* 25. Disclosure of certain transactions and related information. (a) (1) Every taxpayer, or person as defined in section seven thousand seven hundred one of the internal revenue code, required to file a disclosure statement with the internal revenue service pursuant to section six thousand eleven of the internal revenue code, or the regulations promulgated thereunder, related to a reportable transaction or a listed transaction, as those terms are defined in such section or regulations, must attach a duplicate of such disclosure statement to the return or report required to be filed by such taxpayer or person for the taxable year under article nine, nine-A, twenty-two or thirty-three of this chapter, and provide such other information related to such disclosure as prescribed by the commissioner. Such disclosure shall be made notwithstanding that one member of an affiliated group, as defined by section fifteen hundred four of the internal revenue code, may file such disclosure statement with the internal revenue service on behalf of its affiliates including such taxpayer or person.
(2) Every taxpayer or such person who participates in a New York reportable transaction for a taxable year must disclose such participation with its return or report required to be filed under article nine, nine-A, twenty-two or thirty-three of this chapter for the taxable year in a form prescribed by the commissioner, and provide such other information related to such transaction as prescribed by the commissioner. A New York reportable transaction is a transaction that has the potential to be a tax avoidance transaction as determined by the commissioner.
(3) The commissioner may in his discretion prescribe, by regulation, New York reportable transactions.
(4) Provided the commissioner has prescribed regulations pursuant to paragraph three of this subdivision the commissioner is authorized to designate specific transactions that are the same as, or substantially similar to, transactions that the commissioner has determined to be tax avoidance transactions. The provisions of article two of the state administrative procedure act shall not apply to the designation of a specific transaction as a tax avoidance transaction; provided, however, that the commissioner shall designate any such transaction by notice or other form of published guidance.
(b)(1) Every person required to make and file a statement or return pursuant to section six thousand one hundred eleven of the internal revenue code must file a duplicate of such statement or return, including all documentation submitted to the internal revenue service in connection with such statement or return, with the commissioner if any of the following conditions apply:
(A) the person is organized in this state,
(B) the person is doing business in this state,
(C) the person is deriving income in this state, or
(D) (i) the list required to be maintained by such person pursuant to section six thousand one hundred twelve of the internal revenue code identifies or is required to identify a taxpayer subject to tax under article nine, nine-A, twenty-two or thirty-three of this chapter, and
(ii) such person is a material advisor, as defined in section six thousand one hundred eleven of the internal revenue code, who provides any material aid, assistance, or advice with respect to organizing, managing, promoting, selling, implementing, or carrying out any reportable transaction.
(2) Such duplicate statement or return must be filed within sixty days of the later of:
(A) the date required for filing the statement or return with the internal revenue service,
(B) the date that any of the conditions described in paragraph (1) of this subdivision first applies, or
(C) ninety days after the enactment of this section.
(c) Every person who is required to maintain a list of persons pursuant to section six thousand one hundred twelve of the internal revenue code, or the regulations promulgated thereunder, must maintain a duplicate of such list if any of the conditions described in paragraph one of subdivision (b) of this section applies to such person and must furnish a copy thereof to the commissioner within twenty days after written request is made for such list by the commissioner.
(d) Every person required by this section to disclose any transaction, file any duplicate return, or maintain any list shall retain all relevant correspondence, memoranda, notes, valuation studies, meeting minutes, spreadsheets, models, opinions, records required to be retained pursuant to section six thousand eleven of the internal revenue code, or the regulations promulgated thereunder, and all other records or documents related to the disclosure, filing and list maintenance requirements of this section for six years and must make such information available for inspection by the commissioner in connection with any examination.
(e) The filing, disclosure and retention requirements of this section shall be in addition to any other filing, disclosure or retention requirements, general or specific, provided by law. The commissioner may require electronic filing or disclosure of any or all submissions required under this section, shall have the authority to prescribe whether a signature, including an electronic signature, is required on any or all filings or disclosures under this section. If an electronic signature is so required, it shall be in a form consistent with the provisions of the electronic signatures and records act of the state technology law.
(f)(1) The penalties imposed for a violation of subdivision (a) of this section are contained in subsection (x) of section six hundred eighty-five and subsection (p) of section one thousand eighty-five of this chapter.
(2) The penalties imposed for a violation of subdivision (b) of this section are contained in subsection (y) of section six hundred eighty-five and subsection (q) of section one thousand eighty-five of this chapter.
(3) The penalties imposed for a violation of subdivision (c) of this section are contained in subsection (z) of section six hundred eighty-five and subsection (r) of section one thousand eighty-five of this chapter.
* NB Repealed July 1, 2019
Last modified: February 3, 2019