S T A T E   O F   N E W   Y O R K
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                                  7228

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                             April 19, 2011
                               ___________

Introduced  by  M.  of  A. MORELLE, BING, CYMBROWITZ, SCARBOROUGH, HOYT,
  LUPARDO, MAGNARELLI, KELLNER, LAVINE, GALEF, GABRYSZAK, JAFFEE,  MILL-
  MAN,  SCHROEDER,  TITONE,  WEISENBERG,  ZEBROWSKI, M. MILLER, BRONSON,
  CASTRO, SIMOTAS, WEPRIN, DenDEKKER -- Multi-Sponsored by -- M.  of  A.
  ABBATE, GIBSON, GLICK, McENENY, MENG, O'DONNELL, PEOPLES-STOKES, PHEF-
  FER -- read once and referred to the Committee on Ways and Means

AN  ACT  to  amend  the  tax law, in relation to empire state commercial
  production tax credit; and to amend section 8 of part V of chapter  62
  of  the laws of 2006 amending the tax law relating to the empire state
  commercial production tax credit

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Paragraph  2  of subdivision (a) of section 28 of the tax
law, as amended by chapter 300 of the laws of 2007, subparagraph (i)  as
amended  by  chapter  448  of  the  laws  of 2009, is amended to read as
follows:
  (2) The state has annually [seven] TEN million dollars  in  total  tax
credits to disburse to all eligible commercial production companies. The
[seven]  TEN  million  dollars  in  total tax credits shall be allocated
according to subparagraphs (i), (ii) [and], (iii) AND (IV) of this para-
graph:
  (i) The state annually will disburse [three] FOUR AND ONE-HALF million
of the total  [seven]  TEN  million  in  tax  credits  to  all  eligible
production  companies  and the amount of the credit shall be the product
(or pro rata share of the product, in the case of a member of a partner-
ship) of twenty percent  of  the  qualified  production  costs  paid  or
incurred  in the production of a qualified commercial, provided that the
qualified production costs paid or incurred are attributable to the  use
of  tangible property or the performance of services within the state in
the production of such qualified commercial. To  be  eligible  for  said
credit  the  total  qualified production costs of a qualified production

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10632-03-1
              

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company must be greater in the aggregate  during  the  current  calendar
year  than  the average of the three previous years for which the credit
was applied. Provided, however, that until a qualified production compa-
ny  has  established  a  three year history, the credit will be based on
either the previous year or the  average  of  the  two  previous  years,
whichever  period is longer for the qualified production company seeking
the credit. If the qualified production company has  never  applied  for
the  growth  credit,  the  previous year's data will be used to create a
benchmark. The tax credit shall be applied only to  the  amount  of  the
total  qualified  production costs of the current calendar year that are
greater than the total amount of production  costs  of  the  appropriate
measurement  period  as  described  in this subparagraph. The tax credit
must be distributed to eligible  production  companies  on  a  pro  rata
basis,  provided,  however,  that  no  such qualified production company
shall receive more than three hundred thousand dollars annually for such
credit. The credit shall be allowed for the taxable year  in  which  the
production of such qualified commercial is completed.
  (ii)  The  state  annually  will  disburse  [three]  FOUR AND ONE-HALF
million of the total [seven] TEN million in tax credits to all  eligible
production companies who film or record qualified commercials within the
metropolitan  commuter  transportation  district  as  defined in section
twelve hundred sixty-two of the public authorities law.  The  amount  of
the  credit  shall  be the product (or pro rata share of the product, in
the case of a member of a partnership) of five percent of the  qualified
production  costs  paid  or  incurred  in  the production of a qualified
commercial,  provided  that  the  qualified  production  costs  paid  or
incurred  are  attributable  to  the  use  of  tangible  property or the
performance of services within the state in the production of such qual-
ified commercial. To be eligible for said  credit  the  total  qualified
production  costs of a qualified production company must be greater than
five hundred thousand dollars in the aggregate during the calendar year.
Such credit will be applied to qualified production costs exceeding five
hundred thousand dollars in a calendar year.
  (iii) The state annually  will  disburse  one  million  of  the  total
[seven]  TEN million in tax credits to all eligible production companies
who film or record a qualified commercial outside  of  the  metropolitan
commuter  transportation  district  as defined in section twelve hundred
sixty-two of the public authorities law. The amount of the credit  shall
be  the  product  (or  pro  rata  share of the product, in the case of a
member of a partnership) of five percent  of  the  qualified  production
costs  paid  or  incurred  in  the production of a qualified commercial,
provided that the  qualified  production  costs  paid  or  incurred  are
attributable  to  the  use  of  tangible  property or the performance of
services within the state in the production of  such  qualified  commer-
cial.  To  be  eligible  for  said credit the total qualified production
costs of a qualified production company must be greater than two hundred
thousand dollars in the aggregate during the calendar year. Such  credit
will  be  applied  to  qualified  production costs exceeding two hundred
thousand dollars in a calendar year.
  (IV) PROVIDED, HOWEVER, IF THERE IS ANY MONEY REMAINING FOR THE ANNUAL
TAX CREDIT DISBURSEMENT AS DESCRIBED IN SUBPARAGRAPH (III) OF THIS PARA-
GRAPH, SUCH MONEY SHALL BE DISBURSED TO ALL ELIGIBLE  PRODUCTION  COMPA-
NIES  SATISFYING THE CRITERIA SET FORTH IN SUBPARAGRAPHS (I) AND (II) OF
THIS PARAGRAPH ON A PRO RATA BASIS.
  S 2. Section 8 of part V of chapter 62 of the laws  of  2006  amending
the tax law relating to the empire state commercial production tax cred-

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it,  as  amended  by chapter 440 of the laws of 2006, subdivision (d) as
amended by chapter 300 of the laws  of  2007,  is  amended  to  read  as
follows:
  S  8. Maximum amount of credits. (a) The aggregate amount of tax cred-
its allowed under subparagraph (i) of paragraph 2 of subdivision (a)  of
section 28, subdivision 38 of section 210 and subsection (jj) of section
606  of the tax law in any calendar year shall be $[3] 4.5 million. Such
aggregate amount of credits shall be allocated by the governor's  office
for  motion  picture and television development among taxpayers on a pro
rata basis.  Such office shall establish by rules and regulations a date
certain on which the taxpayers eligible for  such  pro  rata  allocation
shall be determined.
  (b)  The  aggregate  amount  of tax credits allowed under subparagraph
(ii) of paragraph 2 of subdivision (a) of section 28, subdivision 38  of
section  210  and  subsection  (jj) of section 606 of the tax law in any
calendar year shall be $[3] 4.5 million. Such aggregate amount of  cred-
its  shall  be allocated by the governor's office for motion picture and
television development among taxpayers on a pro rata basis. If the total
amount of allocated credits applied for in any particular  year  exceeds
the  aggregate  amount  of  tax credits allowed for such year under this
section, such excess shall be treated as having been applied for on  the
first day of the subsequent year.
  (c)  The  aggregate  amount  of tax credits allowed under subparagraph
(iii) of paragraph 2 of subdivision (a) of section 28, subdivision 38 of
section 210 and subsection (jj) of section 606 of the  tax  law  in  any
calendar  year  shall  be  $1  million. Such aggregate amount of credits
shall be allocated by the governor's office for motion picture and tele-
vision development among taxpayers on a pro rata  basis.  If  the  total
amount  of  allocated credits applied for in any particular year exceeds
the aggregate amount of tax credits allowed for  such  year  under  this
section,  such excess shall be treated as having been applied for on the
first day of the subsequent year.
  (d) The aggregate amount  of  tax  credits  allowed  pursuant  to  the
authority  of  subdivision  (c) of section 1201-a  of the tax law in any
calendar year shall be $[3] 4.5 million for 2007 through 2011  allocated
equally  to  the credit substantially identical to credits allowed under
subparagraphs (i) and (ii) of paragraph 2 of section 28 of the tax  law.
Such  aggregate  amount  of  credits  shall  be allocated by the mayor's
office of film, theater and broadcasting among taxpayers on a  pro  rata
basis.  Such  credits  shall be allocated in amounts to be determined by
the city via local law and such credits shall be substantially identical
to credits allowed under subparagraphs (i) and (ii) of  paragraph  2  of
subdivision  (a) of section 28 of the tax law.  Provided however nothing
herein shall preclude the city via local law from allocating its  entire
annual  amount  of  credits  to  one  category  of credits allowed under
subparagraph (i) or (ii) of paragraph 2 of subdivision (a) of section 28
of the tax law.
  (e) The New York state commissioner  of  economic  development,  after
consulting with the New York state commissioner of taxation and finance,
the  New  York  city  commissioner  of finance and the mayor's office of
film, theater and broadcasting shall promulgate regulations  by  October
31,  2006  to  establish procedures for the allocation of tax credits as
required by subdivisions (a), (b) and (c) of this  section.  Such  rules
and  regulations  shall  include  provisions  describing the application
process, the due dates for such applications, the standards which  shall
be  used  to  evaluate  the applications, the documentation that will be

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provided to taxpayers to substantiate to the New York  state  department
of  taxation  and finance or the New York city department of finance the
amount of tax credits  allocated  to  such  taxpayers,  and  such  other
provisions  as are deemed necessary and appropriate. Notwithstanding any
other provisions to the contrary in the state  administrative  procedure
act or the city administrative procedure act, such rules and regulations
may  be  adopted on an emergency basis if necessary to meet such October
31, 2006 deadline.
  S 3. This act shall take effect immediately and shall apply to taxable
years beginning on and after January 1, 2011;  provided,  however,  that
the  amendments  to  paragraph 2 of subdivision (a) of section 28 of the
tax law made by section one of this act shall not affect the  repeal  of
such section and shall be deemed repealed therewith.