S. 7653 2
3. "CERTIFICATE OF ELIGIBILITY" MEANS THE DOCUMENT ISSUED BY THE
DEPARTMENT TO AN APPLICANT THAT HAS COMPLETED AN APPLICATION TO BE
ADMITTED INTO THE CAPITAL INVESTMENT JOBS RETENTION PROGRAM AND HAS BEEN
ACCEPTED INTO THE PROGRAM BY THE DEPARTMENT. POSSESSION OF A CERTIFICATE
OF ELIGIBILITY DOES NOT BY ITSELF GUARANTEE THE ELIGIBILITY TO CLAIM THE
TAX CREDIT.
4. "CERTIFICATE OF TAX CREDIT" MEANS THE DOCUMENT ISSUED TO A PARTIC-
IPANT BY THE DEPARTMENT, AFTER THE DEPARTMENT HAS VERIFIED THAT THE
PARTICIPANT HAS MET ALL APPLICABLE ELIGIBILITY CRITERIA IN THIS ARTICLE.
THE CERTIFICATE SHALL BE ISSUED ANNUALLY IF SUCH CRITERIA ARE SATISFIED
AND SHALL SPECIFY THE EXACT AMOUNT OF EACH TAX CREDIT UNDER THIS ARTICLE
THAT A PARTICIPANT MAY CLAIM, PURSUANT TO SECTION FOUR HUNDRED
FORTY-FOUR OF THIS ARTICLE, AND SHALL SPECIFY THE TAXABLE YEAR IN WHICH
SUCH CREDIT MAY BE CLAIMED.
5. "DISTRIBUTION CENTER" MEANS A LARGE SCALE FACILITY INVOLVING PROC-
ESSING, REPACKAGING AND/OR MOVEMENT OF FINISHED OR SEMI-FINISHED GOODS
TO RETAIL LOCATIONS ACROSS A MULTI-STATE AREA.
6. "FINANCIAL SERVICES DATA CENTERS" OR "FINANCIAL SERVICES CUSTOMER
BACK OFFICE OPERATIONS" MEANS OPERATIONS THAT MANAGE THE DATA OR
ACCOUNTS OF EXISTING CUSTOMERS OR PROVIDE PRODUCT OR SERVICE INFORMATION
AND SUPPORT TO CUSTOMERS OF FINANCIAL SERVICES COMPANIES, INCLUDING
BANKS, OTHER LENDERS, SECURITIES AND COMMODITIES BROKERS AND DEALERS,
INVESTMENT BANKS, PORTFOLIO MANAGERS, TRUST OFFICES, AND INSURANCE
COMPANIES.
7. "IMPACTED JOBS" MEANS JOBS EXISTING AT A BUSINESS ENTERPRISE AT A
LOCATION OR LOCATIONS WITHIN THE COUNTY DECLARED AN EMERGENCY BY THE
GOVERNOR ON THE DAY IMMEDIATELY PRECEDING THE DAY ON WHICH THE EVENT
LEADING TO THE EMERGENCY DECLARATION BY THE GOVERNOR OCCURRED.
8. "MANUFACTURING" MEANS THE PROCESS OF WORKING RAW MATERIALS INTO
PRODUCTS SUITABLE FOR USE OR WHICH GIVES NEW SHAPES, NEW QUALITY OR NEW
COMBINATIONS TO MATTER WHICH HAS ALREADY GONE THROUGH SOME ARTIFICIAL
PROCESS BY THE USE OF MACHINERY, TOOLS, APPLIANCES, OR OTHER SIMILAR
EQUIPMENT. "MANUFACTURING" DOES NOT INCLUDE AN OPERATION THAT INVOLVES
ONLY THE ASSEMBLY OF COMPONENTS, PROVIDED, HOWEVER, THE ASSEMBLY OF
MOTOR VEHICLES OR OTHER HIGH VALUE-ADDED PRODUCTS SHALL BE CONSIDERED
MANUFACTURING.
9. "PARTICIPANT" MEANS A BUSINESS ENTITY THAT:
(A) HAS COMPLETED AN APPLICATION PRESCRIBED BY THE DEPARTMENT TO BE
ADMITTED INTO THE PROGRAM;
(B) HAS BEEN ISSUED A CERTIFICATE OF ELIGIBILITY BY THE DEPARTMENT;
(C) HAS DEMONSTRATED THAT IT MEETS THE ELIGIBILITY CRITERIA IN SECTION
FOUR HUNDRED FORTY-TWO AND SUBDIVISION TWO OF SECTION FOUR HUNDRED
FORTY-THREE OF THIS ARTICLE; AND
(D) HAS BEEN CERTIFIED AS A PARTICIPANT BY THE COMMISSIONER.
10. "PRELIMINARY SCHEDULE OF BENEFITS" MEANS THE MAXIMUM AGGREGATE
AMOUNT OF THE TAX CREDIT THAT A PARTICIPANT IN THE EMPIRE STATE JOBS
RETENTION PROGRAM IS ELIGIBLE TO RECEIVE PURSUANT TO THIS ARTICLE. THE
SCHEDULE SHALL INDICATE THE ANNUAL AMOUNT OF THE CREDIT A PARTICIPANT
MAY CLAIM IN EACH OF ITS TEN YEARS OF ELIGIBILITY. THE PRELIMINARY SCHE-
DULE OF BENEFITS SHALL BE ISSUED BY THE DEPARTMENT WHEN THE DEPARTMENT
APPROVES THE APPLICATION FOR ADMISSION INTO THE PROGRAM. THE COMMISSION-
ER MAY AMEND THAT SCHEDULE, PROVIDED THAT THE COMMISSIONER COMPLIES WITH
THE CREDIT CAPS IN SECTION THREE HUNDRED FIFTY-NINE OF THIS CHAPTER.
11. "PROJECT SITE" MEANS A SINGLE LOCATION FROM WHICH OPERATIONS ARE
CONDUCTED AND MANUFACTURERS MAY DESIGNATE MULTIPLE LOCATIONS CONSISTING
S. 7653 3
OF ONE OR MORE INTEGRATED BUILDINGS OR STRUCTURES WITHIN A FIFTEEN-MILE
RADIUS AS ONE PROJECT SITE.
12. "RELATED PERSON" MEANS A RELATED PERSON PURSUANT TO SUBPARAGRAPH
(C) OF PARAGRAPH THREE OF SUBSECTION (B) OF SECTION FOUR HUNDRED SIXTY-
FIVE OF THE INTERNAL REVENUE CODE.
13. "SCIENTIFIC RESEARCH AND DEVELOPMENT" MEANS CONDUCTING RESEARCH
AND EXPERIMENTAL DEVELOPMENT IN THE PHYSICAL, ENGINEERING, AND LIFE
SCIENCES, INCLUDING BUT NOT LIMITED TO AGRICULTURE, ELECTRONICS, ENVI-
RONMENTAL, BIOLOGY, BOTANY, BIOTECHNOLOGY, COMPUTERS, CHEMISTRY, FOOD,
FISHERIES, FORESTS, GEOLOGY, HEALTH, MATHEMATICS, MEDICINE, OCEANOGRA-
PHY, PHARMACY, PHYSICS, VETERINARY, AND OTHER ALLIED SUBJECTS. FOR THE
PURPOSES OF THIS ARTICLE, SCIENTIFIC RESEARCH AND DEVELOPMENT DOES NOT
INCLUDE MEDICAL OR VETERINARY LABORATORY TESTING FACILITIES.
13. "SOFTWARE DEVELOPMENT" MEANS THE CREATION OF CODED COMPUTER
INSTRUCTIONS AND INCLUDES NEW MEDIA AS DEFINED BY THE COMMISSIONER IN
REGULATIONS.
S 442. ELIGIBILITY CRITERIA. 1. TO BE A PARTICIPANT IN THE CAPITAL
INVESTMENT JOBS RETENTION PROGRAM, A BUSINESS ENTITY SHALL:
(A) OPERATE IN NEW YORK STATE PREDOMINANTLY:
(I) AS A FINANCIAL SERVICES DATA CENTER OR A FINANCIAL SERVICES BACK
OFFICE OPERATION;
(II) IN MANUFACTURING;
(III) IN SOFTWARE DEVELOPMENT AND NEW MEDIA;
(IV) IN SCIENTIFIC RESEARCH AND DEVELOPMENT;
(V) IN AGRICULTURE;
(VI) IN THE CREATION OR EXPANSION OF BACK OFFICE OPERATIONS IN THE
STATE; OR
(VII) IN A DISTRIBUTION CENTER.
(B) INVEST AT LEAST FIFTY MILLION DOLLARS IN FIXED ASSETS FOR MANUFAC-
TURING OPERATIONS OR TWENTY MILLION IN FIXED ASSETS FOR SIGNIFICANT
CORPORATE ADMINISTRATIVE FUNCTIONS AT THE PROJECT SITE. SUCH INVESTMENT
SHALL BE COMPLETED WITHIN THE THREE CONSECUTIVE CALENDAR YEARS PRECEDING
THE TAXABLE YEAR IN WHICH SUCH PARTICIPANT FIRST CLAIMS THE TAX CREDIT
SET FORTH IN THIS ARTICLE. IN CALCULATING SUCH INVESTMENT, THE PARTIC-
IPANT MAY NOT INCLUDE:
(I) PAYMENTS MADE FOR THE ACQUISITION OF PERSONAL PROPERTY THROUGH
OPERATING LEASES,
(II) PAYMENTS MADE TO RELATED MEMBERS, INCLUDING, BUT NOT LIMITED TO
RELATED ENTITIES, COMPONENT MEMBERS, OR PERSONS TO OR FROM WHOM THERE IS
ATTRIBUTION OF STOCK OWNERSHIP,
(III) ELECTED CONSOLIDATED TAXPAYERS, OR
(IV) PERSONS TREATED AS SINGLE TAXPAYERS KNOWN AS COMBINED TAXPAYERS.
(C) AGREE TO MAINTAIN OPERATIONS AT THE PROJECT SITE FOR AT LEAST THE
GREATER OF:
(I) THE TERM OF THE TAX CREDIT PLUS THREE YEARS, OR
(II) SEVEN YEARS.
(D) DEMONSTRATE TO THE COMMISSIONER THAT:
(I) IT IS ECONOMICALLY SOUND AND POSSESSES THE FINANCIAL CAPABILITY TO
COMPLETE THE REQUIRED CAPITAL INVESTMENT, AND
(II) THE TAX CREDIT PROVIDED FOR IN THIS ARTICLE IS A MAJOR FACTOR IN
ITS DETERMINATION TO BEGIN, CONTINUE AND COMPLETE THE CAPITAL INVESTMENT
PROJECT.
(E) PROVIDE THE COMMISSIONER WITH A LETTER OF SUPPORT FROM THE LOCAL
COMMUNITY IN WHICH THE PROJECT IS LOCATED.
2. WHEN DETERMINING WHETHER AN APPLICANT IS OPERATING PREDOMINANTLY IN
ONE OF THE INDUSTRIES LISTED IN SUBDIVISION ONE OF THIS SECTION, THE
S. 7653 4
COMMISSIONER SHALL EXAMINE THE NATURE OF THE BUSINESS ACTIVITY AT THE
LOCATION FOR THE PROPOSED PROJECT AND WILL MAKE ELIGIBILITY DETERMI-
NATIONS BASED ON SUCH ACTIVITY.
3. FOR THE PURPOSES OF THIS ARTICLE, IN ORDER TO PARTICIPATE IN THE
CAPITAL INVESTMENT JOBS RETENTION PROGRAM, A BUSINESS ENTITY OPERATING
IN ONE OF THE STRATEGIC INDUSTRIES LISTED IN SUBDIVISION ONE OF THIS
SECTION:
(A) SHALL EMPLOY AT LEAST TWO HUNDRED FULL-TIME EQUIVALENT JOBS AT THE
PROJECT SITE DURING THE TIME FOR WHICH THE TAX CREDIT IS GRANTED, AND
(B) SHALL CONTINUE TO EMPLOY AT LEAST TWO HUNDRED FULL-TIME EQUIVALENT
EMPLOYEES FOR THE DURATION OF THE AGREEMENT ENTERED INTO WITH THE EMPIRE
STATE DEVELOPMENT CORPORATION; PROVIDED, HOWEVER, THAT THE BUSINESS
ENTITY SHALL NOT INCLUDE FULL-TIME EQUIVALENT POSITIONS WHOSE EXISTENCE
ARE PREDICATED UPON THE ASSISTANCE OFFERED BY THE TAX CREDIT.
4. AN INTRASTATE RELOCATION PROJECT, A NOT-FOR-PROFIT BUSINESS ENTITY,
A BUSINESS ENTITY WHOSE PRIMARY FUNCTION IS THE PROVISION OF SERVICES
INCLUDING PERSONAL SERVICES, BUSINESS SERVICES, OR THE PROVISION OF
UTILITIES, A BUSINESS ENTITY ENGAGED PREDOMINANTLY IN THE RETAIL OR
ENTERTAINMENT INDUSTRY, OR A COMPANY ENGAGED IN THE GENERATION OR
DISTRIBUTION OF ELECTRICITY, THE DISTRIBUTION OF NATURAL GAS, OR THE
PRODUCTION OF STEAM ASSOCIATED WITH THE GENERATION OF ELECTRICITY ARE
NOT ELIGIBLE TO RECEIVE THE TAX CREDIT DESCRIBED IN THIS ARTICLE.
5. A BUSINESS ENTITY MUST BE IN COMPLIANCE WITH ALL WORKER PROTECTION
AND ENVIRONMENTAL LAWS AND REGULATIONS. IN ADDITION, A BUSINESS ENTITY
MAY NOT OWE PAST DUE STATE TAXES. IN ADDITION, A BUSINESS ENTITY MUST
NOT OWE LOCAL PROPERTY TAXES FOR ANY YEAR PRIOR TO THE YEAR IN WHICH IT
APPLIES TO PARTICIPATE IN THE CAPITAL INVESTMENT JOBS RETENTION PROGRAM.
S 443. APPLICATION AND APPROVAL PROCESS. 1. A BUSINESS ENTERPRISE
SHALL SUBMIT A COMPLETED APPLICATION AS PRESCRIBED BY THE COMMISSIONER.
SUCH COMPLETED APPLICATION SHALL BE SUBMITTED TO THE COMMISSIONER WITHIN
ONE HUNDRED EIGHTY DAYS OF THE ENACTMENT OF THIS ARTICLE.
2. AS PART OF SUCH APPLICATION, EACH BUSINESS ENTERPRISE SHALL:
(A) AGREE TO ALLOW THE DEPARTMENT OF TAXATION AND FINANCE TO SHARE ITS
TAX INFORMATION WITH THE DEPARTMENT. HOWEVER, ANY INFORMATION SHARED AS
A RESULT OF THIS AGREEMENT SHALL NOT BE AVAILABLE FOR DISCLOSURE OR
INSPECTION UNDER THE STATE FREEDOM OF INFORMATION LAW.
(B) AGREE TO ALLOW THE DEPARTMENT OF LABOR TO SHARE ITS TAX AND
EMPLOYER INFORMATION WITH THE DEPARTMENT. HOWEVER, ANY INFORMATION
SHARED AS A RESULT OF THIS AGREEMENT SHALL NOT BE AVAILABLE FOR DISCLO-
SURE OR INSPECTION UNDER THE STATE FREEDOM OF INFORMATION LAW.
(C) ALLOW THE DEPARTMENT AND ITS AGENTS ACCESS TO ANY AND ALL BOOKS
AND RECORDS THE DEPARTMENT MAY REQUIRE TO MONITOR COMPLIANCE.
(D) AGREE TO BE PERMANENTLY DISQUALIFIED FOR EMPIRE ZONE TAX BENEFITS
AT ANY LOCATION OR LOCATIONS THAT QUALIFY FOR CAPITAL INVESTMENT JOBS
RETENTION PROGRAM BENEFITS IF ADMITTED INTO THE CAPITAL INVESTMENT JOBS
RETENTION PROGRAM.
(E) PROVIDE THE FOLLOWING INFORMATION TO THE DEPARTMENT UPON REQUEST:
(I) A PLAN OUTLINING THE SCHEDULE FOR MEETING THE JOBS RETENTION
REQUIREMENTS AS SET FORTH IN SUBDIVISION THREE OF SECTION FOUR HUNDRED
FORTY-TWO OF THIS ARTICLE. SUCH PLAN MUST INCLUDE DETAILS ON JOBS TITLES
AND EXPECTED SALARIES;
(II) THE PRIOR THREE YEARS OF FEDERAL AND STATE INCOME OR FRANCHISE
TAX RETURNS, UNEMPLOYMENT INSURANCE QUARTERLY RETURNS, REAL PROPERTY TAX
BILLS AND AUDITED FINANCIAL STATEMENTS; AND
S. 7653 5
(III) THE EMPLOYER IDENTIFICATION OR SOCIAL SECURITY NUMBERS FOR ALL
RELATED PERSONS TO THE APPLICANT, INCLUDING THOSE OF ANY MEMBERS OF A
LIMITED LIABILITY COMPANY OR PARTNERS IN A PARTNERSHIP.
(F) PROVIDE A CLEAR AND DETAILED PRESENTATION OF ALL RELATED PERSONS
TO THE APPLICANT TO ASSURE THE DEPARTMENT THAT JOBS ARE NOT BEING SHIFT-
ED WITHIN THE STATE.
(G) CERTIFY, UNDER PENALTY OF PERJURY, THAT IT IS IN SUBSTANTIAL
COMPLIANCE WITH ALL ENVIRONMENTAL, WORKER PROTECTION, AND LOCAL, STATE,
AND FEDERAL TAX LAWS.
3. AFTER REVIEWING A BUSINESS ENTERPRISE'S COMPLETED APPLICATION AND
DETERMINING THAT THE BUSINESS ENTERPRISE WILL MEET THE CONDITIONS SET
FORTH IN SUBDIVISION THREE OF SECTION FOUR HUNDRED FORTY-TWO OF THIS
ARTICLE, THE DEPARTMENT MAY ADMIT THE APPLICANT INTO THE PROGRAM AND
PROVIDE THE APPLICANT WITH A CERTIFICATE OF ELIGIBILITY AND A PRELIMI-
NARY SCHEDULE OF BENEFITS BY YEAR BASED ON THE APPLICANT'S PROJECTIONS
AS SET FORTH IN ITS APPLICATION. THIS PRELIMINARY SCHEDULE OF BENEFITS
DELINEATES THE MAXIMUM POSSIBLE BENEFITS AN APPLICANT MAY RECEIVE.
4. IN ORDER TO BECOME A PARTICIPANT IN THE PROGRAM, AN APPLICANT SHALL
SUBMIT EVIDENCE THAT IT SATISFIES THE ELIGIBILITY CRITERIA SPECIFIED IN
SECTION FOUR HUNDRED FORTY-TWO OF THIS ARTICLE AND SUBDIVISION TWO OF
THIS SECTION IN SUCH FORM AS THE COMMISSIONER MAY PRESCRIBE. AFTER
REVIEWING SUCH EVIDENCE AND FINDING IT SUFFICIENT, THE DEPARTMENT SHALL
CERTIFY THE APPLICANT AS A PARTICIPANT AND ISSUE TO THAT PARTICIPANT A
CERTIFICATE OF TAX CREDIT FOR ONE TAXABLE YEAR. TO RECEIVE A CERTIFICATE
OF TAX CREDIT FOR SUBSEQUENT TAXABLE YEARS, THE PARTICIPANT MUST SUBMIT
TO THE DEPARTMENT A PERFORMANCE REPORT DEMONSTRATING THAT THE PARTIC-
IPANT CONTINUES TO SATISFY THE ELIGIBILITY CRITERIA SPECIFIED IN SECTION
FOUR HUNDRED FORTY-TWO OF THIS ARTICLE AND SUBDIVISION TWO OF THIS
SECTION.
5. A PARTICIPANT MAY CLAIM TAX BENEFITS COMMENCING IN THE FIRST TAXA-
BLE YEAR THAT THE BUSINESS ENTERPRISE RECEIVES A CERTIFICATE OF TAX
CREDIT OR THE FIRST TAXABLE YEAR LISTED ON ITS PRELIMINARY SCHEDULE OF
BENEFITS, WHICHEVER IS LATER. A PARTICIPANT MAY CLAIM SUCH BENEFITS FOR
THE NEXT NINE CONSECUTIVE TAXABLE YEARS, PROVIDED THAT THE PARTICIPANT
DEMONSTRATES TO THE DEPARTMENT THAT IT CONTINUES TO SATISFY THE ELIGI-
BILITY CRITERIA SPECIFIED IN SECTION FOUR HUNDRED FORTY-TWO OF THIS
ARTICLE AND SUBDIVISION TWO OF THIS SECTION IN EACH OF THOSE TAXABLE
YEARS.
S 444. CAPITAL INVESTMENT JOBS RETENTION PROGRAM CREDIT. 1. A PARTIC-
IPANT IN THE CAPITAL INVESTMENT JOBS RETENTION PROGRAM SHALL BE ELIGIBLE
TO CLAIM A CREDIT FOR THE IMPACTED JOBS. THE AMOUNT OF SUCH CREDIT SHALL
BE EQUAL TO SEVENTY-FIVE PERCENT OF THE NEW YORK STATE INCOME TAXES
WITHHELD FROM ELIGIBLE FULL-TIME EMPLOYEES.
2. THE TAX CREDIT ESTABLISHED IN THIS SECTION SHALL BE REFUNDABLE AS
PROVIDED IN THE TAX LAW. IF A PARTICIPANT FAILS TO SATISFY THE ELIGIBIL-
ITY CRITERIA IN ANY ONE YEAR, IT WILL LOSE THE ABILITY TO CLAIM CREDIT
FOR THAT YEAR. THE EVENT OF SUCH FAILURE SHALL NOT EXTEND THE ORIGINAL
TEN-YEAR ELIGIBILITY PERIOD.
3. (A) THE BUSINESS ENTERPRISE SHALL BE ALLOWED TO CLAIM THE CREDIT AS
PRESCRIBED IN SECTION THIRTY-SEVEN OF THE TAX LAW; PROVIDED, HOWEVER, A
BUSINESS ENTERPRISE SHALL NOT BE ALLOWED TO CLAIM THE CREDIT PRIOR TO
TAX YEAR TWO THOUSAND THIRTEEN.
(B) ANY INDIVIDUAL THAT IS A MEMBER OR EMPLOYEE OF A PARTICIPANT MAY
CLAIM THE PRO RATA SHARE OF THE CREDIT EARNED BY SUCH PARTICIPANT.
4. A PARTICIPANT MAY BE ELIGIBLE FOR BENEFITS UNDER THIS ARTICLE AS
WELL AS ARTICLE SEVENTEEN OF THIS CHAPTER, PROVIDED THE PARTICIPANT CAN
S. 7653 6
ONLY RECEIVE BENEFITS PURSUANT TO SUBDIVISION TWO OF SECTION THREE
HUNDRED FIFTY-FIVE OF THIS CHAPTER FOR COSTS IN EXCESS OF COSTS RECOV-
ERED BY INSURANCE.
S 445. POWERS AND DUTIES OF THE COMMISSIONER. 1. THE COMMISSIONER
SHALL PROMULGATE REGULATIONS ESTABLISHING AN APPLICATION PROCESS AND
ELIGIBILITY CRITERIA, THAT WILL BE APPLIED CONSISTENT WITH THE PURPOSES
OF THIS ARTICLE, SO AS NOT TO EXCEED THE ANNUAL CAP ON TAX CREDITS SET
FORTH IN SECTION THREE HUNDRED FIFTY-NINE OF THIS CHAPTER WHICH,
NOTWITHSTANDING ANY PROVISIONS TO THE CONTRARY IN THE STATE ADMINISTRA-
TIVE PROCEDURE ACT, MAY BE ADOPTED ON AN EMERGENCY BASIS. SUCH REGU-
LATIONS SHALL INCLUDE, BUT NOT BE LIMITED TO, CRITERIA FOR DETERMINING
WHETHER A BUSINESS ENTITY IS ECONOMICALLY SOUND AND POSSESSES THE FINAN-
CIAL CAPABILITY TO COMPLETE THE REQUIRED CAPITAL INVESTMENT AND WHETHER
THE TAX CREDIT PROVIDED FOR IN THIS ARTICLE IS A MAJOR FACTOR IN THE
DETERMINATION OF SUCH BUSINESS ENTITY TO BEGIN, CONTINUE AND COMPLETE
THE CAPITAL INVESTMENT PROJECT.
2. THE COMMISSIONER SHALL, IN CONSULTATION WITH THE DEPARTMENT OF
TAXATION AND FINANCE, DEVELOP A CERTIFICATE OF TAX CREDIT THAT SHALL BE
ISSUED BY THE COMMISSIONER TO PARTICIPANTS. PARTICIPANTS MAY BE REQUIRED
BY THE COMMISSIONER OF TAXATION AND FINANCE TO INCLUDE THE CERTIFICATE
OF TAX CREDIT WITH THEIR TAX RETURN TO RECEIVE ANY TAX BENEFITS UNDER
THIS ARTICLE.
3. THE COMMISSIONER SHALL SOLELY DETERMINE THE ELIGIBILITY OF ANY
APPLICANT APPLYING FOR ENTRY INTO THE PROGRAM AND SHALL REMOVE ANY
PARTICIPANT FROM THE PROGRAM FOR FAILING TO MEET ANY OF THE REQUIREMENTS
SET FORTH IN SUBDIVISION TWO OF SECTION FOUR HUNDRED FORTY-THREE OF THIS
ARTICLE, OR FOR FAILING TO MEET THE JOB RETENTION REQUIREMENTS SET FORTH
IN SUBDIVISION THREE OF SECTION FOUR HUNDRED FORTY-TWO OF THIS ARTICLE,
OR FOR FAILING TO MEET THE REQUIREMENTS OF SUBDIVISION FIVE OF SECTION
FOUR HUNDRED FORTY-TWO OF THIS ARTICLE.
S 446. MAINTENANCE OF RECORDS. EACH PARTICIPANT SHALL KEEP ALL RELE-
VANT RECORDS FOR THE DURATION OF ITS PROGRAM PARTICIPATION PLUS THREE
YEARS.
S 447. REPORTING. 1. (A) IN ORDER TO RECEIVE A TAX CREDIT CERTIFICATE
AND TO MAINTAIN ELIGIBILITY FOR THIS TAX CREDIT PROGRAM, THE TAXPAYER
MUST SUBMIT AN ANNUAL REPORT TO THE DEPARTMENT OF TAXATION AND FINANCE
BY MARCH FIRST OF THE YEAR FOLLOWING ANY YEAR FOR WHICH THE TAX CREDIT
IS CLAIMED, THE FIRST REPORT OF WHICH IS DUE MARCH FIRST OF THE YEAR
FOLLOWING THE CALENDAR YEAR IN WHICH THE INVESTMENT IS COMPLETED AND THE
TAX CREDIT BEGINS.
(B) SUCH REPORT SHALL CONTAIN THE NUMBER OF ELIGIBLE FULL-TIME EQUIV-
ALENT EMPLOYEES AND THE AMOUNT OF INCOME TAX WITHHELD FROM THOSE EMPLOY-
EES, AND THE AMOUNTS PAID TOWARDS THE COMPLETION OF THE CAPITAL INVEST-
MENT. ONCE THIS IS VERIFIED BY THE COMMISSIONER OF TAXATION AND FINANCE,
THE COMMISSIONER WILL ISSUE A TAX CREDIT CERTIFICATE TO THE TAXPAYER.
(C) THE PARTICIPANT MUST THEN SUBMIT THE TAX CREDIT CERTIFICATE WITH
THE APPLICABLE STATE TAX RETURN. IF THE TAX CREDIT IS GREATER THAN THE
STATE TAX LIABILITY, THE UNUSED PORTION MAY BE CARRIED FORWARD UP TO
THREE YEARS.
(D) FAILURE TO SUBMIT A COMPLETE AND TIMELY ANNUAL REPORT WILL RESULT
IN THE ASSESSMENT OF A FIVE HUNDRED DOLLAR LATE FEE FOR EACH ENSUING
CALENDAR MONTH THE REPORT REMAINS INCOMPLETE OR UNFILED.
(E) ONCE THE ACTIVE TERM OF THE TAX CREDIT ENDS, A POST-TERM PERIOD,
LENGTH TO BE DETERMINED BY THE EMPIRE STATE DEVELOPMENT CORPORATION,
WILL REQUIRE ANNUAL REPORTING REQUIREMENTS TO CERTIFY THAT SUBSTANTIAL
OPERATIONS REMAIN AT THE PROJECT SITE.
S. 7653 7
2. EACH PARTICIPANT MUST SUBMIT A PERFORMANCE REPORT ANNUALLY, IN SUCH
FORM AS THE COMMISSIONER MAY REQUIRE, WITHIN THIRTY DAYS OF THE END OF
THEIR TAXABLE YEAR.
3. THE COMMISSIONER SHALL PREPARE ON A QUARTERLY BASIS A PROGRAM
REPORT FOR POSTING ON THE DEPARTMENT'S WEBSITE. THE FIRST REPORT WILL BE
DUE JUNE THIRTIETH, TWO THOUSAND FOURTEEN, AND EVERY THREE MONTHS THERE-
AFTER. SUCH REPORT SHALL INCLUDE, BUT NOT BE LIMITED TO, THE FOLLOWING:
NUMBER OF APPLICANTS; NUMBER OF PARTICIPANTS APPROVED; NAMES OF PARTIC-
IPANTS; TOTAL AMOUNT OF BENEFITS CERTIFIED; BENEFITS RECEIVED PER
PARTICIPANT; TOTAL NUMBER OF RETAINED JOBS; AND SUCH OTHER INFORMATION
AS THE COMMISSIONER DETERMINES.
S 448. CAP ON TAX CREDIT. 1. THE TOTAL AMOUNT OF TAX CREDITS LISTED ON
CERTIFICATES OF TAX CREDIT ISSUED BY THE COMMISSIONER FOR ANY TAXABLE
YEAR MAY NOT EXCEED THE FOLLOWING AMOUNTS:
(A) FOR 2013, THIRTEEN MILLION DOLLARS.
(B) FOR 2014, EIGHTEEN MILLION DOLLARS.
(C) FOR 2015, TWENTY-THREE MILLION DOLLARS.
(D) FOR 2016, TWENTY-EIGHT MILLION DOLLARS.
(E) FOR 2017, THIRTY-THREE MILLION DOLLARS.
2. FOR EACH INDIVIDUAL PROJECT, THE EMPIRE STATE DEVELOPMENT CORPO-
RATION SHALL APPROVE A SCHEDULE FOR THE MAXIMUM AMOUNT OF CREDITS TO BE
ISSUED IN A CALENDAR YEAR.
S 449. PENALTIES. 1. IF A PARTICIPANT FAILS TO MAINTAIN THE JOB LEVELS
REQUIRED IN SUBDIVISION THREE OF SECTION FOUR HUNDRED FORTY-TWO OF THIS
ARTICLE, OR IN ANY OTHER WAY FAILS TO COMPLY WITH THE TERMS, THE EMPIRE
STATE DEVELOPMENT CORPORATION MAY TERMINATE OR REDUCE THE BENEFITS, OR
MAY ASK FOR A ONE HUNDRED PERCENT REFUND OF ASSISTANCE RECEIVED.
2. IF THE PARTICIPANT FAILS TO COMPLY WITH TERMS DURING THE POST-TERM
REPORTING PERIOD, THE EMPIRE STATE DEVELOPMENT CORPORATION MAY REQUIRE A
REFUND OF UP TO SEVENTY-FIVE PERCENT OF ASSISTANCE RECEIVED.
S 2. The tax law is amended by adding a new section 37 to read as
follows:
S 37. CAPITAL INVESTMENT JOBS RETENTION PROGRAM CREDIT. (A) ALLOWANCE
OF CREDIT. A TAXPAYER SUBJECT TO TAX UNDER ARTICLE NINE-A, TWENTY-TWO,
THIRTY-TWO OR THIRTY-THREE OF THIS CHAPTER SHALL BE ALLOWED A CREDIT
AGAINST SUCH TAX, PURSUANT TO THE PROVISIONS REFERENCED IN SUBDIVISION
(E) OF THIS SECTION. THE AMOUNT OF THE CREDIT, ALLOWABLE FOR TEN CONSEC-
UTIVE TAX YEARS, IS EQUAL TO THE AMOUNT DETERMINED PURSUANT TO SECTION
FOUR HUNDRED FORTY-FOUR OF THE ECONOMIC DEVELOPMENT LAW.
(B) ELIGIBILITY. TO BE ELIGIBLE FOR THE CAPITAL INVESTMENT JOBS
RETENTION CREDIT, THE TAXPAYER SHALL HAVE BEEN ISSUED A CERTIFICATE OF
TAX CREDIT BY THE DEPARTMENT OF ECONOMIC DEVELOPMENT PURSUANT TO SUBDI-
VISION FOUR OF SECTION FOUR HUNDRED FORTY-THREE OF THE ECONOMIC DEVELOP-
MENT LAW, WHICH CERTIFICATE SHALL SET FORTH THE AMOUNT OF THE CREDIT
THAT MAY BE CLAIMED FOR THE TAXABLE YEAR. A TAXPAYER MAY CLAIM SUCH
CREDIT FOR UP TO TEN CONSECUTIVE TAXABLE YEARS COMMENCING IN THE FIRST
TAXABLE YEAR THAT THE TAXPAYER RECEIVES A CERTIFICATE OF TAX CREDIT OR
THE FIRST TAXABLE YEAR LISTED ON ITS PRELIMINARY SCHEDULE OF BENEFITS,
WHICHEVER IS LATER.
HOWEVER, A TAXPAYER SHALL NOT BE ALLOWED TO CLAIM THE CREDIT PRIOR TO
THE TAX YEAR COMMENCING ON OR AFTER JANUARY FIRST, TWO THOUSAND THIRTEEN
AND BEFORE JANUARY FIRST, TWO THOUSAND FOURTEEN. THE TAXPAYER SHALL BE
ALLOWED TO CLAIM ONLY THE AMOUNT LISTED ON THE CERTIFICATE OF TAX CREDIT
FOR THAT TAXABLE YEAR. SUCH CERTIFICATE, IF REQUIRED BY THE COMMISSION-
ER, SHALL BE ATTACHED TO THE TAXPAYER'S RETURN. NO COST OR EXPENSE PAID
S. 7653 8
OR INCURRED BY THE TAXPAYER WHICH IS INCLUDED AS PART OF THE CALCULATION
OF THIS CREDIT SHALL BE THE BASIS OF ANY OTHER TAX CREDIT.
(C) INFORMATION SHARING. (1) NOTWITHSTANDING ANY PROVISION OF THIS
CHAPTER, EMPLOYEES AND OFFICERS OF THE DEPARTMENT OF ECONOMIC DEVELOP-
MENT AND THE DEPARTMENT SHALL BE ALLOWED AND ARE DIRECTED TO SHARE AND
EXCHANGE:
(A) INFORMATION DERIVED FROM TAX RETURNS OR REPORTS THAT IS RELEVANT
TO A TAXPAYER'S ELIGIBILITY TO PARTICIPATE IN THE CAPITAL INVESTMENT
JOBS RETENTION PROGRAM;
(B) INFORMATION REGARDING THE CREDIT APPLIED FOR, ALLOWED OR CLAIMED
PURSUANT TO THIS SECTION AND TAXPAYERS WHO ARE APPLYING FOR THE CREDIT
OR WHO ARE CLAIMING THE CREDIT; AND
(C) INFORMATION CONTAINED IN OR DERIVED FROM CREDIT CLAIM FORMS
SUBMITTED TO THE DEPARTMENT AND APPLICATIONS FOR ADMISSION INTO THE
CAPITAL INVESTMENT JOBS RETENTION PROGRAM.
EXCEPT AS PROVIDED IN PARAGRAPH TWO OF THIS SUBDIVISION, ALL INFORMA-
TION EXCHANGED BETWEEN THE DEPARTMENT OF ECONOMIC DEVELOPMENT AND THE
DEPARTMENT SHALL NOT BE SUBJECT TO DISCLOSURE OR INSPECTION UNDER THE
STATE'S FREEDOM OF INFORMATION LAW.
(2) NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER, THE COMMISSIONER OR
THE COMMISSIONER'S DESIGNEE IS AUTHORIZED TO RELEASE THE NAME OF EACH
TAXPAYER CLAIMING THE CREDIT AND THE AMOUNT OF THE CREDIT EARNED BY EACH
TAXPAYER. HOWEVER, IF THE TAXPAYER CLAIMS A CREDIT BECAUSE THE TAXPAYER
IS A MEMBER OF A LIMITED LIABILITY COMPANY, A PARTNER IN A PARTNERSHIP
OR A SHAREHOLDER IN A SUBCHAPTER S CORPORATION, ONLY THE NAME OF A
LIMITED LIABILITY COMPANY, PARTNERSHIP OR SUBCHAPTER S CORPORATION
PARTICIPATING IN THE CAPITAL INVESTMENT JOBS RETENTION PROGRAM AND THE
AMOUNT OF CREDIT EARNED BY THAT ENTITY MAY BE RELEASED.
(D) CREDIT RECAPTURE. IF A CERTIFICATE OF ELIGIBILITY OR A CERTIFICATE
OF TAX CREDIT ISSUED BY THE DEPARTMENT OF ECONOMIC DEVELOPMENT UNDER
ARTICLE TWENTY-ONE OF THE ECONOMIC DEVELOPMENT LAW IS REVOKED BY SUCH
DEPARTMENT, THE AMOUNT OF CREDIT DESCRIBED IN THIS SECTION AND CLAIMED
BY THE TAXPAYER PRIOR TO THAT REVOCATION SHALL BE ADDED BACK TO TAX IN
THE TAXABLE YEAR IN WHICH ANY SUCH REVOCATION BECOMES FINAL.
(E) CROSS-REFERENCES. FOR APPLICATION OF THE CREDIT PROVIDED FOR IN
THIS SECTION, SEE THE FOLLOWING PROVISIONS OF THIS CHAPTER:
(1) ARTICLE 9-A: SECTION 210, SUBDIVISION 45;
(2) ARTICLE 22: SECTION 606, SUBSECTION (UU);
(3) ARTICLE 32: SECTION 1456, SUBSECTION (Z);
(4) ARTICLE 33, SECTION 1511, SUBDIVISION (CC).
S 3. Section 210 of the tax law is amended by adding a new subdivision
45 to read as follows:
45. CAPITAL INVESTMENT JOBS RETENTION PROGRAM CREDIT. (A) ALLOWANCE OF
CREDIT. A TAXPAYER WILL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED
IN SECTION THIRTY-SEVEN OF THIS CHAPTER, AGAINST THE TAXES IMPOSED BY
THIS ARTICLE.
(B) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION
FOR ANY TAXABLE YEAR WILL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
THAN THE MINIMUM TAX FIXED BY THIS ARTICLE. HOWEVER, IF THE AMOUNT OF
CREDIT ALLOWED UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR REDUCES THE
TAX TO SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE IN SUCH
TAXABLE YEAR WILL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR
REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND
EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS OF
SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER
NOTWITHSTANDING, NO INTEREST WILL BE PAID THEREON.
S. 7653 9
S 4. Section 606 of the tax law is amended by adding a new subsection
(uu) to read as follows:
(UU) CAPITAL INVESTMENT JOBS PROGRAM RETENTION CREDIT. (1) ALLOWANCE
OF CREDIT. A TAXPAYER SHALL BE ALLOWED A CREDIT, TO BE COMPUTED AS
PROVIDED IN SECTION THIRTY-SEVEN OF THIS CHAPTER, AGAINST THE TAX
IMPOSED BY THIS ARTICLE.
(2) APPLICATION OF CREDIT. IF THE AMOUNT OF THE CREDIT ALLOWED UNDER
THIS SUBSECTION FOR ANY TAXABLE YEAR EXCEEDS THE TAXPAYER'S TAX FOR SUCH
YEAR, THE EXCESS WILL 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 WILL BE
PAID THEREON.
S 5. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
of the tax law is amended by adding a new clause (xxxiv) to read as
follows:
(XXXIV) CAPITAL INVESTMENT AMOUNT OF CREDIT UNDER SUBDIVISION
JOBS RETENTION PROGRAM CREDIT FORTY-FIVE OF SECTION TWO HUNDRED
TEN OR UNDER SUBSECTION (Z) OF
SECTION FOURTEEN HUNDRED FIFTY-SIX
S 6. Section 1456 of the tax law is amended by adding a new subsection
(z) to read as follows:
(Z) CAPITAL INVESTMENT JOBS RETENTION PROGRAM CREDIT. (1) ALLOWANCE OF
CREDIT. A TAXPAYER SHALL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED
IN SECTION THIRTY-SEVEN OF THIS CHAPTER, AGAINST THE TAXES IMPOSED BY
THIS ARTICLE.
(2) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBSECTION
FOR ANY TAXABLE YEAR WILL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
THAN THE MINIMUM TAX FIXED BY THIS ARTICLE. HOWEVER, IF THE AMOUNT OF
CREDIT ALLOWED UNDER THIS SUBSECTION FOR ANY TAXABLE YEAR REDUCES THE
TAX TO SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE IN SUCH
TAXABLE YEAR WILL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR
REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND
EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS OF
SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER
NOTWITHSTANDING, NO INTEREST WILL BE PAID THEREON.
S 7. Section 1511 of the tax law is amended by adding a new subdivi-
sion (cc) to read as follows:
(CC) CAPITAL INVESTMENT JOBS RETENTION PROGRAM CREDIT. (1) ALLOWANCE
OF CREDIT. A TAXPAYER SHALL BE ALLOWED A CREDIT, TO BE COMPUTED AS
PROVIDED IN SECTION THIRTY-SEVEN OF THIS CHAPTER, AGAINST THE TAXES
IMPOSED BY THIS ARTICLE.
(2) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION
FOR ANY TAXABLE YEAR WILL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
THAN THE MINIMUM TAX FIXED BY THIS ARTICLE. HOWEVER, IF THE AMOUNT OF
CREDIT ALLOWED UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR REDUCES THE
TAX TO SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE IN SUCH
TAXABLE YEAR WILL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR
REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND
EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS OF
SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER
NOTWITHSTANDING, NO INTEREST WILL BE PAID THEREON.
S 8. This act shall take effect immediately; provided however that
sections two, three, four, five, six and seven of this act shall apply
to taxable years beginning on and after January 1, 2013.
