Sec. 19-7.3. Definition of maintained

Tax Law, § 1454

(a) For purposes of this Subpart, a deposit is maintained at the branch of the taxpayer at which the deposit is properly booked.

(1) A deposit, the value of which at all times during the taxable year was less than $100,000, that is booked by a taxpayer at a branch without New York State is presumed to be properly booked, provided that such presumption may be rebutted if the Tax Commission demonstrates that the greater portion of contact relating to the deposit did not occur at such branch. Where such presumption has been rebutted by the Tax Commission, the deposit shall be presumed to be maintained within New York State if the taxpayer had a branch within New York State at the time the deposit was booked. However, the taxpayer may rebut such presumption by demonstrating that the greater portion of contact relating to the deposit did occur at a branch outside New York State.

(2) A deposit, the value of which at any time during the taxable year was $100,000 or more, is considered to be properly booked at the branch with which it has a greater portion of contact.

(b) In determining whether a deposit has a greater portion of contact with a particular branch, consideration is given to such activities as:

(1) whether the deposit account was opened at or transferred to that branch by or at the direction of the depositor or by a broker of deposits, regardless of where subsequent deposits or withdrawals may be made;

(2) whether employees regularly connected with that branch are primarily responsible for servicing the depositor's general banking and other financial needs;

(3) whether the deposit was solicited by an employee regularly connected with that branch, regardless of where such deposit was actually solicited;

(4) whether the terms governing the deposit were negotiated by employees regularly connected with that branch, regardless of where the negotiations were actually conducted; and

(5) whether essential records relating to the deposit are kept at that branch and whether the deposit is serviced at that branch.

(c) In some cases, one or more of the activities considered in subdivision (b) of this section may not be present. The significance to be accorded to each activity depends upon the facts in each case.

(d) A deposit that is maintained at a bona fide office of the taxpayer which is not a branch is excluded from both the numerator and denominator of the deposits factor.