S T A T E O F N E W Y O R K
________________________________________________________________________
2987
2009-2010 Regular Sessions
I N S E N A T E
March 9, 2009
___________
Introduced by Sens. RANZENHOFER, ALESI, DeFRANCISCO, FUSCHILLO, O. JOHN-
SON, LARKIN, LAVALLE, LIBOUS, MAZIARZ, PADAVAN, ROBACH, SALAND,
SKELOS, VOLKER, YOUNG -- read twice and ordered printed, and when
printed to be committed to the Committee on Investigations and Govern-
ment Operations
AN ACT to amend the tax law, in relation to a small business electric
energy tax credit
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 210 of the tax law is amended by adding a new
subdivision 41 to read as follows:
41. SMALL BUSINESS ELECTRIC ENERGY TAX CREDIT. (A) A TAXPAYER THAT IS
ELIGIBLE UNDER THE LIMITATIONS SPECIFIED IN PARAGRAPH (B) OF THIS SUBDI-
VISION SHALL BE ALLOWED A CREDIT AGAINST THE TAX IMPOSED BY THIS ARTI-
CLE. THE AMOUNT OF THE CREDIT SHALL BE EQUAL TO THE PRODUCT OF TWO
CENTS PER KILOWATT HOUR FOR ALL BUSINESS RELATED ELECTRICITY USAGE AT
THE TAXPAYER'S PRIMARY BUSINESS LOCATION.
(B) AN ELIGIBLE TAXPAYER SHALL (I) HAVE NO MORE THAN NINETEEN FULL
TIME EQUIVALENT EMPLOYEES IN NEW YORK STATE, INCLUDING ANY RELATED
MEMBERS OR AFFILIATES, (II) NOT BE A SOLE-PROPRIETORSHIP IF SUCH
SOLE-PROPRIETOR'S PRIMARY BUSINESS LOCATION IS SITED IN OR PART OF SUCH
SOLE-PROPRIETOR'S PLACE OF RESIDENCE, (III) NOT BE CERTIFIED PURSUANT TO
ARTICLE EIGHTEEN-B OF THE GENERAL MUNICIPAL LAW, AND (IV) NOT BE RECEIV-
ING ANY ALLOCATION OR AWARD PURSUANT TO ANY PROGRAM AUTHORIZED UNDER
ARTICLE SIX OF THE ECONOMIC DEVELOPMENT LAW.
(C) (I) THE TERM "BUSINESS RELATED ELECTRICITY USAGE" SHALL REFER TO
ELECTRICAL POWER USAGE USED TO FURTHER THE ECONOMIC ACTIVITY OF THE
TAXPAYER AT THE PRIMARY BUSINESS LOCATION THAT IS CLEARLY DELIMITED FROM
ANY SHARED ELECTRICAL POWER USAGE COST. (II) THE TERM "PRIMARY BUSINESS
LOCATION" SHALL MEAN THE PHYSICAL SITE OF THE TAXPAYER WITHIN THE STATE
OF NEW YORK WHERE THE MAJORITY OF THE TAXPAYER'S ECONOMIC ACTIVITY IS
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01141-04-9
S. 2987 2
GENERATED OR COORDINATED THROUGH. (III) THE TERM "RELATED MEMBERS"
SHALL HAVE THE SAME MEANING AS SET FORTH IN CLAUSES (A) AND (B) OF
SUBPARAGRAPH ONE OF PARAGRAPH (O) OF SUBDIVISION NINE OF SECTION TWO
HUNDRED EIGHT OF THIS ARTICLE, AS AMENDED BY SECTION ONE OF PART M OF
CHAPTER SIX HUNDRED EIGHTY-SIX OF THE LAWS OF TWO THOUSAND THREE, AND
THE TERM "AFFILIATES" SHALL MEAN THOSE CORPORATIONS THAT ARE MEMBERS OF
THE SAME AFFILIATED GROUP (AS DEFINED IN SECTION FIFTEEN HUNDRED FOUR OF
THE INTERNAL REVENUE CODE) AS THE TAXPAYER.
(D) THE ELIGIBLE USAGE LEVEL SHALL BE THE TOTAL KILOWATT HOUR USAGE OF
THE TAXPAYER FOR BUSINESS RELATED ELECTRICITY USAGE DURING THE TAXPAY-
ER'S TAXABLE YEAR AS VERIFIED THROUGH BILLS OR OTHER FORM OF USAGE CHART
PROVIDED TO THE TAXPAYER BY THE TAXPAYER'S ELECTRICITY POWER SERVICE
PROVIDER.
(E) THE CREDIT ALLOWED UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR
SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS THAN THE HIGHER OF
THE AMOUNTS PRESCRIBED IN PARAGRAPHS (C) AND (D) OF SUBDIVISION ONE OF
THIS SECTION. HOWEVER, IF THE AMOUNT OF CREDIT ALLOWED UNDER THIS SUBDI-
VISION FOR ANY TAXABLE YEAR REDUCES THE TAX TO SUCH AMOUNT, ANY AMOUNT
OF CREDIT NOT DEDUCTIBLE IN SUCH TAXABLE YEAR SHALL BE TREATED AS AN
OVERPAYMENT OF TAX TO BE CREDITED OR REFUNDED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION TEN HUNDRED EIGHTY-SIX OF THIS CHAPTER. PROVIDED,
HOWEVER, THE PROVISIONS OF SUBSECTION (C) OF SECTION TEN HUNDRED EIGHT-
Y-EIGHT OF THIS CHAPTER NOTWITHSTANDING, NO INTEREST SHALL BE PAID THER-
EON.
S 2. Section 606 of the tax law is amended by adding a new subsection
(qq) to read as follows:
(QQ) SMALL BUSINESS ELECTRIC ENERGY TAX CREDIT. (1) A TAXPAYER THAT IS
ELIGIBLE UNDER THE LIMITATIONS SPECIFIED IN PARAGRAPH TWO OF THIS
SUBSECTION SHALL BE ALLOWED A CREDIT AGAINST THE TAX IMPOSED BY THIS
ARTICLE. THE AMOUNT OF THE CREDIT SHALL BE EQUAL TO THE PRODUCT (OR PRO
RATA SHARE OF THE PRODUCT IN THE CASE OF A PARTNERSHIP) OF TWO CENTS PER
KILOWATT HOUR FOR ALL BUSINESS RELATED ELECTRICITY USAGE AT THE TAXPAY-
ER'S PRIMARY BUSINESS LOCATION.
(2) AN ELIGIBLE TAXPAYER SHALL (I) HAVE NO MORE THAN NINETEEN FULL
TIME EQUIVALENT EMPLOYEES IN NEW YORK STATE, INCLUDING ANY RELATED
MEMBERS OR AFFILIATES, (II) SHALL NOT BE A SOLE-PROPRIETORSHIP IF SUCH
SOLE-PROPRIETOR'S PRIMARY BUSINESS LOCATION IS SITED IN OR PART OF SUCH
SOLE-PROPRIETOR'S PLACE OF RESIDENCE, (III) NOT BE CERTIFIED PURSUANT TO
ARTICLE EIGHTEEN-B OF THE GENERAL MUNICIPAL LAW, AND (IV) NOT BE RECEIV-
ING ANY ALLOCATION OR AWARD PURSUANT TO ANY PROGRAM AUTHORIZED UNDER
ARTICLE SIX OF THE ECONOMIC DEVELOPMENT LAW.
(3) (I) THE TERM "BUSINESS RELATED ELECTRICITY USAGE" SHALL REFER TO
ELECTRICAL POWER USAGE USED TO FURTHER THE ECONOMIC ACTIVITY OF THE
TAXPAYER AT THE PRIMARY BUSINESS LOCATION THAT IS CLEARLY DELIMITED FROM
ANY SHARED ELECTRICAL POWER USAGE COST. (II) THE TERM "PRIMARY BUSINESS
LOCATION" SHALL MEAN THE PHYSICAL SITE OF THE TAXPAYER WITHIN THE STATE
OF NEW YORK WHERE THE MAJORITY OF THE TAXPAYER'S ECONOMIC ACTIVITY IS
GENERATED OR COORDINATED THROUGH. (III) THE TERM "RELATED MEMBERS" SHALL
HAVE THE SAME MEANING AS SET FORTH IN CLAUSES (A) AND (B) OF SUBPARA-
GRAPH ONE OF PARAGRAPH (O) OF SUBDIVISION NINE OF SECTION TWO HUNDRED
EIGHT OF THIS CHAPTER, AS AMENDED BY SECTION ONE OF PART M OF CHAPTER
SIX HUNDRED EIGHTY-SIX OF THE LAWS OF TWO THOUSAND THREE, AND THE TERM
"AFFILIATES" SHALL MEAN THOSE CORPORATIONS THAT ARE MEMBERS OF THE SAME
AFFILIATED GROUP (AS DEFINED IN SECTION FIFTEEN HUNDRED FOUR OF THE
INTERNAL REVENUE CODE) AS THE TAXPAYER.
S. 2987 3
(4) THE ELIGIBLE USAGE LEVEL SHALL BE THE TOTAL KILOWATT HOUR USAGE OF
THE TAXPAYER FOR BUSINESS RELATED ELECTRICITY USAGE DURING THE TAXPAY-
ER'S TAXABLE YEAR AS VERIFIED THROUGH BILLS OR OTHER FORM OF USAGE CHART
PROVIDED TO THE TAXPAYER BY THE TAXPAYER'S ELECTRICITY POWER SERVICE
PROVIDER.
(5) IF THE AMOUNT OF CREDIT ALLOWED UNDER THIS SUBSECTION FOR ANY
TAXABLE YEAR SHALL EXCEED THE TAXPAYER'S TAX FOR SUCH YEAR, THE EXCESS
SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR REFUNDED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION SIX HUNDRED EIGHTY-SIX OF THIS
ARTICLE, PROVIDED, HOWEVER, THAT NO INTEREST SHALL BE PAID THEREON.
S 3. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
of the tax law, as amended by section 2 of part ZZ-1 of chapter 57 of
the laws of 2008, is amended to read as follows:
(B) shall be treated as the owner of a new business with respect to
such share if the corporation qualifies as a new business pursuant to
paragraph (j) of subdivision twelve of section two hundred ten of this
chapter.
The corporation's credit base under
section two hundred ten or section
With respect to the following fourteen hundred fifty-six of this
credit under this section: chapter is:
(I) Investment tax credit under Investment credit base or qualified
subsection (a) rehabilitation expenditures under
subdivision twelve of section two
hundred ten
(II) Empire zone investment Cost or other basis under
tax credit under subsection (j) subdivision twelve-B of section
two hundred ten
(III) Empire zone wage tax credit Eligible wages under subdivision
under subsection (k) nineteen of section two hundred
ten or subsection (e) of section
fourteen hundred fifty-six
(IV) Empire zone capital tax Qualified investments and
credit under subsection (l) contributions under subdivision
twenty of section two hundred ten
or subsection (d) of section
fourteen hundred fifty-six
(V) Agricultural property tax Allowable school district property
credit under subsection (n) taxes under subdivision twenty-two
of section two hundred ten
(VI) Credit for employment of Qualified first-year wages or
persons with disabilities qualified second-year wages under
under subsection (o) subdivision twenty-three of
section two hundred ten or
subsection (f) of section
fourteen hundred fifty-six
(VII) Employment incentive credit Applicable investment credit base
under subsection (a-1) under subdivision twelve-D of
S. 2987 4
section two hundred ten
(VIII) Empire zone employment Applicable investment credit
incentive credit under subsection under subdivision twelve-C of
(j-1) section two hundred ten
(IX) Alternative fuels credit Cost under subdivision twenty-four
under subsection (p) of section two hundred ten
(X) Qualified emerging technology Applicable credit base under
company employment credit under subdivision twelve-E of section
subsection (q) two hundred ten
(XI) Qualified emerging technology Qualified investments under
company capital tax credit under subdivision twelve-F of section
subsection (r) two hundred ten
(XII) Credit for purchase of an Cost of an automated external
automated external defibrillator defibrillator under subdivision
under subsection (s) twenty-five of section two hundred
ten or subsection (j) of section
fourteen hundred fifty-six
(XIII) Low-income housing credit Credit amount under subdivision
under subsection (x) thirty of section two hundred ten
or subsection (l) of section
fourteen hundred fifty-six
(XIV) Credit for transportation Amount of credit under subdivision
improvement contributions under thirty-two of section two hundred
subsection (z) ten or subsection (n) of section
fourteen hundred fifty-six
(XV) QEZE credit for real property Amount of credit under subdivision
taxes under subsection (bb) twenty-seven of section two hundred
ten or subsection (o) of section
fourteen hundred fifty-six
(XVI) QEZE tax reduction credit Amount of benefit period factor,
under subsection (cc) employment increase factor and zone
allocation factor (without regard
to pro ration) under subdivision
twenty-eight of section two hundred
ten or subsection (p) of section
fourteen hundred fifty-six and
amount of tax factor as determined
under subdivision (f) of section
sixteen
(XVII) Green building credit under Amount of green building credit
subsection (y) under subdivision thirty-one of
section two hundred ten or
subsection (m) of section fourteen
hundred fifty-six
S. 2987 5
(XVIII) Credit for long-term care Qualified costs under subdivision
insurance premiums under subsection twenty-five-a of section two
(aa) hundred ten or subsection (k) of
section fourteen hundred fifty-six
(XIX) Brownfield redevelopment Amount of credit under subdivision
credit under subsection (dd) thirty-three of section two hundred
ten or subsection (q) of section
fourteen hundred fifty-six
(XX) Remediated brownfield credit Amount of credit under subdivision
for real property taxes for thirty-four of section two hundred
qualified sites under subsection ten or subsection (r) of section
(ee) fourteen hundred fifty-six
(XXI) Environmental remediation Amount of credit under subdivision
insurance credit under subsection thirty-five of section two hundred
(ff) ten or subsection (s) of section
fourteen hundred fifty-six
(XXII) Empire state film production Amount of credit for qualified
credit under subsection (gg) production costs in production of a
qualified film under subdivision
thirty-six of section two hundred
ten
(XXIII) Qualified emerging Qualifying expenditures and
technology company facilities, development activities under
operations and training credit subdivision twelve-G of section two
under subsection (nn) hundred ten
(XXIV) Security training tax credit Amount of credit under subdivision
under subsection (ii) thirty-seven of section two hundred
ten or under subsection (t) of
section fourteen hundred fifty-six
(XXV) Credit for qualified fuel Amount of credit under subdivision
cell electric generating equipment thirty-seven of section two hundred
expenditures under subsection (g-2) ten or subsection (t) of section
fourteen hundred fifty-six
(XXVI) Empire state commercial Amount of credit for qualified
production credit under subsection production costs in production of
(jj) a qualified commercial under
subdivision thirty-eight of
section two hundred ten
(XXVII) Biofuel production tax Amount of credit under subdivision
credit under subsection (jj) thirty-eight of section two hundred
ten
(XXVIII) Clean heating fuel credit Amount of credit under subdivision
under subsection (mm) thirty-nine of section two hundred
ten
S. 2987 6
(XXIX) Credit for rehabilitation Amount of credit under subdivision
of historic properties under forty of [subsection] SECTION
subsection (oo) two hundred ten
(XXX) Credit for companies who Amount of credit under subdivision
provide transportation to forty of section two hundred ten
individuals with disabilities under
subsection (oo)
(XXXI) SMALL BUSINESS ELECTRIC QUALIFYING ELECTRICITY USAGE
ENERGY TAX CREDIT UNDER SUBDIVISION FORTY-ONE
UNDER SUBSECTION (QQ) OF SECTION TWO HUNDRED TEN
S 4. This act shall take effect immediately and shall apply to taxable
years beginning on or after January 1, 2010; provided, however that the
empire state film production credit under subsection (gg), the empire
state commercial production credit under subsection (jj) and the credit
for companies who provide transportation to individuals with disabili-
ties under subsection (oo) of section 606 of the tax law contained in
section three of this act shall expire on the same date as provided in
section 9 of part P of chapter 60 of the laws of 2004, as amended,
section 10 of part V of chapter 62 of the laws of 2006, as amended and
section 5 of chapter 522 of the laws of 2006, as amended, respectively.