net earnings can also be accepted provided it grants the State the right to review the records and accounts of the business or farm operation.

(e) In the case of a corporate owner of a business or farm operation, earnings shall include any compensation paid to the spouse or dependent of the owner of a majority interest in the corporation. For the purpose of determining majority ownership, stock held by a husband, his wife and their dependent children shall be treated as one unit. There is no requirement that the business be in the same location for the entirety of the two preceding taxable years. If the business or farm operator affected can show that it was in business for 12 consecutive months during the two taxable years prior to the taxable year in which it is required to relocate, had income during such period and is otherwise eligible, the owner of the business or farm operation is eligible to receive the payment specified. The 12 month period used by the business or farm operation in filing income tax returns is acceptable as a taxable year. The business or farm operation must provide information to support its net earnings if the owner elects to accept the payment provided for in lieu of moving costs. Where the business or farm was in operation for 12 consecutive months or more but was not in operation during the entire two preceding taxable years, the payment is to be computed by dividing the net earnings for the total period by the number of months the business or farm was operated and multiply by 12.

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