Sec. 3-13.2. Determination of applicable methodology

(a) A taxpayer must use the aggregate method in determining its tax with respect to its interest in a partnership if it has access to the information necessary to compute its tax using such method. A taxpayer is presumed to have access to the information if any one of the following is met:

(1) it is conducting a unitary business with the partnership within the meaning of section 6-2.3(e) of this Title;

(2) it is a general partner of the partnership or is a managing member of a limited liability company which is treated as a partnership for Federal income tax purposes;

(3) it has a five percent or more interest in the partnership determined in the manner provided in section 1-3.2(a)(6)(iii)(a) of this Title;

(4) it has reported information from the partnership in a prior taxable year using the aggregate method;

(5) its partnership interest constitutes more than 50 percent of its total assets;

(6) its basis in its interest in the partnership pursuant to section 705 of the Internal Revenue Code and 26 CFR section 1.705-1 on the last day of the partnership year that ends within or with the taxpayer's taxable year is more than $5,000,000; or

(7) any member of its affiliated group has the information necessary to perform such computation.

(b)

(1) If a taxpayer does not meet any of the presumptions set forth in subdivision (a) of this section, does not have access (and will not have access within the time period allowed for filing a return with regard to all available extensions of time to file) to the information necessary to compute its tax using the aggregate method and certifies these facts to the commissioner, then the taxpayer shall use the entity method.

(2) If a taxpayer meets one or more of the presumptions set forth in subdivision (a) of this section but the taxpayer establishes to the satisfaction of the commissioner that neither it nor any member of its affiliated group has access to the information necessary to compute the taxpayer's tax using the aggregate method, then the taxpayer shall use the entity method. The taxpayer shall certify that neither it nor any member of its affiliated group has (or will have within the time period allowed for filing a return with regard to all available extensions of time to file) access to the information necessary to compute its tax using the aggregate method.

(c) If a taxpayer is a partner in a partnership (upper tier partnership) and such partnership is a partner in another partnership (lower tier partnership) and the taxpayer has the necessary information to use the aggregate method with respect to the items of receipts, income, gain, loss, deduction, assets and liabilities, and activities of the upper tier partnership that are not attributable to the lower tier partnership, but does not have the necessary information to use the aggregate method with respect to such items that are attributable to the lower tier partnership, then such taxpayer shall use the aggregate method with respect to the items of receipts, income, gain, loss, deduction, assets and liabilities, and activities of the upper tier partnership that are not attributable to the lower tier partnership and shall use the entity method with respect to such items that are attributable to the lower tier partnership. If there are additional tiers of partnerships, this methodology shall be employed at each tier. The taxpayer shall be presumed to have access to the necessary information with respect to a lower tier partnership and shall be subject to the provisions of paragraph (b)(2) of this section with respect to a lower tier partnership if one or more of the presumptions set forth in subdivision (a) of this section is met at each tier. If the taxpayer does not meet any of the presumptions set forth in subdivision (a) of this section and does not have access to the necessary information with respect to a lower tier partnership the provisions of paragraph (b)(1) of this section shall apply.

(d)

(1) For purposes of this section, the term affiliated group shall have the same meaning as such term is defined in section 1504 of the Internal Revenue Code except that the term common parent corporation shall be deemed to mean any person as defined in section 7701(a)(1) of the Internal Revenue Code. Such section 1504 shall be read without regard to the exclusions provided for in section 1504(b).

(2) For purposes of this section, a partnership interest constitutes more than 50 percent of a taxpayer's total assets if its interest in the partnership is more than 50 percent of the taxpayer's total assets. In determining its interest in the partnership and its total assets, the taxpayer may elect to use ending amounts, or the average of the beginning and ending amounts as reported on the taxpayer's balance sheet included in its Federal income tax return or average amounts determined on a more frequent basis as determined in a manner consistent with the taxpayer's balance sheet included in its Federal income tax return. Whichever method a taxpayer elects to use, it must use that method for all of its assets. If the taxpayer is not required to include a balance sheet in its Federal income tax return, it must use a method which it would have used if it had been required to include a balance sheet in its Federal income tax return.