By Charles Capouet and Madison Barnett

The New York City Tax Appeals Tribunal held that a bank filing a combined New York City bank tax return properly excluded from its combined group a Connecticut investment subsidiary that primarily held mortgage loans secured by non-New York property. Where there are substantial intercorporate transactions among banking corporations or bank holding companies engaged in a unitary business, New York City law presumes that a combined return is required. The Tribunal held that although there were substantial intercorporate transactions, the combined report presumption was rebutted because the intercompany transactions were conducted at arm’s length, and the transactions and entities had non-tax business purposes and economic substance. The Tribunal determined that “[a]lthough it is clear that the tax purposes [of forming the investment subsidiary] were substantial, separating the non-New York loans from [the New York bank] was a sufficient non-tax business purpose to support the transactions.” As a result, New York City could not require the bank to include its investment subsidiary in its combined New York City bank tax return. In re Astoria Fin. Corp. & Affiliates, No. TAT (E) 10-35 (BT) (N.Y.C. Tax Appeals Tribunal May 19, 2016).