1. (a) In case it shall appear to the commissioner that any agreement, understanding or arrangement exists between the taxpayer and any other corporation or any person or firm, whereby the activity, business, income or capital of the taxpayer within New York State is improperly or inaccurately reflected, the commissioner is authorized in the commissioner's discretion to adjust items of income, deductions and capital, and to eliminate assets in computing any allocation percentage, provided any income directly traceable thereto is also excluded from entire net income or minimum taxable income, so as to equitably determine the tax.

2. (b) The commissioner may include in the entire net income or minimum taxable income of any taxpayer the fair profits which, but for an agreement, arrangement or understanding as described in subdivision (a) of this section, the taxpayer might have derived from any transaction:

   1. (1) where the taxpayer conducts its activity or business under any agreement, arrangement or understanding in such manner as either directly or indirectly to benefit its members or stockholders, or any of them, or any person or persons directly or indirectly interested in such activity or business, by entering into any transaction at more or less than a fair price which, but for such agreement, arrangement or understanding, might have been paid or received therefor; or
   2. (2) where the taxpayer, a substantial portion of whose capital stock is owned either directly or indirectly by another corporation, enters into any transaction with such other corporation on such terms as to create an improper loss or net income.

Tax Law, § 211(5)