2. Definitions. 1. Unless otherwise expressly stated or unless the context or subject matter otherwise requires, "tax department" or "department", as used in this chapter, means the department of taxation and finance, "commissioner" means the commissioner of taxation and finance or his delegate, and "tax commission" or "commission", in all matters pertaining to the administration of the division of tax appeals, means the tax appeals tribunal and in all other matters means the commissioner of taxation and finance.
2. "Comptroller" as used in this chapter means the state comptroller.
3. "County treasurer" includes any officer performing the duties devolving upon such office under whatever name.
4. "Infant" or "minor" as used in this chapter means a person who has not attained the age of eighteen years.
5. The term "limited liability company" means a domestic limited liability company or a foreign limited liability company, as defined in section one hundred two of the limited liability company law, a limited liability investment company formed pursuant to section five hundred seven of the banking law, or a limited liability trust company formed pursuant to section one hundred two-a of the banking law.
6. "Partnership and partner," unless the context requires otherwise, shall include, but shall not be limited to, a limited liability company and a member thereof, respectively.
7. "REIT" means a real estate investment trust as defined in section eight hundred fifty-six of the internal revenue code.
8. "RIC" means a regulated investment company as defined in section eight hundred fifty-one of the internal revenue code.
9. "Captive REIT" means a REIT that is not regularly traded on an established securities market, and ( more than fifty percent of the voting stock of which is owned or controlled, directly or indirectly, by a single entity treated as an association taxable as a corporation under the Internal Revenue Code that is not exempt from federal income tax and is not a REIT. Any voting stock in a REIT that is held in a segregated asset account of a life insurance corporation (as described in section 817 of the internal revenue code) shall not be taken into account for purposes of determining whether a REIT is a captive REIT. None of the following entities shall be considered an association taxable as a corporation for purposes of this subdivision:
(a) any listed Australian property trust (meaning an Australian unit trust registered as a "managed investment scheme" under the Australian Corporations Act in which the principal class of units is listed on a recognized stock exchange in Australia and is regularly traded on an established securities market), or an entity organized as a trust, provided that a listed Australian property trust owns or controls, directly or indirectly, seventy-five percent or more of the voting power or value of the beneficial interests or shares of such trust; or
(b) any qualified foreign entity, meaning a corporation, trust, association or partnership organized outside the laws of the United States and which satisfies the following criteria:
(i) at least seventy-five percent of the entity's total asset value at the close of its taxable year is represented by real estate assets (as defined at subparagraph (B) of paragraph (5) of subsection (c) of section eight hundred fifty-six of the internal revenue code, thereby including shares or certificates of beneficial interest in any real estate investment trust), cash and cash equivalents, and United States Government securities;
(ii) the entity is not subject to tax on amounts distributed to its beneficial owners, or is exempt from entity-level taxation;
(iii) the entity distributes at least eight-five percent of its taxable income (as computed in the jurisdiction in which it is organized) to the holders of its shares or certificates of beneficial interest on an annual basis;
(iv) not more than ten percent of the voting power or value in such entity is held directly or indirectly or constructively by a single entity or individual, or the shares or beneficial interests of such entity are regularly traded on an established securities market; and
(v) the entity is organized in a country which has a tax treaty with the United States.
10. "Captive RIC" means a RIC (a) that is not regularly traded on an established securities market, and (b) more than fifty percent of the voting stock of which is owned or controlled, directly or indirectly, by a single corporation that is not exempt from federal income tax and is not a RIC. Any voting stock in a RIC that is held in a segregated asset account of a life insurance corporation (as described in section 817 of the internal revenue code) shall not be taken into account for purposes of determining whether a RIC is a captive RIC.
11. The term "combinable captive insurance company" means an entity that is treated as an association taxable as a corporation under the internal revenue code (a) more than fifty percent of the voting stock of which is owned or controlled, directly or indirectly, by a single entity that is treated as an association taxable as a corporation under the internal revenue code and not exempt from federal income tax; (b) that is licensed as a captive insurance company under the laws of this state or another jurisdiction; (c) whose business includes providing, directly and indirectly, insurance or reinsurance covering the risks of its parent and/or members of its affiliated group; and (d) fifty percent or less of whose gross receipts for the taxable year consist of premiums from arrangements that constitute insurance for federal income tax purposes. For purposes of this subdivision, "affiliated group" has the same meaning as that term is given in section 1504 of the internal revenue code, except that the term "common parent corporation" in that section is deemed to mean any person, as defined in section 7701 of the internal revenue code and references to "at least eighty percent" in section 1504 of the internal revenue code are to be read as "fifty percent or more;" section 1504 of the internal revenue code is to be read without regard to the exclusions provided for in subsection (b) of that section; "premiums" has the same meaning as that term is given in paragraph one of subdivision (c) of section fifteen hundred ten of this chapter, except that it includes consideration for annuity contracts and excludes any part of the consideration for insurance, reinsurance or annuity contracts that do not provide bona fide insurance, reinsurance or annuity benefits; and "gross receipts" includes the amounts included in gross receipts for purposes of section 501(c) (15) of the internal revenue code, except that those amounts also include all premiums as defined in this subdivision.
Last modified: February 3, 2019